Separation of Powers, Clemency, and Habeas in Arizona
That an inmate facing the death penalty is denied clemency is not unusual; what happened in Arizona this week was. Arizona has a clemency board that, as I understand it, was explicitly established to be a check on the executive in death penalty cases, but the Governor appears not to like that fact. As The Republic explained:
The clemency board, whose members are appointed by the governor, is supposed to make independent assessments of cases and make recommendations to [Governor] Brewer, who has final say in whether to grant a reprieve or a commuted sentence. But the former board members claim that Brewer, working through a top staff member, regularly “overtly attempted to influence” them not to grant clemency to state prisoners whose cases came before the board. (See also, Laird v. Sims, 147 P. 738 (1915).
The Board is a check and balance on the Governor under Arizona law, and it appears the Governor may be trying to get around that limit. I think that a recommendation by the Board for clemency does not mean the Governor has to grant it. Instead, it means that the Governor has more information from an independent group. But it may be that the Governor “is so concerned with appearing tough on crime that she ha[d] top aides bear down on the Arizona Board of Executive Clemency to ensure that it shows no mercy for prisoners in high-profile cases, according to former clemency-board members.” The Republic hints at possible job threats “Three of the board members were unseated for voting to recommend clemency, they said, and two resigned.” In other words, rather than make the tough call against a considered recommendation, an executive wants decisions that make certain policy stands easier.
Great power is something our country has tried to balance from its inception. We stray from checks and balances at our peril. Leaving aside whether the death penalty is OK (as that discussion is important but far too complex for this space), if one has the death penalty, a system that is cautious and considered about administering the ultimate sanction, death, shows understanding for the human condition. An extra check and evaluation, a system that requires anyone to take a stand before executing someone, matter. They invite reflection and debate. As part of the overall system of checks and balances, Arizona’s independent clemency board seems to have been born of wisdom, now undermined. That should not be the case.