Amicus Curiae Brief — Ohio Adult Parole Authority v. Woodard

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; Supreme Court, U.S. |

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FILED

No. 96-1769

IN THE SUPREME COURT OF THE UNITED STATES

OFFICE OF THE cir

OCTOBER TERM, 1996 Se

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OHIO ADULT PAROLE AUTHORITY, et al.,

Petitioner,

v.

EUGENE WOODARD,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE

STATES OF CALIFORNIA, ALABAMA, ARIZONA, ARKANSAS,

COLORADO, CONNECTICUT, DELAWARE, FLORIDA,

GEORGIA, HAWAII, IDAHO, ILLINOIS, KENTUCKY,

LOUISIANA, MAINE, MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NEW JERSEY, NORTH CAROLINA, NORTH

DAKOTA, PENNSYLVANIA, SOUTH CAROLINA, SOUTH

DAKOTA, TENNESSEE, TEXAS, WASHINGTON AND

WYOMING IN SUPPORT OF PETITIONER

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

WARD A. CAMPBELL

Deputy Attorney General

WILLIAM G. PRAHL *

Deputy Attorney General

Counsel of Record

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5262

Fax: (916) 324-2960

* Counsel for Amici Curiae

[Additional Counsel Listed on Inside Page]

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BILL PRYOR

Attorney General

State of Alabama

GRANT WOODS

Attorney General

State of Arizona

WINSTON BRYANT

Attorney General

State of Arkansas

GALE A. NORTON

Attorney General

State of Colorado

JOHN M. BAILEY

Attorney General

State of Connecticut

M. JANE BRADY

Attorney General

State of Delaware

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

THURBERT E. BAKER

Attorney General

State of Georgia

MARGARET S. BRONSTER

Attorney General

State of Hawaii

ALAN G. LANCE

Attorney General

State of Idaho

JAMES E. RYAN

Attorney General

State of Illinois

ALBERT B. CHANDLER, Il!

Attorney General

Commonwealth of

Kentucky

RICHARD P. IEYOUB

Attorney General

State of Louisiana

ANDREW KETTERER

Attorney General

State of Maine

MIKE MOORE

Attorney General

State of Mississippi

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

JOSEPH P. MAZUREK

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

PETER VERNIERO

Attorney General

State of New Jersey

MICHAEL F. BEASLEY

Attorney General

State of North Carolina

HEIDI HEITKAMP

Attorney General

State of North Dakota

D. MICHAEL FISHER

Attorney General

Commonwealth of

Pennsylvania

CHARLES M. CONDON

Attorney General

South Carolina

MARK BARNETT

Attorney General

State of South Dakota

CHARLES W. BURSON

Attorney General

State of Tennessee

DAN MORALES

Attorney General

State of Texas

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

WILLIAM U. HILL

Attorney General

State of Wyoming

(CAPITAL CASE)

QUESTION PRESENTED

1. Whether state clemency procedures may be

reviewed under the due process limitations on a state’s

overall scheme of adjudication of crimes and punishment

established by Evitts v. Lucey, 469 U.S. 387 (1985), or

whether Connecticut Board of Pardons v. Dumschat, 452

U.S. 458 (1981) contains the sole due process limitations

on those procedures.

INTEREST OF AMICI CURIAE STATES

SUMMARY OF ARGUMENT

ARGUMENT

A. Woodard’s Application Of The

Due Process Clause To

Clemency Is Constitutionally

Inappropriate Since it Offends

The Constitutional Plan for

Federal-State Relations and the

Historic Separation Of Powers

Between The Judicia] And

Executive Branches Of

Government 5

Woodard’s Recognition And Use

Of A New, So-Called "Second

Strand" Due Process Analysis Is

Constitutionally Inappropriate 1]

CONCLUSION 15

Cases

Andrews v. Gardiner,

121 N.E. 341 (N.Y.App. 1919)

Amold v. Board of Pardons & Paroles,

805 P.2d 388 (Ariz. App. 1990)

Banks v. Arizona State Board of Pardons,

629 P.2d 1035 (Ariz. App. 1981)

Bean v. Nevada,

410 F.Supp. 963 (D.Nev. 1974)

Bean v. Nevada,

535 F.2d 542 (9th Cir. 1976)

Biddle v. Percovich,

274 U.S. 480 (1927)

Binion v. United States Department of Justice,

695 F.2d 1189 (9th Cir.1983)

Blystone v. Pennsylvania,

494 US. 299 (1990)

Bundy v. Dugger,

850 F.2d 1402 (11th Cir. 1988)

Bundy v. State,

497 S.2d 1209 (Fla. 1986)

7, 10

TABLE OF AUTHORITIES, CONT’D

Burdick v. United States,

236 U.S. 79 (1915) 8

Clemons v. Mississippi,

494 U.S. 738 (1990) 9

Coleman v. Thompson,

501 U.S. 722 (1991) 9, 10, 14

Collins v. State,

550 S.W.2D 643 (Tenn. 1977) 7,8

Colvin v. Bowen,

399 N.E.2d 835 (Ind.App. 1980) 7

Connecticut Board of Pardons v. Dumschat,

452 US. 458 (1981) 2-4, 6, 9, 11-14

Eacret v. Holmes,

333 P.2d 741 (Ore. 1958) 7

Evitts v. Lucey,

469 U.S. 387 (1985) 2, 5, 8, 9, 11-14

Ex parte Garland,

4 Wall. (71 U.S.) 333 (1866) 6

Ex parte Wells,

59 U.S. 307 (1855) 8

Green v. Teets,

244 F.2d 401 (9th Cir. 1957) 7

TABLE OF AUTHORITIES, CONTD

Greenholtz v. Nebraska Penal Inmates,

442 US. 1 (1979) 9, 10, 12-14

Gregg v. Georgia,

428 U.S. 153 (1976) 10

Griffin v. Illinois,

351 U.S. 12 (1955) 13

Hatch v. State of Oklahoma,

92 F.3d 1072 (10th Cir. 1996) 7

Hennessey v. Pennsylvania Board of Pardons,

655 A.2d 218 (Pa. 1995) 7

Herrera v. Collins,

506 U.S. 390 (1993) 1, 5, 8-10

Holder v. State,

488 P.2d 600 (Okla. App. 1971) 7

LN.S. v. Yang,

__ US. __ (1995) 6

Jenkins v. Knight,

293 P.2d 6 (Cal. 1956) 7

Mallory v. State,

435 P.2d 254 (Id. 1967) 7

Medina v. California,

505 U.S. 437 (1992) 3, 5, 10, 11, 14

TABLE OF AUTHORITIES, CONT'D

Milone v. Camp,

22 F.3d 693 (7th Cir. 1994)

Misenheimer v. State,

374 N.E.2d 523 (Ind. 1978)

Monssey v. Brewer,

408 U.S. 471 (1972)

Murphy v. Ford,

390 F.Supp. 1372 (W.D.Mich. 1975)

Olim v. Wakinekona,

461 U.S. 238 (1983).

Otey v. State,

485 N.W.2d 153 (Neb. 1992)

Peck v. Battey,

721 F.2d 1157 (8th Cir. 1983)

Penn v. State,

670 S.W.2d 426 (Ark. 1984)

People ex rel. Dunbar v. District Court,

§02 P.2d 420 (Colo. 1972)

People ex rel. Symonds v. Gualano,

260 N.E.2d 284 (Ill.App. 1970)

People v. Bradney,

652 N.E.2d 428 (Ill.App. 1995)

9, 12, 13

13

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Vii

TABLE OF AUTHORITIES, CONT’D

People v. Herrera,

516 P.2d 626 (1973) 7

People v. Warren,

224 Cal.Rptr. 746 (Cal.App.1986) 7

Puerto Rico v. Branstad,

483 U.S. 219 (1987) 9

RRE. v. Glenn, :

884 S.W.2d 189 (Tex.App. 1994) 7

Rosenberg v. United States,

346 U.S. 322 (1953) 8

Ross v. Moffitt,

417 U.S. 600 (1974) 9, 10, 14

Sandin v. Connor,

_ US __ (1995). 3, 10, 12

Schick v. Reed,

419 U.S. 256 (1974) 6, 8

Ex Parte United States,

242 U.S. 27 (1916) 6

Solem v. Helm,

463 U.S. 277 (1983) 7

Solesbee v. Balckom,

339 US. 9 (1950) 7

TABLE OF AUTHORITIES, CONTD

Spinkellink v. Wainwright,

578 F.2d 582 (Sth Cir. 1978)

State ex rel. Maurer v. Sheward,

644 N.E.2d 369 (Ohio 1994)

State v. Adams,

115 S.E.2d 158 (W.V. App. 1960)

State v. Hunter,

477 A.2d 797 (Me. 1982)

State v. Robinson,

356 A.2d 449 (N.J. 1976)

Sullivan v. Askew,

348 S.2d 312 (Fla. 1977)

United States ex rel. Kaloudis v. Shaughnessy,

180 F.2d 489 (2nd Cir. 1950)

United States v. Klein,

13 Wall. (80 U.S.) 128 (1871)

United States v. Patti,

291 F.2d 745 (3rd Cir. 1961)

United States v. Wilson,

7 Pet. (32 U.S.) 150 (1833)

Wainwright v. Brownlee,

103 F.3d 708 (8th Cir. 1997)

TABLE OF AUTHORITIES, CONT’D

Whitaker v. State,

451 S.W.2d 11 (Mo. 1970)

Whittington v. Stevens,

73 S.2d 137 (Miss. 1954)

Williams v. State,

898 S.W.2d 38 (Ark. 1995)

Constitutional Provisions

United States Constitution

Fifth Amendment

Eighth Amendment

Other Authorities

Brown, The Quality of Mercy,

40 U.C.L.A. Law. Rev. 327 (1992)

The Federalist No. 74,

pp. 500-501

(J. Cooke ed. 1961)

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INTEREST OF AMICI CURIAE STATES

Amici curiae are the legal representatives of their states’

executives and of the People in their states’ postconviction

Titigation. The states have a weighty interest in the finality and

enforcement of their state criminal judgments. This interest

embraces concerns about the proliferation of postconviction claims

and levels of federal judicial review.

Amici have a significant interest in this particular case

since the Woodard court's opinion initiates an intrusive new level

of federal judicial review into an area that has historically and

exclusively been the domain of the state executive, clemency.

Furthermore, the opinion applies a heretofore unknown due

process analysis to a state’s post conviction procedures.

Every state has vested virtually unfettered clemency

powers in their executive branches. See, e.g. Herrera v. Collins, 506

U.S. 390, 414 fn. 14 (1993). The historic role of clemency as a

non-judicial executive function for extending mercy to deserving

claimants is threatened by the imposition of inadvisable and

unspecified proceduralism with inevitable judicial review. Amici

are concerned that the Woodard opinion will have a burdensome

nationwide impact on the states’ ability to enforce their criminal

judgments, especially those in capital cases, and on the historic

power of executives to exercise discretion in favor of mercy.

SUMMARY OF ARGUMENT

The petition for certiorari should be granted since the

Sixth Circuit Court of Appeals in Woodard, in an unprecedented

action, applied the Due Process Clause to the purely executive

function of clemency. Since all states provide for executive

clemency, Woodard has a potential national impact.”

Historically and constitutionally, clemency has been the

exclusive province of the almost completely unfettered discretion

of the executive and has been immune from judicial review under

traditional applications of the Due Process Clause. Connecticut

Board of Pardons v. Dumschat, 452 U.S. 460 (1981). Woodard

miscategorizes clemency as an integral part of the states’ criminal

adjudicative system and then goes on to misread Evitts v. Lucey,

469 U.S. 387 (1985) to create a second level of due process

analysis. The Woodard opinion applies this new so-called "second

strand" due process analysis to hold that clemency claimants are

entitled to unidentified yet “barely perceptible" due process

protections. This holding is not supported by either history or

precedent and is barred by the doctrine of separation of powers

between the executive and the judicial branches of government.

It is certainly foreclosed by this Court’s opinion in Dumschat.

Woodard’s most fundamental error is to mischaracterize

executive clemency as an integral part of the states’ adjudication

process for determining guilt or innocence under the states’

criminal laws. Historically, clemency is the antithesis of the states’

criminal adjudicatory process and instead is a non-judicial executive

function that is based on extra-judicial concerns such as mercy and

leniency. The decision is based on any information deemed

pertinent to the decisionmaker without the constraints of

procedure or precedent. Among the states, there is little or no

1. Petitioner is also presenting a second question to the Court

relating to the application of the Fifth Amendment to clemency

procedures. Although this brief concentrates only on the first

question presented, amici curiae believe this Court should grant the

petition as to both questions.

- executive branch.

uniformity in the constitutional or statutory methods conferred on

the executives in each state to dispense clemency. The one

constant is the investment of virtually unfettered discretion in the

The injection of due process procedural

requirements used by the judicial branch into this non-judicial

process is contrary to the entire history and purpose of clemency

and violates the separation of powers between these co-equal

branches of government.

The Woodard opinion also introduces unprecedented

levels of judicial review into a purely executive process which will

further frustrate the states’ interest in enforcing its judgments and

interfere with the executives’ clemency discretion. Ironically, just as

this Court and the Congress have acted to revise and consolidate

post-conviction review, Woodard further reopens issues already

settled by this Court about state post-appellate review. Woodard

improperly invites unprecedented and unnecessary federal judicial

review of the states’ judicial review systems as well as the

executives’ discretionary exercise of clemency. Compare Sandin v.

Connor, _US__, 115 S.Ct. 2293 (1995).

ARGUMENT

"[T]he expansion of . . . constitutional guarantees under

the open-ended rubric of the Due Process Clause invites undue

interference with both considered legislative judgments and the

careful balance that the Constitution strikes between liberty and

order." Medina v. California, 505 U.S. 437, 443 (1993). In

Connecticut Board of Pardons v. Dumschat, 452 U.S. at 464, this

Court held that inmates have no constitutional or inherent right to

clemency. In Blystone v. Pennsylvania, 494 U.S. 299, 309 (1990)

this Court held that states which have otherwise complied with the

Constitution’s Eighth Amendment requirements, “enjoy their

traditional latitude to prescribe the method by which those who

commit murder shall be punished.”

The States have organized their criminal justice systems

in reliance on these holdings and the practices they represent.

Now, the Sixth Circuit’s Woodard opinion potentially upsets the

states’ expectations based on these prior cases. For the first time,

a federal court has held that state clemency claimants are entitled

to unspecified “barely perceptible" due process protections

traditionally only applied to review the state criminal adjudication

process. Petn. at A-14. This holding is not supported by either

history or case law. Unless review is granted, the opinion will

surely add a new layer of delay and litigation in state and federal

postconvictions cases, both capital and non-capital.

_ Woodard acknowledges that this Court in Dumschat held

that clemency claimants do not have a liberty interest in the

clemency proceedings themselves. However, Woodard then

purports to discover a heretofore unknown "second strand" due

process protection based on the majority’s "belief" that clemency

is an integral part of the states’ criminal prosecution system for the

adjudication of guilt or innocence. Petn. at A-1]1. Just as

troubling, the Woodard opinion fails to even identify or describe

these "barely perceptible" protections. The implication of the

opinion is that clemency claimants may suddenly have unspecified,

constitutionally guaranteed due process interests in the timing,

notice, opportunity to be heard, discovery of information, and

reasons for a clemency decision. Petn. at A-16.

Both of the premises of Woodard are wrong. Historically

and constitutionally, clemency is not an integral part of the

adjudication process and clemency claimants are not entitled to

any due process procedural protections. Just as significantly, there

is no “second strand" of due process protection within the

Constitution. Both of these constitutional misconceptions in

Woodard should be reviewed to preclude protracted and

unnecessarily complex and costly litigation.

Woodard held that “barely perceptible" due process

protections applied to Ohio’s clemency process because the

majority believed that clemency is an integral party of that state’s

adjudicative process for determining guilt and innocence. The

Woodard majority analogized to this Court’s holding in Evitts v.

Lucey, 469 U.S. at 387 that defendants who appeal their criminal

convictions were entitled to effective assistance of counsel since

first appeals are an integral part of the states’ adjudicative process.

However, Woodard’s characterization of clemency as an

integral part of Ohio’s criminal justice system is fundamentally

wrong. If the Woodard court had applied the appropriate due

process analysis mandated by this Court in Medina v. California, at

437 and actually applied to clemency in Herrera v. Collins, 506 U.S.

at 407-415 the majority would have concluded that clemency

decisions in the states do not constitute adjudications and that

determinations of guilt or innocence are not their primary

objective.

In Medina, this Court reaffirmed that the states have the

power to regulate their criminal justice systems. A state’s decision

does not violate the Due Process Clause unless it "offends some

principle of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental." Medina v. California,

at 445. Conspicuous by its absence in Woodard is the historical

analysis of clemency necessary under Medina. This analysis

confirms that clemency is not a judicial or even quasi judicial

function and instead is the exclusive responsibility of a separate

and independent branch of government.

The clemency power in England traces back to the eighth

century. Herrera v. Collins, at 412. Chief Justice Marshall relied

on the historic clemency power in England when he explained in

United States v. Wilson, 7 Pet. (32 U.S.) 150, 160-161 (1833), that

“from time immemorial" the executive power of pardon has been

a private, but official act of the executive. Clemency is not

intended to be “communicated officially to the court” and is to be

distinguished from a judicial act. The pardon power exists as an

unlimited power of the executive which is to be exercised totally

independent of any judicial proceeding. Ex parte Garland, 4 Wall.

(71 U.S.) 333, 380 (1866). This Court reiterated in Dumschat that

state clemency “decisions have not traditionally been the business

of courts . . . ." Connecticut Board of Pardons v. Dumschat, 452

US. at 464.

The pardon power as defined in the United States

Constitution is designed to be an executive "prerogative" that was

not to be “fettered or embarrassed." Schick v. Reed, 419 U.S. 256,

263 (1974). “To the executive alone is intrusted the power of

pardon; and it is granted without limit." United States v. Klein, 13

Wall. (80 U.S.) 128, 147 (1871). As Judge Learned Hand

explained, "It [the President’s power to pardon] is a matter of

grace, over which courts have no review. . . . It is by no means true

that ‘due process of law’ inevitably involves an eventual resort to

courts, no matter what may be the interest at stake; not every

government action is subject to review by judges." United States ex

rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2nd Cir. 1950)

cited with approval in .N.S. v. Yang, _- ~U.S. ___, 117 S.Ct. 350,

353 (1996); see also Ex Parte United States, 242 U.S. 27, 42 (1916).

Justice Cardozo explained the clemency power in Andrews

v. Gardiner, 121 N.E. 341, 343 (N.Y.App. 1919) as follows:

Such an application [for clemency] is not a

proceeding in court, nor one before an officer having

“attributes similar" to a court’s. [Citation omitted.] It is

a petition for mere grace and mercy . . . It grows out of

the action of the courts, but it seeks to reverse their

action by an appeal to motives and arguments which are

not those of jurisprudence. There are no clearly defined

issues. There is often a most informal hearing.

Sometimes there is argument of counsel.... At such a

time anything is pertinent that may move the mind to

ee ee ee

doubt or the heart to charity. It is not necessary that

ong convinced; it is enough that compassion be

stirr

2. Until Woodard, both federal and state courts have had the

restraint repeatedly to hold that clemency decisions are not judicial

functions and that the executive has unlimited discretion. It is

exclusively executive and not reviewable by the judiciary, even under

the Due Process Clause. Solem v. Helm, 463 U.S. 277, 301 (1983);

Solesbee v. Balckom, 339 U.S. 9, 12 (1950); United States v. Patti, 291

F.2d 745, 746 (3rd Cir. 1961); Spinkellink v. Wainwright, 578 F.2d 582,

—— (Sth Cir. 1978); Wainwright v. Brownlee, 103 F.3d 708, 709 (8th

Cir. 1997); Peck v. Battey, 721 F.2d 1157, 1159 (8th Cir. 1983); Binion

v. United States Department of Justice, 695 F.2d 1189, 1190 (9th Cir.

1983); Green v. Teets, 244 F.2d 401, 403 (9th Cir. 1957); Hatch v.

State of Oklahoma, 92 F.34 1072, 1076 (10th Cir. 1996); Bundy v.

Dugger, 850 F.2d 1402, 1423-1424 (11th Cir. 1988); Eacret v. Holmes,

333 P.2d 741, 744 (Ore. 1958) and cases cited therein; Banks v.

Arzona State Board of Pardons, 629 P.24 1035, 1037-1038 (Ariz. App.

1981); Arnold v. Board of Pardons & Paroles, 805 P.2d 388, 391 (Ariz.

App. 1990); Williams v. State, 898 S.W.2d 38, 39 (Ark. 1995); Penn v.

State, 670 S.W.2d 426, 430 (Ark. 1984); People v. Warren, 224

Cal.Rptr. 746, 755 (Cal. App. 1986); Jenkins v. Knight, 293 P.2d 6 (Cal.

1956); People v. Herrera, 516 P.26 626, 629 (1973) and cases cited

therein (Colo. 1973); People ex rel. Dunbar v. District Court, 502 P.2d

420, 422 (Colo. 1972); Sullivan v. Askew, 348 $.2d 312, 319 (Fla.

1977); Bundy v. State, 497 $.2d 1209, 1211 (Fla. 1986); People v.

Bradney, 652 N.E.2d 428, 431 (Ill.App. 1995); People ex rel. Symonds

v. Gualano, 260 N.E.2d 284, 290 (Ill_App. 1970); Misenheimer v. State,

374 N.E.2d4 523, 532 (Ind. 1978); Colvin v. Bowen, 399 N.E.2d 835,

838-840 (Ind. App. 1980); Whitington v. Stevens, 73 S.2d 137, 139-140

(Miss. 1954); State v. Hunter, 477 A2d 797, 802-803 (Me. 1982);

Whitaker v. State, 451 S.W.2d 11, 15 (Mo. 1970); Otey v. State, 485

N.W.2d 153, 163-165 (Neb. 1992); State v. Robinson, 356 A2d 449,

455 (N.J. 1976), Holder v. State, 488 P.2d 600, 602 (Okla. App. 1971);

Hennessey v. Pennsylvania Board of Pardons, 655 A.2d 218, 220 & fn.2

(Pa. 1995); State ex rel. Maurer v. Sheward, 644 N.E.2d 369, 373 (Ohio

1994); Collins v. State, 550 S.W.2D 643, 650 (Tenn. 1977); RRE. v.

Glenn, 884 S.W.2d 189, 192 (Tex.App. 1994); State v. Adams, 115

S.E.2d 158, 163 (W.V. App. 1960); see also Mallory v. Suate, 435 P.2d

254, 255 (Id. 1967); Milone v. Camp, 22 F.3d 693, 705 (7th Cir. 1994)

While this Court’s recent opinion in Herrera v. Collins,

highlighted the opportunity for clemency in cases involving actual

innocence, such determinations were not the primary historic

function of clemency. Rather, the act of "pardon" was one of

"forgiveness, release, remission." Ex parte Wells, 59 US. 307, 309

(1855). The pardoning power was intended to be an exception to

the criminal code for cases of “unfortunate guilt" requiring

"mitigation of the rigor of the law." Schick v. Reed, at 263 fn. 6

quoting The Federalist No. 74, pp. 500-501 (J. Cooke ed. 1961).

Clemency is a decision based largely on the public interest and is

not a mechanism for reviewing the defendant’s guilt or innocence.

See Biddle v. Percovich, 274 U.S. 480, 486 (1927). Indeed, grants

of clemency often have carried and still do carry consequences of

great disgrace, rather than exoneration. Burdick v. United States,

236 U.S. 79, 90-91 (1915) ("[T]he grace of pardon, though good in

its intention, may be only in pretense or seeming. . . .") (Holmes,

J.); Murphy v. Ford, 390 F.Supp. 1372, 1375 (W.D.Mich. 1975)

(dismissing challenge to pardon of former President Nixon) (a

pardon "does not wash out the moral stain . . . it involves

forgiveness and not forgetfulness.”)

Thus, on its own terms, Woodard is wrong. If the Sixth

Circuit has truly spliced off a heretofore unseen "second strand” of

due process, that mutant strand runs out long before the post

conviction process reaches the executive clemency proceedings.

Clemency is not part of the states’ criminal justice systems for

adjudicating guilt or innocence. The Woodard majority’s principal

authority, Evitts itself, characterized the first appeal as the “final

step in the adjudication of guilt or innocence of the individual. . .

" Evitts v. Lucey, 469 U.S. at 404 [emphasis added]. This Court

has refused to extend a due process analysis to the succeeding

(no constitutional right to a clemency hearing), Bean v. Nevada, 410

F.Supp. 963 (D.Nev. 1974) aff'd Bean v. Nevada, 535 F.2d 542, 543

(Mh Cir. 1976); Rosenberg v. United States, 346 U.S. 322 (1953)

(Frankfurter, J. conc.) (“It is not for this Court even remotely to enter

into the domain of clemency reserved by the Constitution exclusively

to the President.")

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stages of judicial post conviction review which normally occur well

before the exercise of the executive clemency power. Coleman v.

om 501 U.S. 722, 752 (1991); Ross v. Moffitt, 417 U.S. 600

. For example, this Court has characterized parole as an

integral part of the penological system and specifically found it not

to be a part of the criminal prosecution process. Morrissey v.

Brewer, 408 US. 471, 480 (1972). This Court’s subsequent

analogizing of parole to clemency in Dumschat indicates that the

clemency process is not part of the criminal prosecution system

that contained the appellate system at issue in Evitts. Connecticut

Board of Pardons v. Dumschat, 452 U.S. at 464. This Court also

went on in Dumschat to explain that clemency is also to be

distinguished from parole decisions since clemency decisions are

historically standardless.

! As the Woodard dissent further points out, the Dumschat

dissent raised the same arguments that were adopted by the

Woodard majority. Petn. at A-35. Therefore, this Court already

implicitly Tejected those arguments in Dumschat. Clemons v.

Mississippi, 494 U.S. 738, 747-748 fn. 3 (1990). Although Justice

Brennan authored Evitts, he actually concurred in the majority

opinion in Dumschat because the clemency decision was based on

the historically unfettered discretion of the executive.

This Court has also recognized the inevitable problems

and conflicts that occur when federal courts engage in reviewing

“essentially discretionary elements of state governance. ..." Cf,

Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987). "Decisions of

the Executive Branch, however serious their impact, do not

automatically invoke due process protections. . . .". Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Intervention in this

area raises "sensitive" and "troubling" issues relating to federal-state

relations. Herrera v. Collins, 506 U.S. at 421 (C’Connor, J. conc. ).

Woodard’s cryptic recognition of some sort of "barely perceptible"

due process requirements for dispensing clemency smacks of the

same kind of case-by-case approach to penal regulations this Court

recently rejected in Sandin v. Conner, supra, at 2299-2300 and

against which this Court has also drawn the line in post-conviction

10

procedures. Coleman v. Thompson, at 752; Ross v. Moffit, at 611-

612. In light of Woodard, however, the pressure of new litigation

to discover, explore, and enlarge these allegedly minimal,

microscopic rights will be irresistible. Petn. at A-37. ("But once

oe ee ae nar

the camel’s nose is under the tent . . . it may prove difficult to —

keep the rest of the animal out.")

Recognition of a heretofore unknown cause of action

under section 1983 to judicially review an exercise of clemency will

open the doors of the executive branch to the specter of intrusive

federal civil discovery into what has always been considered

confidential information. Binion v. United States Department of

Justice, 695 F.2d at 1191. If such a possibility becomes reality in

this case, it will be a further unwarranted byproduct of this

invasion into what historically has been a purely executive function.

Based on history and precedent, the States have chosen

a variety of ways to administer the executive clemency power. —

Herrera v. Collins, at 414. Surely, it cannot be said that the

unfettered discretion of executive clemency violates the traditions ©

and conscience of our People. Medina v. California, at 445.

"Our system of federalism encourages . . .

state

experimentation.” Greenholiz v. Nebraska Penal Inmates, at 13. —

The imposition of burdensome or unwarranted procedures, —

coupled with federal court review, may lead to a curtailing of the ©

clemency power altogether. Jbid. The development of increased ©

proceduralism in both capital and non-capital cases actually | Evitts v. Lucey, 469 U.S. at 401

increases the need for an equally unfettered clemency process.

This Court endorsed the history of clemency under the Due ~

Process Clause in Herrera. In doing so, this Court implicitly noted —

that the executive may consider evidence and arguments outside

the purview of the judicial process. Herrera v. Collins, 506 U.S. at

417-419. As the plurality noted in Gregg v. Georgia, any

prohibitions on discretion in the clemency process in capital cases

would be totally alien to our notions of criminal justice and would

be unconstitutional. Gregg v. Georgia, 428 U.S. 153, 199-200, fn. 50

(1976).

Amici submit that the "clemency process is-and should be-

distinct from the judicial process. Mercy cannot be quantified or

ee ee a ee ow

1]

instituti It is properly left to the conscience of the

executive to consider pleas and should not be bound by

court meant to do justice ... a frank, engaged

painstaking process of authentic decision-making seems infinitely

preferable to the dubious protections of proceduralism." Brown,

The Quality of Mercy, 40 U.C.L.A. Law. Rev. 327, 328 (1992).

ane

Inappropriate

Just as significantly, the "second strand" due process

analysis Woodard applies to clemency is mere gossamer. The

Woodard majority ignores the Medina analysis because it

misapprehends Evitts. Petn. at A-12. In Evitts, this Court held that

indigent criminal defendants who appeal their convictions are

entitled to the effective assistance of counsel for their first appeal

when the state has permitted such an appeal as a matter of right.

Evitts categorized the first appeal as an integral part of the state’s

adjudicative process for determining guilt and innocence. This

Court acknowledged that the states were not required to provide

an appeal in all criminal cases, but explained that when the state

chooses to act in an area where its action has “significant

discretionary elements,” it must act in accord with due process.

However, Evitts did not purport to create or to recognize

any new "second strand” due process analysis. Ironically, Evitts

itself is no more than an application of rule previously articulated

by this Court in Dumschat: "A state-created right can, in some

circumstances, beget yet other rights to procedures essential to the

realization of the parent right." Connecticut Board of Pardons v.

Dumschat, 452 U.S. at 463. Consistent with Dumschat, Evitts

focussed on the “nature” of the right rather than its relative

“weight.”

The state-created right in Evitts was a first appeal as a

matter of right for criminal defendants. Evitts held that this state-

created right “beget” a right to effective assistance of counsel on

|

12

appeal. This augmenting right was necessary because the State

had acted to establish an appellate review process involving

complex, intricate rules and procedures leading to a final judicial

determination of guilt or innocence. Evitts, 469 U.S. at 394-395 fn.

6, 396, 402. This Court equated the denial of the effective

assistance of counsel with the actual withdrawal of the right to

appeal. Jd., at 400.

Evitts analogized its holding to Morrissey v. Brewer, supra.

Evitts v. Lucey, 469 U.S. at 401. As previously noted, Morrissey is

the lead case in a line of decisions including Dumschat and, most

recently, Sandin v. Connor. Morrissey held that the state’s creation

of a parole system "beget" certain due process protections for

parole revocation. Similar to the appellate right at issue in Evitts,

parole revocation dealt with mixed issues of fact and law.

Significantly, however, Morrissey also held that parole revocation is

not part of the system for adjudicating guilt or innocence.

Morrissey v. Brewer, 408 U.S. at 480. Moreover, in Morrissey, the

Court distinguished between parole and the "ad hoc exercise of

clemency. ..." Jd. at 477.

Monrssey led to this Court’s decision in Greenholiz v.

Nebraska Penal Inmates, supra. In Greenholtz, this Court

recognized that the States had no duty to offer parole and that the

mere availability of parole did not "beget" any due process

protections. However, the mandatory nature of Nebraska’s unique

state parole release statute which limited the state’s discretion in

denying parole did entitle inmates to "some measure of

constitutional protection." 442 U.S. at 12.

In Dumschat, this Court specifically rejected the argument

that a state’s practice in the wholly and expressly discretionary area

of clemency created a constitutional entitlement. Connecticut

Board of Pardons v. Dumschat, 452 U.S. at 465. Moreover, absent

any state law defining the obligations of the clemency authority,

"the mere existence of a power to commute . . . create(s] no right

or ‘entitlement’." Jd. at 467. "[T]he decisionmaker can deny the

requested relief for any constitutionally permissible reason or for

no reason at all." Jbid. (Brennan, J. conc.). Furthermore, as long

as the ultimate decision was at the discretion of the decisionmaker,

|

)

|

|

13

state-created procedures for arriving at that decision do not create

a liberty interest. Compare Olim v. Wakinekona, 461 U.S. 238, 248-

- 251 (1983).

Thus, contrary to Woodard, Evitts is actually part of the

same circle of cases that includes Dumschat, Morrissey, and

_ Greenholez. Evitts does no more than apply a rule that was earlier

_ articulated in Dumschat.” Except for Dumschat, all of these cases

"beget" degrees of due process protection to the possible

_ termination or withdrawal or denial of state-created rights pursuant

to various rules or standards. Dumschat did not apply due process

protections to the executive clemency power because if clemency

_ is to be effective it cannot be based on any particular rules,

RE eos

standards, procedures, grounds, criteria, or reasons. As Dumschat

recognized, any other result would have been paradoxical.

Connecticut Board of Pardons v. Dumschat, 452 U.S. at 466.

Woodard ignores this paradox.

In Evitts, it was the right to a judicial appeal as part of

State’s adjudicative process for determining guilt or innocence

which was found to have due process implications. However, Evitts

_ did not purport to establish a separate due process analysis based

_ on the "integral" role of the procedure in the state’s process. If this

~ —-—-

Court had based its holding on that premise, then Evitts would

have been inconsistent with this Court’s jurisprudence which holds

that due process protections are determined by the "nature" of the

right at issue, not its "weight." Greenholtz v. Nebraska Penal

Inmates, 442 US. at 7. It was for this reason that this Court held

in Dumschat that clemency does not "beget" due process

protections because there is no right at issue — only an

expectation or unilateral hope. Woodard makes the mistake of

focussing on what it perceives to be the "weight" of the "right" at

issue, rather than its "nature." Woodard ignored the real common

meaning of both Dumschat and Evitts.

3. Evitts’s description of the "integral role" of appeals also does

no more than repeat language first used by this Court in Griffin v.

Illinois, 351 U.S. 12, 18 (1955).

14

The Woodard opinion’s recognition and use of a

heretofore unknown "second strand" of due process is rife for

mischief. Until Woodard, the integral role of a particular

procedure in a state’s criminal adjudication system was not

determinative of due process protections. This Court’s other

decisions which held that traditional procedural due process

protections did not apply to discretionary appeals and state

collateral review were consistent with that approach. See, e.g.

Coleman v. Thompson, supra; Ross v. Moffitt, supra. Woodard’s

discovery of a "barely perceptible" microscopic "second strand" due

process right ignores the line and logic of these other cases. Just

as ominously, in the same way that Woodard has now reopened the

clemency issue decided in Dumschat, it reopens the issues in those

other cases as well.

Amici submit that Woodard’s splicing of a "second strand"

of due process amounts to nothing more than result-oriented

hairsplitting. It is inconsistent with this Court’s due process cases

as exemplified by Dumschat, Medina and Evitts. This Court should

grant the petition for writ of certiorari to stabilize the due process

jurisprudence potentially disrupted by Woodard.

The decision to grant or deny clemency and the means

used by the executive branch to make this decision are not

compatible with judicial review. In fact, judicial review of this

ancient executive prerogative would itself involve an

unconstitutional violation of the separation of powers doctrine.

— = Se a al ll

15

CONCLUSION

For the reasons stated, as well as those set forth in the

petition for writ of certiorari, amici curiae request that the petition

be granted.

Dated: June 4, 1997.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

WARD A. CAMPBELL

Deputy Attorney General

WILLIAM G. PRAHL

Deputy Attorney General

Counsel of Record

Counsel for Amici Curiae

WAC:msd