Is a Petitioner Entitled to Testing in Order to Pursue Executive Clemency if the Results are Favorable?

Notwithstanding the narrow opening it arguably opened in Herrera for Federal habeas "actual innocence" claims, the Supreme Court stressed that executive clemency "is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted." 506 U.S. at 411-12. Clemency is supposed to act as a "fail safe" mechanism, a protection against the "unalterable fact that our judicial system, like the human beings who administer it, is fallible." Id., at 415. In fact, executive clemency has been a mechanism for obtaining postconviction DNA exonerations, particularly in Virginia, where newly discovered evidence motions are time barred 21 days after final judgment. Significantly, however, most of the Virginia proceedings that culminated in executive clemency began in court with successful requests for access to court exhibits containing critical biological evidence that was ultimately subjected to DNA testing. See NIJ Report, supra, note 3 at 57, 72.

Because clemency is "an act of grace" by the executive branch, not a right (see Herrera, 506 U.S. at 413), the issuance of a grant is highly discretionary. Some governors work with formal advisory boards, some do not, and the standards of review governors employ are usually informal, if not unabashedly susceptible to political considerations. See Berger, supra, at 966-67; Bandes, supra note 6, at 520-21. As a result, the Supreme Court has been extremely reluctant to examine, much less question, the fairness or operation of State executive clemency systems. See Ohio Adult Parole Authority v. Woodward, 523 U.S. 272 (1998); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981).

Moreover, it must be remembered that the vast majority of clemency decisions turn on forgiveness for an act committed, extraordinary rehabilitation, or other considerations that do not involve reevaluation of the guilt or innocence decision. Consequently, in the wake of Herrera, commentators studying executive clemency have identified statutory limitations, lack of money, investigatory powers, and/or expertise and have expressed serious doubt as to whether State clemency systems are doing an adequate job of assessing claims of actual innocence and wrongful conviction. See Victoria Palacios, Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases, 49 Vand. L. Rev. 311, 369-72 (1996); Henry Pietrkowski, The Diffusion of Due Process in Capital Cases of Actual Innocence After Herrera, 70 Chi.-Kent L. Rev. 1391, 1401-13 (1995). Therefore, inmates who have not yet obtained exculpatory postconviction DNA evidence should be wary about seeking access to the relevant biological case material or permission to conduct DNA tests from officials within the executive clemency system.

Another unresolved issue is whether Herrera supports a due process "access" argument for an inmate who is precluded from presenting newly discovered DNA evidence of innocence in a State court but seeks, in the alternative, DNA testing to pursue executive clemency. The reasoning of the Herrera decision, with its emphasis on executive clemency as the historic safety valve and remedy for those who cannot get newly discovered evidence of innocence heard by the courts, suggests that States should not be able to both shut the courthouse door with a time bar and arbitrarily obstruct an inmate's opportunity to enter the executive clemency system armed with exculpatory DNA test results. To buttress this argument, inmates should be prepared to show the State will not be prejudiced in any ongoing cases by the testing, and that they will pay the costs of testing, as well as any reasonable administrative expenses that arise in the handling of the evidence. Again, mindful of the Supreme Court's recent ruling in Ohio Adult Parole Authority v. Woodward, 523 U.S. 272 (1998), this argument should not be cast as a challenge to the fairness or procedures of a State's executive clemency system, but rather as the fair exercise of judicial power to obstruct or permit access to case evidence in the possession of the court or other criminal justice agencies.

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