US Supreme Court, 1993(55)
On 15 April 2006, President Arroyo of the Philippines ordered the commutation of all death sentences in her country – more than 1,000 – in what is believed to be the largest such act of clemency in modern times. Announcing her move, she said: "I wish to announce that we are changing our policy on those who have been imposed the death penalty. We are reducing their penalty to life imprisonment. Anyone who falls and makes mistakes has a chance to stand up and correct the wrong he has committed."
President Arroyo’s statement can be read two ways. Firstly, removing the death penalty reinstates the possibility of rehabilitation and reform on the part of an offender.(56) But removing the threat of execution also opens up the possibility that any mistakes committed by the state in its prosecution of the individual can be remedied while the prisoner is still alive. Thus clemency is justified whether Troy Davis is guilty or innocent of the murder of Officer Mark Allen McPhail.
The power of executive clemency exists as a failsafe against error and to allow consideration of evidence that the courts were unable or unwilling to reach. Clemency has been granted in a number of death penalty cases over the years in the USA, and has become more frequent as evidence of problems with the capital justice system has increased. In several cases, clemency was granted on the grounds of possible innocence.(57) In some cases, executive clemency has proven to be "the decisive step that averts a terrible miscarriage of justice".(58) In 1994, for example, the governor of Virginia commuted Earl Washington’s death sentence to life imprisonment. Six years later, DNA evidence proved his innocence and Washington was pardoned.
Support for clemency can come from many quarters, and can involve late changes in mind on the parts of officials previously involved in the case. One such case recently emerged in California. Appointed as a county-level judge by the then Governor of California Ronald Reagan in 1974, Judge Charles McGrath presided over the 1983 trial of Michael Morales at which the defendant was sentenced to death. Twenty-three years later, in January 2006, Judge McGrath wrote to state Governor Arnold Schwarzenegger to appeal for clemency for Morales. A key witness at the trial – a jailhouse informant – had testified that Morales had confessed the crime to him in jail. At the time of the trial, Judge McGrath had found the informant’s testimony to be credible, but in his letter in 2006 to the Governor, the judge wrote that "new information has emerged to show the evidence upon which I relied in sentencing Mr Morales to death – [the jailhouse informant’s] testimony – is false". Judge McGrath expressed his concern that Michael Morales had not received an evidentiary hearing in federal court.(59)
Numerous witnesses, including a jailhouse informant, whose testimony was used against Troy Davis at his trial, have since recanted or contradicted their trial testimony. Troy Davis has never had an evidentiary hearing in federal court on the issue. Justice surely demands that clemency be granted.
Indeed, the risk of error surely demands a rethink on the death penalty. In January 2007, Andrew Gossett, who was serving a 50-year prison sentence in Texas for sexual assault, was freed after DNA evidence confirmed his innocence. The case prompted the Dallas Morning News to speak out against executions:
"That juries and judges are fallible is not a revelation. Human error is an inherent part of the system. Thank goodness that in the case of Mr. Gossett a terrible wrong has been corrected… For the condemned, evidence of an error could come too late. Lethal injections don’t allow those second chances…Even the remote possibility of a mistake is unacceptable in death penalty cases.