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Mercy on Trial

Mercy on Trial: What It Means to Stop an Execution

Austin Sarat
Copyright Date: 2005
Pages: 352
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  • Book Info
    Mercy on Trial
    Book Description:

    On January 11, 2003, Illinois Governor George Ryan--a Republican on record as saying that "some crimes are so horrendous . . . that society has a right to demand the ultimate penalty"--commuted the capital sentences of all 167 prisoners on his state's death row. Critics demonized Ryan. For opponents of capital punishment, however, Ryan became an instant hero whose decision was seen as a signal moment in the "new abolitionist" politics to end killing by the state.

    In this compelling and timely work, Austin Sarat provides the first book-length work on executive clemency. He turns our focus from questions of guilt and innocence to the very meaning of mercy. Starting from Ryan's controversial decision,Mercy on Trialuses the lens of executive clemency in capital cases to discuss the fraught condition of mercy in American political life. Most pointedly, Sarat argues that mercy itself is on trial. Although it has always had a problematic position as a form of "lawful lawlessness," it has come under much more intense popular pressure and criticism in recent decades. This has yielded a radical decline in the use of the power of chief executives to stop executions.

    From the history of capital clemency in the twentieth century to surrounding legal controversies and philosophical debates about when (if ever) mercy should be extended, Sarat examines the issue comprehensively. In the end, he acknowledges the risks associated with mercy--but, he argues, those risks are worth taking.

    eISBN: 978-1-4008-2672-8
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Acknowledgments
    (pp. xi-xiv)
  4. CHAPTER 1 Mercy, Clemency, and Capital Punishment THE ILLINOIS STORY
    (pp. 1-32)

    On january 10 and 11, 2003, Governor George Ryan emptied Illinois’s death row. Exercising his clemency powers under the state constitution, he first pardoned 4 and then commuted 167 condemned inmates’ sentences in the broadest attack on the death penalty in decades. Ryan’s act was a compelling moment in our society’s continuing turmoil about crime and punishment, appearing, at first glance, to be a rare display of mercy in distinctly unmerciful times. As a seemingly humane, compassionate gesture in a culture whose attitudes toward punishment emphasize strictness not mercy, severity not forgiveness, it ran against the grain of today’s tough-on-crime,...

  5. CHAPTER 2 Capital Clemency in the Twentieth Century PUTTING ILLINOIS IN CONTEXT
    (pp. 33-68)

    Today capital clemency is an endangered species. Yet this is not the situation with regard to other kinds of cases. To look first at what presidents have been doing, we see that Bill Clinton pardoned and/or commuted more than four hundred sentences during his two terms. Although this number is substantially lower than the number of clemencies issued by President Carter during his single four-year term (534), it is about the same as the number issued over two terms by President Reagan.¹ And in the states, the pattern seems uneven at best, with the number of clemencies rising in some...

  6. CHAPTER 3 The Jurisprudence of Clemency WHAT PLACE FOR MERCY?
    (pp. 69-93)

    When state senator william haine labeled Governor Ryan’s clemency “the raw exercise of power against the law itself” and said that it did not display “constraint consistent with the law,”¹ he joined a long line of people who have taken governors to task for using their prerogative to spare life. He also captured something close to the heart of all exercises of mercy, whether or not they take the form of executive clemency. Mercy always contains something beyond the complete discipline or domestication of law, something essentially lawless. This is what Haine recognized in Ryan’s act and what others alleged...

    (pp. 94-115)

    Throughout most of the twentieth century, the rehabilitative ideal dominated American thought about crime and punishment.¹ Supreme Court Justice Hugo Black, writing in 1949, called it the “prevalent modern philosophy of penology. . . . Reformation and rehabilitation of offenders have,” he said, “become important goals of criminal jurisprudence.” Black noted that rehabilitation’s purpose was not to make the “lot of offenders harder. On the contrary, a strong motivating force . . . has been the belief that by careful study . . . convicted offenders could be less severely punished and restored sooner to complete freedom and useful citizenship.”²...

  8. CHAPTER 5 Clemency without Mercy GEORGE RYAN’S DILEMMA
    (pp. 116-142)

    When illinois governor george ryan announced his decision to empty that state’s death row, his speech shared many of the conventions of the standard genre of gubernatorial pardons. Yet it was in many ways a complex performance, a stitching together of different rhetorics, many borrowed from the world of judicial opinions.¹ His statement most closely resembles the justificatory act of a judge speaking through his opinion to the fact that, in a democracy, judges are often required by the structure of the judicial system to decide against majority opinion. Like a judge, Ryan presented his decision as “compelled,” an act...

    (pp. 143-162)

    At the dawn of the twenty-first century, the killing state is alive in the United States. Under pressure from external forces (globalization) and internal forces (governmentality), and backed by the public, the state’s attachment to capital punishment hangs on. Fueled by the politicization of crime and punishment and the attack on rehabilitation and redemption, the death penalty helps the state to

    occlude its ineptitude on the home front, and tame . . . “the globalization of contingency.” . . . Executed bodies perform their political mission well when their utter impotence, their absolute lack of vitality, testifies to the robust...

  10. Appendix A GEORGE RYAN: “I MUST ACT”
    (pp. 163-180)
  11. Appendix B CAPITAL CLEMENCY, 1900–2004 Commutations by State
    (pp. 181-188)
  12. Appendix C CHRONOLOGY OF CAPITAL CLEMENCY, 1900–2004 Commutations by Governor
    (pp. 189-258)
  13. Notes
    (pp. 259-316)
  14. Index
    (pp. 317-325)