Respondents Brief — Ohio Adult Parole Authority v. Woodard

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Supreme Couft, W.S.

- Fit ED

No. 96-1769 ~~ OCT 10 1997

CLERK

In The

Supreme Court of the United States

October Term, 1997

OHIO ADULT PAROLE AUTHORITY, et al.,

Petitioners,

EUGENE WOODARD,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR RESPONDENT

Davip H. Bopiker

Ohio Public Defender

Counsel of Record

Grecory W. Meyers

Senior Assistant Public Defender

Office of the Ohio Public Defender

8 East Long Street, 11th Floor

Columbus, Ohio 43215-2998

(614) 466-5394

S. ADELE SHANK

P.O. Box 8053

Columbus, Ohio 43201

(614) 326-1217

MicuHaet J. Benza

1698 Oakmount Road

South Euclid, Ohio 44121-4045

(216) 297-0929

Counsel for Respondent

QUESTIONS PRESENTED

Whether due process protections apply at all to

Ohio’s unique, mandatory capital clemency pro-

cedure that governs the parole board’s investi-

gation and recommendation process, which

must be completed before the Governor may

grant or deny clemency.

Could any set of facts consistent with Wood-

ard’s complaint establish that Ohio’s Death Pen-

alty Clemency Procedure imposes an

unconstitutional condition on his Fifth and

Fourteenth Amendment right against self-

incrimination.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........seccccccvccces i

TAREE CF CUEING a nbc 6000 usisvecccgasdévotamet ii

TABLE OF AUTERIRIEED - occccnccectcnceessnnnane v

STATEMENT OF THE CASG........cssceovescesnce 1

DB. FRG vcccpancses ivenvasadscanatess saaheapeeel 1

2. Obabp Chemaaeety EG «osc ccscenscbssuedes annul 1

SUMMARY OF ARGUMENT...................005: 6

ATI APRINS 0 cb i pccscogvitcesekeiobhe tewkeeee 8

I. AT LEAST MINIMAL DUE PROCESS PROTEC-

TIONS APPLY TO OHIO’S UNIQUE DEATH

PENALTY CLEMENCY PROCEDURES.........

A. This Case Presents a Narrow Question Aris-

ing From an Unusual Factual Situation. The

Court Should Decline the State’s Invitation

to Make an Unnecessarily Broad Ruling ...

B. Life and Liberty Interests Arising Under the

Federal Constitution are Implicated by Ohio’s

Death Penalty Clemency Procedure ..........

1. Mr. Woodard has a Life Interest Protected

by the Fourteenth Amendment .........

2. Mr. Woodard Has a Protectable Interest

In Seeking Clemency that Arises from

Clemency’s Integral Role in Ohio’s Crim-

oe ee ee

a. Mr. Woodard’s Original Pre-trial Life

and Liberty Interests are Protected at

all Stages of the Criminal Justice Pro-

cess Including Clemency............

iii

TABLE OF CONTENTS - Continued

Page

b. The Availability of Clemency Review

Unavoidably Impacts the Operation

of the Earlier Stages of the Criminal

Justice System and Thus is an Inextri-

cable Part of that System........... 22

c. Clemency Review Enhances the

Reliability of Convictions and Sen-

SN orascccctcceccccccocecccecers 23

d. Due Process Protection is Not Lim-

ited to Judicial Proceedings and

Applies to Aspects of the Clemency

PI ss Pe bewceudcccccccencevcccess 24

e. The Court Need Not Reach the Issue of

Whether Counsel is Required in Clem-

ency Proceedings in Order to Deter-

mine Whether Due Process Applies in

any Manner to Ohio’s Death Penalty

C. Mr. Woodard Has Protectable Due Process

Interests Arising from Ohio Law........... 27

1. Mr. Woodard Has a State Created Liberty

Interest in the Right to Seek Clemency... 27

2. Discretion in the Executive Clemency

Decision-Making Process Does Not

Remove the Clemency Application Pro-

cess from Due Process Protections ..... 29

3. Mr. Woodard Has a State Life Interest in

Ohio’s Clemency Procedures ........... 31

TABLE OF CONTENTS - Continued

Page

D. This Case Should be Remanded to Deter-

mine Whether Ohio’s Death Penalty Clem-

ency Procedure Requires Due Process

Diptthi tna sdgkathos ennaweedecdan¥ <<

Il. OHIO’S DEATH PENALTY CLEMENCY PRO-

CEDURE IMPOSES AN UNCONSTITUTIONAL

CONDITION ON MR. WOODARD’S FIFTH

RESET GI no 6 bv bah de kc occcevaees

A. The Facts of This Matter are not Fully Devel-

oped, and the Sixth Circuit’s Remand Order

SD PIED hone dc dst ddeedensecesicves:

B. Ohio’s Death fenalty C Procedure

Imposes An Unconstitutional Condition on

the Exercise of Mr. Woodard’s Fifth Amend-

ment Right to Remain Silent...............

1. The Doctrine of Unconstitutional Condi-

tions is Applicable Here ...............

2. The Fifth Amendment is Implicated in

Ohio’s Death Penalty Clemency Pro-

GS 084 vd becen bu ddnbicweekesecks duce

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

Baxter v. Palmagiano, 425 U.S. 308 (1976)..... 36, 42, 45, 46

Biddle v. Perovich, 274 U.S. 480 (1927) ............... 20

Beck v. Alabama, 477 U.S. 625 (1980)............6555- 15

Coleman v. Ohio Adult Parole Authority, 1996 WL

566010 (Ohio App. 10th Dist.) ..............6 0000s 2

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

Se Sa cadones cocncedes sues beeeees 12, 16, 29, 30

Counselman v. Hitchcock, 142 U.S. 547 (1892)...... 40, 44

Dolan v. City of Tigard, 512 U.S. 374 (1994).......... 38

Douglas v. California, 372 U.S. 353 (1963) .......-..-- 35

Estelle v. Smith, 451 U.S. 454 (1982) ...............-. 42

Evitts v. Lucey, 469 U.S. 387 (1985) ...........5.5: 19, 29

Fare v. Michael C., 442 U.S. 707 (1979).............4.. 41

Ford v. Wainwright, 477 U.S. 399 (1986)... 12, 15, 16, 25

Gardner v. Florida, 430 U.S. 349 (1977)...........44.. 15

Goss v. Lopez, 419 U.S. 565 (1975) ..... 0.6.00 00s 10, 29

Greenholtz v. Nebraska, 442 U.S. 1 (1979)...... 12, 30, 33

Herrera v. Collins, 506 U.S. 390 (1993) ........ 15, 22, 35

Hicks v. Oklahoma, 447 U.S. 343 (1980)............... 29

In re Kline, 70 Ohio St. 25, 70 N.E. 511 (1906)

Sob epadsecepnsdbe Rcd se esc cb eves eccenece 20, 23, 28, 42

Knapp v. Thomas, 39 Ohio St. 377 (1883)...... 14, 19, 21

Lefkowitz v. Turley, 414 U.S. 70 (1973)......... 39, 40, 42

TABLE OF AUTHORITIES - Continued

Page

Leis v. Flynt, 439 U.S. 438 (1979) ...............0005. 31

Lockett v. Ohio, 438 U.S. 586 (1978)............... 15, 32

Logan v. Zimmerman Brush Company, 455 U.S. 422

GEE os kbccutndebisedee bert swechd dbmeondieqcen ds 11

Malloy v. Hogan, 378 U.S. 1 (1964)...............045. 37

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137

Ge edsbanodndtedeidn as cenapedenedecndsaes cvees 10

Mathews v. Eldridge, 424 U.S. 319 (1976)............. 26

Mathis v. United States, 391 U.S. 1 (1968) ............ 41

McCarthy v. Arndstein, 266 U.S. 34 (1924)............ 40

McGautha v. California, 402 U.S. 183 (1971) .......... 39

Minnesota v. Murphy, 465 U.S. 420 (1984)............ 41

Morrissey v. Brewer, 408 U.S. 471 (1972) .......... 26, 29

Murray v. Giarratano, 492 U.S. 1 (1989) .............. 10

Nollan v. California Coastal Commission, 483 U.S.

ee ea + + <S0ip np dakes boak dine b tbenedece connce 38

Perry v. Sinderman, 408 U.S. 593 (1972)........... 32, 38

Pennsylvania v. Finley, 481 U.S. 551 (1987)........... 26

Piccirillo v. New York, 400 U.S. 548 (1971)............ 36

Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9 (1945)..... 36

Rescue Army v. Municipal Court, 331 U.S. 549 (1947) .... 36

Rhode Island v. Innis, 446 U.S. 291 (1980) ............ 41

Robinson v. California, 370 U.S. 660 (1962)............ 15

Ross v. Moffitt, 417 U.S. 600 (1974) ............... 10, 26

vii

TABLE OF AUTHORITIES - Continued

Page

Shapiro v. Thompson, 394 U.S. 618 (1969)...........-- 38

Simmons v. United States, 390 U.S. 377 (1968) ........ 39

Spaziano v. Florida, 468 U.S. 447 (1984) ........... 14, 15

Speiser v. Randall, 357 U.S. 513 SED ebhcaceedut<ves 38

State ex rel. Maurer v. Sheward. 71 Ohio St. 3d 513,

644 N.E.2d 369 (1994) .........0-5005- 2, 3, 21, 24, 33

State v. Gallagher, 38 Ohio St. 2d 291, 313 N.E.2d

FOG (1974)... cc cccccccccccvceccccecescenvescccces 40

State v. Morris, 55 Ohio St. 2d 101, 378 N.E.2d 708

CBGTGD oc ccccccccevcvccccccsccscccescsessessecccess 21

State v. Summers, 32 Ohio App. 2d 312, 291 N.E.2d

ABD (1972). cccccccccccsevcccceveccsccsccvcccces 23

State v. Woodard, 70 Ohio St. 3d 1429, 638 N.E.2d

SOO (1GDE) ... cre ceccccccscccccccevcescesccccccces 38

United States v. Doe, 465 U.S. 605 (1984).......... 43, 44

United States v. Smith, 94 F.3d 204 (6th Cir. 1996)..... 7

United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) .... 23

Weaver v. State, 120 Ohio St. 44, 165 N-E. 573 (1929) .... 23

Williams v. Morris, 62 Ohio St. 3d 463, 584 N.E.2d

G71 (CIDDE) oo cieccccscndsctacccccccccceccsccccccvcns 5

Wyman v. James, 400 U.S. 309 (1971)...-....--- +++ ees 40

Woodard v. Ohio Adult Parole Authority, 107 F.3d

1178 (GtH Cir.1997). ... 0... cccccccccccccccccees passim

Woodson v. North Carolina, 428 U.S. 280 (1976)....... 15

Viii

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL AND STATUTORY AUTHORITIES

See CN, es idas vanetcsseadavsicces passim

Ses GOO, UI, WE wk cncccccnccuwecvebescde 14, 15

ee Se I bc de cdsuccacsiacnvicesws passim

Se a eg ei. cede ace ceane 2, 3, 39

See ee: Cs ly TE UE hc bev ccd Shur bavi cat dbeucoua: 2

COGS Be, Gime Fi BO BAG ios 5 dios cccdccdsccccctac 2

Cle eu. Come Ags. © UGG on. cccccccccccccctcscs 2

Ohio Rev. Code Ann. § 2901.01(A)(14) .............. 17

Ohio Rev. Code Ann. § 2945.391.................... 17

Ohio Rev. Code Ann. § 2967.03 ............... 5, 31, 41

Ohio Rev. Code Ann. § 2967.07......... 3, 5, 39, 41, 42

Ohio Rev. Code Ann. § 2967.12 ................00000- 5

Ohio Rev. Code Ann. § 5120.01...................... 2

Ohio Rev. Code Ann. § 5149.11..................... 41

Ohio Admin. Code § 5120:1-1-15................... 5, 6

OrHer AUTHORITIES

Cleveland Plain Dealer, Sunday, January 5, 1997,

ERROR EI icici <n ee 28

Death Penalty Clemency Procedure ............. passim

Governor William Allen, Commutation of Hugh

Daugherty, Executive Documents, Part 1, Gover-

nor’s Message, p. 23 (1874) ............. wee teeteuw 21

ix —

TABLE OF AUTHORITIES - Continued

Page

Governor William Allen, one commutation

granted, Executive Documents, Part 1, Gover-

nor’s Message, p. 17 (1875) .... 6.66 cece cence eens

Governor Charles Anderson, Reprieve of Henry

Ducolon, Executive Documents, Part 1, Report

of Pardons and Reprieves, p. 264 (1865) ..........

Governor Richard M. Bishop, Commutation of

Ralph Wintersgill, Executive Documents, Part 2,

Pardon Report, p. 592 (1878). .......60e cece ee eees

Governor John Bricker, Commutation of Hance

Hamilton, Vol. 121, Ohio Senate Journal Index,

PR BRED GOED cdddincccde ce desectpessoccvocenccess

Governor John Brough, Governor's Message, Execu-

tive Documents, Part 1, p. 58 (1864)..............

Governor Richard F. Celeste, Commutations of

Rosalie Grant, Debra Brown, Elizabeth Green

and Beatrice Lampkin, Vol. 144, Ohio Senate

Journal Index, p. 21 (1991)..... 66... cece eee e eens

Governor J.D. Cox, 1866, one commutation

granted, Executive Documents, Part 1, Pardon

Report, p. 314 (1866) ... 2.6.6.6. cece cece eee ee eeees

Governor J.D. Cox, one reprieve granted, Execu-

tive Documents, Part 1, Pardon Report, p. 177

CDBG hiv cc oceb eine stevetcttsccdccscccvcecccccces

Governor Cox, Commutation of Thomas Mimms,

Executive Documents, Part 2, Governor’s

Report, p. 586 (1872) .... 0... c cece cece een eeeeees

Governor Michael V. DiSalle, Commutation of

Lewis Bishop Niday, Vol. 129, Ohio Senate Jour-

nal Index, p. 1747 (1959) 0.02... cece eee newness

TABLE OF AUTHORITIES - Continued

Page

Governor R.B. Hayes, Commutation of Samuel

Huling, Executive Documents, Part 1, Pardon

pay Bs TF COON ois s ooas 2k OR, 21

Governor R.B. Hayes, Commutation of Sarah M.

Victor, Executive Documents, Part 1, Pardon

PO, SP en as ivanc sao

Governor Rutherford B. Hayes, one commutation

and three reprieves granted, Executive Docu-

ments, Part 1, Pardon Report, p. 340 Sa

er ear neB tcp Herbert, Commutation of

aries Ames, Ohio Senate Journal Ind

Th 6 ee sig ass

Governor William Medill, Commutation of John

Howley, Executive Documents, Part I, Public

Document No. 6, ey Gi edtid << icinnds A

Governor F. Noyes, Governor’s Messa j

, e, Executi

Documents, Part 2, p. 223 (1873). re si “ts

Governor William O’Neill, Commutation of. Cleo

Eugene Peters, Vol. 128, Ohio Senate Journal

Index, p. 1472, #18 (1958) ...................

Governor David Tod, Commutation of Washing-

ton King, Executive Documents, Part 1, Pardon

SPUN eG oe rei ce adiuid. es

Governor Thomas L Youn i

: g, Commutat

Thomas Mulhall, Executive Documents, Part =

Pardon Report, p. 568 (1878)................. ;

TABLE OF AUTHORITIES —- Continued

Page

Michael D. Hintze, Attacking the Death Penalty:

Toward a Renewed Strategy Twenty Years After

Furman, 24 Covum. Hum. Rts. L. Rev. 395 (1993) .... 43

Kathleen M. Sullivan, Unconstitutional Conditions,

102 Harv. L. Rev. 1413 (1969) .........cccccecveces

Micuast V. DiSatite, THE Power or Lire or DeatH

CD ck Gas + Re AS ease Kye cucscenenseeesosccescess

Memorandum from Harold J. Cardwell, Warden

of the Ohio Penitentiary, on Electrocution Statis-

tics to John M. McElroy, Executive Assistant,

State House, Columbus, Ohio (July 7, 1970).......

1 Report or THE DEBATES AND PROCEEDINGS OF THE

CONVENTION FOR THE REVISION OF THE CONSTITUTION

or THE State OF Onto 1850-1851 (1851).............

Pardon Records of Governor Rueben Woods

Nee ne ee aasenses

U.S. Const. Convention (1787), The Records of the

Federal Convention of 1787, Vol. Il, 626 (Max Far-

rand, Ed., Yale Univ. Press) (1911)................

Wesster’s Decuxe UNasripcep Dictionary (2d ed.

STATEMENT OF THE CASE

1. Facts

Counsel for twenty-three year old death row inmate

Eugene Woodard was informed on September 6, 1994 that —

three days later, Mr. Woodard could make a plea for his

life in a clemency interview. Mr. Woodard had not

applied for clemency. At the interview, Mr. Woodard

would not be permitted to have counsel with him. The

interview might, at Petitioners’ discretion, be Mr. Wood-

ard’s only chance to ask for clemency for two years. His

statement could be used against him if he won a re-trial

or new sentencing. Counsel was also informed that a

clemency hearing for Mr. Woodard would be held on

September 16, 1997 but that neither he nor Mr. Woodard

could be present. [J.A. p. 4]

The following day Mr. Woodard’s counsel sent a let-

ter to the Ohio Adult Parole Authority (APA), informing

it that Mr. Woodard had been granted a stay of execution

in order to pursue state post-conviction remedies, object-

ing to the proceedings on a number of grounds, and

asking that both the interview and hearing be continued.

[J.A. pp. 4-5] Counsel received no response. As a result

this action was filed. [J.A. p. 5]

2. Ohio Clemency Law

Mr. Woodard’s execution date was set at the conclu-

sion of his state appellate proceedings. Two days later, on

July 21, 1994, Ohio’s new Death Penalty Clemency Pro-

cedure went into effect. [J.A. pp. 8-14] The Death Penalty

Clemency Procedure was adopted by the Ohio Depart

ment of Rehabilitation and Correction, pursuant to if 4

islative delegation of authority under Ohio Rev Cod,

Ann. § 5120.01.! The new procedure regulates the “

cesses to be followed by the Ohio Adult Parole Authority

(“APA”) when conducting clemency hearings for death

row inmates.2

In Ohio, clemency review is a

in Ohio, two stage process: th

application stage and the executive decision rabiane

ss Ohio's two part clemency process was recently

explained by the Ohio Supreme Court in State ex rel.

? ? v ? y, Oh oO . , 2 2 , *. .

The exercise of the pardoni i

two distinct cements - romps A tet aged

= eo — process. The a fin

mo Const. art. IIL § 11] ‘man i

for pardons’ festiniiee tie Bio-ve wind oe ton

cess, which encompasses the filing of the a - li-

cation itself, the investigation, the pecemnianad

tion, and the full report compiled by the APA.

' The Department of Rehabilitati

itation and C ion i

department of the executive branch. The director prorernad is :

cabinet level appointment. Ohio C

; onst. art. I - :

Code Ann. §§ 121.02(O), 121.03(Q). of. MM. § 21; Oblo Rev.

? While not a matter for this C ‘

ourt’s determination, t i

ae oe as to whether this policy was legally enacted a

a ae be the policy litigated in the Ohio Courts the

rict Court of Appeals affirmed the dismj ,

declaratery judgment action on procedural pone =e i

went on to say, however, that had the question been Rides

it 6 it would have found the policy enconstituiienst ~

“PP : a (onthe ranges to Article III, section 11

’ eman v. Ohio Adult P |

1996 WL 566010 (Ohio App. 10th Dist. 1996). ——e

We find that the General Assembly's authority

to regulate the application process extends to

the time just before the Governor reaches a sub-

stantive decision concerning pardon. Once this

point is reached, the General Assembly's consti-

tutionally granted authority to regulate pro-

cedurally the pardoning power of the Governor

is at an end.

Once the written application is filed, the APA conducts

an investigation, makes a recommendation, and reports

both to the Governor. The investigation includes an inter-

view with the inmate (if the inmate requests one), a

hearing with input from the prosecuting attorney, the

trial judge, and the victim’s representative, and a review

of the inmate’s prison file. Ohio Rev. Code Ann.

§ 2967.07.3 After the report and clemency recommenda-

tion are forwarded to the Governor, the APA has no

further role in the process. The Governor of Ohio then

decides whether to grant or deny clemency.

The Death Penalty Clemency Procedure establishes a

mandatory clemency review that commences when the

Ohio Supreme Court completes direct appellate review of

a capital case. The investigation begins immediately.

3 The portions of this statute relating to commutations and

reprieves were held unconstitutional under Ohio Const. art. Ill,

§ 11. State ex rel. Maurer v. Sheward, 71 Ohio St. 3d 513, 644

N.E.2d 369. Section 11 was amended, effective January 1, 1996,

to allow legislative regulation of the manner of applying for

commutations. Ohio Rev. Code Ann. § 2967.07 has not been re-

enacted since the constitutional amendment became effective.

The references to commutations and reprieves held

unconstitutional in Maurer still appear in the text of the statute.

Once the court sets an execution date, a clemency “hear-

ing” is held unless a stay is granted 45 or more days

before the execution date. This is true regardless of the

inmate’s wishes. Once a hearing has been scheduled

under the Death Penalty Clemency Procedure it cannot be

stopped.

When the hearing is scheduled, the prisoner is noti-

fied of the hearing and his opportunity to be interviewed

by APA parole board members. He is also asked to sub-

mit to psychiatric or psychological evaluation.

At the hearing the inmate will not be present. The

parole board members who interviewed him will present

the information he provided in the interview. Attendance

at the hearing, by counsel or anyone other than parole

board members, is at the discretion of the parole board

chair. A decision on whether to recommend clemency will

be made the day of the hearing if possible and the gover-

nor informed of that decision. A written report including

the results of the investigation and the recommendation

will be provided to the governor within 5 days. At that

time the inmate, his lawyer, the attorney general, the

prosecutor, and the victim’s representative will be

informed of the recommendation. A press release will be

issued informing the media of the APA’s recommenda-

tion. If there is not enough time to follow this procedure

it will be suspended. Thereafter, if new information

becomes available, it is within the APA’s discretion to

supplement its initial decision, hold a new hearing, and

inform the governor. Death Penalty Clemency Procedure

§ VI(A-G), J.A. pp. 9-14.

The Death Penalty Clemency Procedure works in

conjunction with Ohio Administrative Code § 5120:1-1-15

and Ohio Rev. Code Ann. §§ 2967.03, .07, and .12.4 Ohio

Rev. Code Ann. § 2967.03 provides that clemency can be

recommended only on a finding that “there is reasonable

ground to believe that granting [clemency] would further

the interests of justice and be consistent with the welfare

and security of society.” The statute also provides that the

APA may not recommend clemency unless it has com-

plied with statutory notice requirements and considered

any statements offered by the victim’s family or represen-

tative. Section 2967.07 of the Ohio Revised Code requires,

when a clemency application is filed, that the APA con-

duct “a thorough investigation into the propriety of

granting [clemency].” The APA shall report its findings to

the governor in writing. The report shall include a state-

ment of “the facts in the case,” the APA recommendation

“for or against” granting clemency, “the grounds there-

fore” and the “records or minutes relating to the case.”

Ohio Rev. Code Ann. § 2967.12 requires that prior to

recommending a pardon or commutation the prosecuting

attorney, trial judge, and victim's family be notified. If a

representative for the victim provides a written statement

* Ohio Admin. Code § 5120:1-1-15(G) says that the APA

clemency recommendation is “within its sole discretion and

shall not be subject to administrative review.” The Ohio

Supreme Court has held that administrative rules cannot

supersede statutory requirements. Williams v. Morris, 62 Ohio St.

3d 463, 468, 584 N.E.2d 671, 675 (1992). The APA discretion

insulated from administrative review by Ohio Admin. Code

§ 5120:1-1-15 must therefore be exercised under the standards of

Ohio Rev. Code Ann. §§ 2967.03, .07, and .12.

to the APA before the clemency recommendation has

been made, the victim’s statement must be considered.

Ohio Administrative Code § 5120:1-1-15(H) states

that if clemency has been denied within two years prior

to the APA receiving an application, “the parole authority

may forward the application to the governor with the

recommendation that it be denied on the basis of the

earlier review and denial. In such case, no hearing and no

further investigation shall be necessary unless specifically

requested by the governor.”

SUMMARY OF ARGUMENT

The due process issue before this Court is a narrow

one: whether any due process protections apply to Ohio’s

unique, legislatively created death penalty clemency

application procedures. Executive branch clemency deci-

sion making authority and discretion are not at issue.

Life and liberty interests recognized by both federal

and state law require that due process protections should

be applicable to Ohio’s clemency application procedure

in some manner. Mr. Woodard has an independent feder-

ally protected life interest that remains intact and

requires due process protection until execution takes

place. While the sentence of death may have diminished

Mr. Woodard’s right not to be executed By the state for

the crime he was convicted of committing, it did not

eliminate it. Mr. Woodard, like every capital litigant, has

sufficient life interest to invoke the jurisdiction of the

courts. He is not legally dead.

The Sixth Circuit found that due process safeguards

might be required in Ohio’s clemency application process

due to the “role of clemency in the entire punitive

scheme.” Woodard v. Ohio Adult Parole Authority, 107 F.3d

1178, 1186 (6th Cir. 1997). Because of the interaction

between the possibility of clemency being granted and all

of the judicial proceedings that go before it, clemency is

an “ ‘integral’ and inextricable part of the proceedings for

determining whether a defendant should be deprived of

his life, liberty, or property.” Id., quoting United States v.

Smith, 94 F.3d 204, 207 (6th Cir. 1996). Clemency is part of

the system that protects Mr. Woodard’s original, pre-trial

life and liberty interests in not being executed by the

state.

Mr. Woodard also has life and liberty interests in the

state-created right to seek clemency review. Ohio has

recognized the opportunity to seek clemency as a right.

This state-created right is entitled to due process protec-

tion.

The life and liberty interests at issue in Ohio's capital

clemency process require some modicum of due process

protection. Ohio has chosen to follow a two stage process

for resolving clemency decisions in capital cases. The

clemency investigation and recommendation that is cen-

tral to that process implicates the core interests identified

in this Court’s due process jurisprudence and are no part

of the discretionary executive clemency decision. This

Court’s due process jurisprudence requires that the Sixth

Circuit’s decision be affirmed.

Finally, because it would violate Mr. Woodard’s Fifth

Amendment rights to subject him to an uncounseled

interview as a condition of participating in the clemency

process, this Court should order the court below, on

remand, to consider the effect of Ohio’s Death Penalty

Clemency Procedure on Mr. Woodard’s Fifth Amendment

rights.

ARGUMENT

I. AT LEAST MINIMAL DUE PROCESS PROTEC-

TIONS APPLY TO OHIO’S UNIQUE DEATH PEN-

ALTY CLEMENCY PROCEDURE

A. This Case Presents a Narrow Question Arising

From an Unusual Factual Situation. The Court

Should Decline the State’s Invitation to Make

an Unnecessarily Broad Ruling

The question before this Court is whether Ohio's

legislatively created clemency procedures must meet at

least minimal due process standards. This case does not

arise, as Petitioners claim, “from a challenge to the Ohio

Governor’s clemency power.” [Pet. Br. p. 2] Executive

branch decision making authority and discretion are not

at issue in this matter. Nor does this case raise the ques-

tion of whether due process is applicable to every state's

clemency process but rather focuses on Ohio’s unique

clemency procedure. Neither does it ask this Court to

determine what process is due.

Recognizing that due process protections may apply

im some manner to some clemency proceedings will not

create the deluge of litigation predicted by Petitioners.

This is so because many states already provide procedural

protections in their clemency processes® and because the

question presented here revolves on Ohio’s unique clem-

ency structure. Petitioners raise the specter that a recog-

nition that due process protections may apply to Ohio's

clemency application process in some manner will result

in an “eyestraining grant of judicial authority to review

all manner of State practices.” [Pet. Br. p. 21] There may,

of course, be a trickle of cases in other states testing the

parameters of such a recognition but it will not be the

flood Petitioners predict. No other states have mandatory

clemency application practices that overtly deny death

sentenced inmates the rudimentary protections that

Eugene Woodard has alleged he is denied.°

. The majority of the thirty-eight states with the death penalty

have some regularized clemency processes which must be followed

when clemency is sought. Six states have given the decision making

power exclusively to a board. [Table 1, App. p. A-10] Eighteen states

use a combination of a board and executive decision maker [Table 2,

App. p. A-10] In nine of those eighteen states, the governor must

have a recommendation in order to grant clemency [Table 3, App. p.

A-12]; the other nine states require the governor to receive a non-

binding recommendation from the board. [Table 4, App. p. A-12]

Fourteen states give the governor the sole responsibility for

considering clemency applications, although the governor may

direct a board to investigate the application. [Table 5, App. p. A-13]

In three states the governor sits on the clemency board. [Table 6,

App. p. A-14]

é The large majority of death penalty states provide procedural

protections — such as notice and an opportunity to be heard — that

have been long recognized to be the hallmarks of due process.

Thirty-five of the thirty-eight states allow a hearing of some sort to

review the inmate's evidence. [Table 7, App. p. A-15] Sixteen death

penalty states provide for public hearings to review clemency

requests. [Table 8, App. p. A-17] Witnesses for both sides may

present written or oral statements in thirty-four of the thirty-eight

death penalty states. [Table 9, App. p. A-18] In thirty-two states, if

Petitioners’ concern that there will be a rush to set

due process limits in discretionary appeals and other

post-conviction proceedings is misplaced. The law is well

settled with regard to such proceedings. Ross v. Moffitt,

417 U.S. 600 (1974) (discretionary appeals); Murray v.

Giarratano, 492 U.S. 1, 10 (1989) (state post-conviction

proceedings). The impetus to test further will come, as it

does now, from the circumstances of individual cases -

not from the ruling in this matter.

In any case, this Court has found the existence of due

process rights over objections based on the “slippery

slope.” See, for example, Goss v. Lopez, 419 U.S. 565, 574

(1975). The amount of litigation potentially engendered

by any ruling of this Court has never been determinative

of the extent of constitutional protections.

By contrast, holding that due process can never apply

to any aspect of clemency proceedings will result in an

arbitrary and unreliable clemency system. If no due pro-

cess protections apply, the door is open to abuses ranging

from withholding clemency recommendations in order to

wait for the next Governor who might be more inclined to

accept the APA’s recommendation,” to APA decisions to

the inmate is represented by counsel, that counsel is permitted to be

involved in the clemency process. [Table 10, App. p. A-20] Three

states specifically provide for the appointment of counsel for a

clemency review. [Table 11, App. p. A-22] In only one state, Arizona,

is there any arguably mandatory clemency review. There the Board

of Pardons has a duty to review every capital case to determine

whether a reprieve is warranted. Ariz. Ad. Code R. 5-4-603

” This scenario is not far fetched. A similar fact pattern

involving judicial appointments underlies the decision in

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803).

“slow track” or deny applications from women or minor-

ity applicarits. It would leave bureaucratic error or mis-

conduct a barrier to a clemency applicant's efforts to

reach the Governor should APA employees fail to process

the application.®

This Court should reject Petitioners’ invitation to rule

broadly on the right to due process in executive clemency

proceedings. The limited scope of the due process issue

that is before this Court is apparent from the Sixth Cir-

cuit’s opinion. The Sixth Circuit “decline(d) to address

[Mr. Woodard’s] specific due process arguments,” decid-

ing only that the District Court had erred in holding that

“the Fourteenth Amendment was completely inapplicable

to the State’s clemency proceedings” on the limited

record arising from a motion to dismiss. Woodard, 107

F.3d at 1188. Instead, because the Sixth Circuit found that

® Compare Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982). In Logan, an employee fired due to a physical handicap

filed a timely charge with the Illinois Fair Emplovment Practices

Commission, which in turn failed to schedule a timely hearing

under the state law. The state court barred the claim even

though it was the state commission that erred. This Court

reversed, finding that the state’s statute created a protected

property interest in the handicap-discrimination claim and that

dismissing the claim violated federal due process: “[A}ny other

conclusion would allow the State to destroy at will virtually any

state-created property interest.” Id., 455 U.S. at 432. The Court

reached this conclusion notwithstanding the fact the state’s

negligence gave Logan a cause of action against the state in its

Court of Claims. “Seeking redress through a tort suit is apt to be

a lengthy and speculative process, which in a situation such as

this one will never make the complainant entirely whole... . ”

Id., 455 U.S. at 436-437. There is little opportunity for redress of

an unprocessed clemency application.

it could “imagine extreme situations in which federal due

process would be offended,” id., and because the facts

before the court were insufficient to determine whether

such an extreme situation exists in this case, the court

remanded.

As this Court has noted in other circumstances, when

a state “statute has unique structure and lan-

guage . . . whether any other state statute provides a

protectable entitlement must be decided on a case-by-case

basis.” Connecticut Board of Pardons v. Dumschat, 452 U.S.

458, 466 (1981), quoting Greenholtz v. Nebraska, 442 U.S. 1,

12 (1979) (emphasis added).? No other state clemency

system precludes or limits review for two or more years

after subjecting a death row prisoner to a mandatory

clemency process.

This case focuses on a novel, mandatory clemency

process within Ohio’s unique legislative, administrative,

and constitutional structure. The clemency process at

issue applies to capital cases only, proceeds regardless of

the inmate’s wishes, and is used in no other state. Under

these circumstances, the Sixth Circuit would have had the

district court make a “case-by-case” determination as to

whether facts are present that require at least minimal

due process protection.

In order to invoke the protection of the Due Protec-

tion Clause, one must show state action that infringes

% See also Ford v. Wainwright, 477 U.S. 399, 425 (1986) (“Due

process is a flexible concept, requiring only ‘such procedural

protections as the particular situation demands.’ ”) (O’Connor,

J., concurring).

upon a constitutionally protected right to life, liberty, or

property. Respondent demonstrates in the following

pages the substantial interests at risk in a denial of clem-

ency review. First there is a federally based life interest

separate from the life interest at risk in trial. Second,

federal life and liberty interests are protected from start

to finish of the criminal justice system. Third, Ohio has

created a liberty interest in the right to seek clemency.

Fourth, there is a state-based life interest at risk when the

right to seek clemency is denied or infringed. Each of

these interests compels affirmance of the Sixth Circuit's

holding and a remand for fact finding.

B. Life and Liberty Interests Arising Under the

Federal Constitution are Imp'icated by Ohio’s

Death Penalty Clemency Procedure.

1. Mr. Woodard has a Life Interest Protected

by the Fourteenth Amendment.

Eugene Woodard has a life interest independent from

and broader in scope than the life interest diminished by

his death sentence. That independent life interest is pro-

tected by the Fourteenth Amendment to the United States

Constitution. Mr. Woodard’s independent life interest

remains intact and requires due process protection until

execution takes place. While the sentence of death may

have diminished Mr. Woodard’s right not to be executed

by the state for the crime he was convicted of committing,

it did not eliminate his life interest.

Mr. Woodard, like every capital litigant, has suffi-

cient life interest to invoke the jurisdiction of the courts.

He is not legally dead. Were he killed by an inmate or

even a state employee such as a prison guard, his own

killer would be prosecuted for the wrongful taking of a

life despite the fact that it was the state’s ward or the

state’s employee who killed him. Were his execution car-

ried out without complying with the many post-trial state

procedures designed to insure its reliability, his execu-

tioner would be guilty of homicide. See Knapp v. Thomas,

39 Ohio St. 377, 382 (1883) (Sheriff who executes on basis

of conviction when presented with a warrant of pardon

he believes to be invalid would be guilty of homicide).

Mr. Woodard’s life interest is protected by the Eighth

Amendment guarantee against cruel and unusual punish-

ment until the moment of his death. A death sentence is

not the equivalent of an execution. As long as Eugene

Woodard’s heart pumps and his lungs breathe he has a

protectable life interest.

This Court has recognized that the word “life” in the

due process clause has meaning separate and apart from

the word “liberty.” In Spaziano v. Florida, 468 U.S. 447, 468

(1984), three Justices of this Court (concurring and dis-

senting in part) found that “[bJecause a deprivation of

liberty is qualitatively different from a deprivation of

property, heightened procedural safeguards are a hall-

mark of Anglo-American criminal jurisprudence. But that

jurisprudence has also unequivocally established that a

State’s deprivation of a person's life is also qualitatively

different from any lesser intrusion on liberty.”"° This

10 Justice Stevens also wrote that “In the 12 years since

Furman v. Georgia, 408 U.S. 238 (1972), every Member of this

Court has written or joined at least one opinion endorsing the

Proposition that because of its severity and irrevocability, the

Court’s consistent view that “death is different” has

shaped both its due process and its Eighth Amendment

jurisprudence in capital cases, and has resulted in a host

of procedural protections designed to ensure heightened

reliability in the imposition of the punishment. Herrera v.

Collins, 506 U.S. 390, 399 (1993); Gardner v. Florida, 430

U.S. 349 (1977); Beck v. Alabama, 477 U.S. 625 (1980);

Lockett v. Ohio, 438 U.S. 586 (1978); Woodson v. North

Carolina, 428 U.S. 280 (1976).

Ford v. Wainwright, 477 U.S. 399 (1986) demonstrates

that the life interest continues beyond conviction and

sentencing. Ford asked whether Florida could lawfully

execute a person who became insane after trial. The

Court held that such an execution could not occur. Due

process protections were central to the result. Because the

Eighth Amendment applies to the states by way of the

due process clause of the Fourteenth Amendment, Robin-

son v. California, 370 U.S. 660, 675 (1962) (Douglas, J.,

concurring), the execution of an insane inmate would

work a deprivation of life without due process of law.

Additionally, Ford held that Florida’s procedures for

determining a prisoner’s sanity violated procedural due

process by not allowing an opportunity to be heard. Ford,

477 U.S. at 413-416 (plurality opinion); 424 (Powell, J.,

concurring); 427-429 (O’Connor, J., concurring in part,

dissenting in part). Thus, the purely executive function of

carrying out a death sentence after a lawful conviction is

death penalty is qualitatively different from any other

punishment, and hence must be accompanied by unique

safeguards to ensure that it is a justified response to a given

offense.” Spaziano, 468 U.S. at 468.

constrained by procedural due process. Ford could not

have found such constraints in the Fourteenth Amend-

ment if the inmate did not retain a life interest after

conviction and sentencing.

Petitioners’ reliance on Dumschat, 432 U.S. 458, is

entirely misplaced. All that Dumschat is about - and the

only constitutional issue it addressed - is the definition of

the “liberty” that is protected by the Fourteenth Amend-

ment. But the text of the Fourteenth Amendment Says in

plain language that a person's “life” is subject to due

process protections whether or not he also has a liberty

interest against the state action that kills him. “Life,”

unlike “liberty” (once liberty is taken to mean more than

freedom from confinement), is not a legal construct but a

biological fact. Other obvious distinctions aside," the

Dumschat case is simply inapplicable to a situation in

which life is at stake.

The Sixth Circuit noted that in order to demonstrate a

protected life interest beyond the life interest protected

by “his trial, appeal, habeas petitions, and even his clem-

ency application,” Mr. Woodard would have to demon-

strate “a separate, life-affecting change in his situation.”

Woodard, 107 F.3d at 1184. In addition to failing to protect

Mr. Woodard’s “original” life interest [discussed in

'! Dumschat is inapplicable to this matter for many other

reasons discussed throughout this brief including the fact that

this Court found that Dumshat had not been denied his right to

seek clemency. Dumschat, 452 U.S. at 467. Dumschat focused on

the conclusion of clemency review and sought an explanation

for the decision while this case focuses on the application

procedure that allows clemency review to take place.

section I(B)(2) below], denial of the right to seek clem-

ency is a life-affecting change in Mr. Woodard’s situation.

Clemency review is a step in the criminal justice

process that protects the reliability of sentences to be

sure, but it also protects the broader life interest with

which every person is born. It does so in a distinct way

that no other step of the criminal justice system process

can. Clemency review allows a decision that judges the

person/life as a whole. Only in clemency review can

rehabilitation be fully considered.12 Only in clemency

review can subsequent acts of courage or self-sacrifice be

weighed against the crime for which the applicant was

convicted." Only in clemency review, can mercy be

shown for those whose mental disabilities, although

insufficient to avert legal culpability,'4 so disadvantage

them that execution for the crimes that their impaired

judgment led them to commit is unfair.'5 Only in

'2 Governor John Brough, 1864, Executive Documents, Part

1, p. 58, Governor's Message “The pardoning power has a two-

fold object: the one to afford a remedy for any injustice that,

from the nature of the testimony, or other circumstances, may

have been committed in the conviction; the other to encourage

repentance and reformation.” And see generally, Micnaer V.

DiSatte, THe Power or Lire or Deatu (1965)

'S See Governor John Bricker, Vol. 121, Ohio Senate Journal

Index, p. 1233 (1945), Commutation of Hance Hamilton for

“special services rendered to the State at the time of an

attempted prison break.”

'# Ohio recognizes only the most stringent definition of

insanity. Ohio Rev. Code Ann. §§ 2901.01(A)(14), 2945.391.

Unlike some other states, Ohio continues to allow the execution

of the mentally retarded.

'S See DiSatte, supra note 12, at 64: “Surely society did not

need to take the life of a mentally defective individual ... who

clemency review is the qualitative and quantitative differ-

ence between death and every other penalty weighed

against the death row inmate’s entire life interest. Infring-

ing the right to seek clemency is “a separate life-affect-

ing” change in Mr. Woodard’s pre-execution

circumstances.

Mr. Woodard’s life interest was not extinguished

when the death sentence was pronounced. It continues as

long as he lives and is protected by the state throughout

that time. While a death sentence diminishes the con-

demned person’s life interest in that the state may, in

payment for his crime, lawfully take his life on the date

and time assigned and in the manner prescribed by law,

the condemned person has a life interest in every inter-

vening process that leads to his execution or terminates

the state’s right to carry it out.

2. Mr. Woodard Has a Protectable Interest In

Seeking Clemency that Arises from Clem-

ency’s Integral Role in Ohio’s Criminal Jus-

tice System.

a. Mr. Woodard’s Original Pre-trial Life

and Liberty Interests are Protected at all

Stages of the Criminal Justice Process

Including Clemency

The Sixth Circuit correctly found that clemency

review is an integral part of Ohio’s criminal justice sys-

tem and that, as such, Mr. Woodard’s original pre-trial

should not have been allowed outside an institution.” Reported

at Governor Michael V. DiSalle, Communtation of Lewis B

Niday, Vol. 129, Ohio Senate Journal Index, p. 1747 (1959).

life and liberty interests are protected by it. Those origi-

nal rights trigger due process protections at the begin-

ning of the criminal justice system and continue to

require due process protection until all processes within

the system that are designed to insure reliability of con-

victions and sentences are complete. Ohio’s criminal jus-

tice system ends with clemency review. Analogizing to

this Court's ruling in Evitts v. Lucey, 469 U.S. 387 (1985),

the Sixth Circuit found that some level of Due Process

protection is required throughout the various stages of

the criminal justice system but determined that “the

degree to which each component forms an ‘integral part’

of the overall adjudicative'® system determines tle

degree to which due process plays a role.” Woodard, 107

F.3d at 1186.

Clemency review and the right to seek it are an

integral part of Ohio’s overall criminal justice system.

The clemency power given to the Ohio Governor is one

aspect of this system. The Ohio Supreme Court recog-

nized in Knapp v. Thomas, 39 Ohio St. 377, 391-392, while

discussing the need for the courts to refrain from interfer-

ing once the governor has issued a pardon, that the

clemency power is an aspect of the separation of powers

under the Ohio Constitution.’”7 Executive clemency

‘© The word “adjudicative” is here used in the broad and

primary sense. To “adjudge” means “to decide or determine by

law.” Weester’s Detuxe UNasriocep Dictionary (2d ed. 1979). It

should not be read as a reference to a determination by the

judiciary. The Sixth Circuit made clear that it referred to

“proceedings made available by the government.” Woodard, 107

F.3d at 1186.

7 The U.S. President’s clemency authority serves the same

function. The Framers considered this during the 1787

The fact that the opportunity to ask for executive

clemency is a right conferred by the constitutional struc-

ture of the government is so commonly understood in

Ohio that it has always been accepted by the people,

governors, and courts of the state. The consistent and

unquestioning acceptance of the right to seek clemency is

evidence of its indispensable and inextricable role in

Ohio's criminal justice system. The Ohio Supreme Court

recognized many years ago that seeking executive clem-

ency is a right and perhaps the only remedy available to

Ohio prisoners in some circumstances. The Ohio Supreme

Court said in In re Kline, 70 Ohio St. 25, 29, 70 N.E. 511,

512 (1906), that a prisoner convicted under a law subse-

quently repealed had no redress available in the courts of

Constitutional Convention. In determining the extent of the

President's pardoning power a motion was made to exclude

cases of treason and allow that aspect of clemency to be

controlled by the Congress. The motion was defeated after

discussion which noted that it would be inconsistent with the

separation of powers to allow the legislative branch to take over

that function. United States Constitution Convention (1787), The

Records of the Federal Convention of 1787, Vol. Il, pp. 626-627 (Max

Farrand ed., Yale University Press) ( 1911).

'* This Court has reached the same conclusion about the

role of clemency in the federal system. See Biddle v. Perovich, 274

U.S. 480, 486 (1927) (“A pardon in our days is not a private act of

grace ‘rom an individual happening to possess power. It is a

part of the Constitutional scheme. When granted, it is the

determination of the ultimate authority that the public welfare

bee — served by inflicting less than what the judgment

the state but, “The prisoner still has the right to appeal to

executive clemency for a pardon.” Ohioans sought clem-

ency and Ohio governors granted and denied it before

any legislation was enacted to regulate the application

procedure.'? Ohio courts have recognized consistently

that the governor's clemency power exists independently

of any legislation. Knapp v. Thomas, 39 Ohio St. at 392:

State v. Morris, 55 Ohio St. 2d 101, 111, 378 N.E.2d 708,

714 (1978); State ex rel. Maurer v. Sheward, 71 Ohio St. 3d at

518, 644 N.E.2d at 378. Recourse to that power is the right

of those facing execution in Ohio.

** Pardon Records of Governor Rueben Woods 1851-1852.

(On file with the Ohio Historical Society, State Archives); 1855

Executive Documents, Part I, Public Document No. 6, p. 58,

Commutation of John Howley (Governor William Medill); 1863

Executive Documents, Part 1, Pardon Report p. 31,

Commutation of Washington King (Governor David Tod); 1865

Executive Documents, Part 1, Report of Pardons and Reprieves,

p-. 264, Reprieve of Henry Ducolon (Governor Charles

Anderson); 1866 Executive Documents, Part 1, Pardon Report,

p- 314, one commutation granted (Governor J.D. Cox); 1867

Executive Documents, Part 1, Pardon Report, p. 177, one

reprieve granted (Governor J.D. Cox); 1868 Executive

Documents, Part 1, Pardon Report, p. 17, Commutation of

Samuel Huling; Commutation of Sarah M. Victor (Governor R.B.

Hayes); 1869 Executive Documents, Part 1, Pardon Report, p.

340 one commutation and three reprieves granted (Governor

Rutherford B. Hayes); 1872 Executive Documents, Part 2,

Governor's Report, p. 586, Commutation of Thomas Mimms

(Governor Cox); 1874 Executive Documents, Part 1, Governor’s

Message, p. 23, Commutation of Hugh Daugherty (Governor

William Allen); 1875 Executive Documents, Part 1, Governor’s

Message, p. 17, one commutation granted (Governor William

Allen); 1878 Executive Documents, Part 2, Pardon Report, p.

568, Commutation of Thomas Mulhall (Governor Thomas L.

Young).

b. The Availability of Clemency Review

a Impacts the Operation of

The fact that clemency is an integral part of Ohio's

criminal justice system impacts every aspect of the legal

proceedings that go before it. Jurors, judges, and prosecu-

tors know that one final failsafe mechanism exists if

mistakes are made, new evidence discovered, or the law

is changed. The existence of the clemency process, how-

ever slightly, impacts close calls throughout the legal

system.

In addition, the existence of clemency impacts the

degree and expanse of judicial review. This Court has

noted that “Clemency is . . . the historic remedy for

preventing miscarriages of justice where judicial process

has been exhausted.” Herrera, 506 US. at 411-412. And as

the Sixth Circuit noted, this Court specifically relied upon

the availability of clemency in denying Herrera an oppor-

tunity to obtain judicial relief on his actual innocence

claim. (It is for precisely this reason that the clemency

application process in Ohio is so important. It is during

that process that the APA conducts the investigation and

gathers the information that the governor needs in order

to perform the function described in Herrera.)

Many circumstances that impact the fairness or

reliability of a conviction or sentence can be corrected

only through the clemency process. “The judge sees only

with judicial eyes, and knows nothing respecting any

Particular case, of which he is not informed judicially.”

United States v. Wilson, 32 U.S. (7 Pet.) 150, 161 (1833).2°

Rules governing admissibility, waiver and procedural

default, for example, prevent courts from considering

facts that warrant the use of clemency. Ohio courts have

rejected as grounds for judicial relief newly discovered

evidence proving innocence or wrongful conviction,

Weaver v. State, 120 Ohio St. 44, 165 N.E. 573 (1929);

decriminalization of conduct for which one is

imprisoned, In re Kline, 70 Ohio St. at 29, 70 N.E. at 512;

and un-credited pre-trial detention. State v. Summers, 32

Ohio App. 2d 312, 316, 291 N.E.2d 489, 491 (1972). In each

of these instances the courts have relied on clemency to

correct the injustice. Were clemency not available, judicial

review might expand to include areas now reserved for

clemency consideration.

c. Clemency Review Enhances the

Reliability of Convictions and Sentences

Clemency in Ohio serves as a final check on the fairness

and reliability of criminal sentences. The fact that legislative

regulation of the application process is permitted does not

limi isk the . , of clemency in Ohio’s criminal

justice system. The purpose of legislation regulating the

drawing a constitutional line between direct appeal and

clemency, saying: “[State created direct appeal] turns on the

courts’ view of the defendant's guilt or innocence; [clemency]

exists in spite of the courts’ view of the defendant's guilt or

innocence.” [Pet. Br., p. 21] To the contrary, it is precisely

because courts at times cannot consider critical facts essential to

a reliable, final adjudication of a death sentence that clemency

forms the final link in the total criminal justice process.

clemency application procedure is to create an orderly pro-

making ability. As is discussed below, the special death

penalty regulations at issue in this case are a unique obstruc-

tion to the proper function of the clemency process.

d. Due Process Protection is Not Limited

to Judicial Proceedings and Applies to

Aspects of the Clemency Process

Petitioners mistakenly assume that the Fourteenth

Amendment's guarantee that no state may “deprive any

person of life, liberty, or Property without due process of

law” applies only to judicial proceedings. Noting that a

direct appeal of right arises “at a very different stage in

the criminal process,” than does clemency review [Pet. Br.

p. 19], Petitioners argue that due Process protection does

not apply to the right to seek clemency because, “one

[appeal] is part and parcel of the judicial process; the

as stands apart from the judicial process.” [Pet. Br. p.

Due process protections are not limited to judicial

Proceedings. The text of the Fourteenth Amendment

guarantees that life and liberty will not be denied without

due process of law. “Due process of law” refers not only

to judicial proceedings but to proceedings throughout the

criminal justice system. In determining whether due pro-

cess protections applied to an executive branch deter-

mination of whether a death row prisoner was sane and

so could be executed, this Court noted that, “Although

the condemned prisoner does not enjoy the same pre-

sumptions accorded a defendant who had yet to be con-

victed or sentenced, he has not lost the protection of the

Constitution altogether.” Ford v. Wainwright, 477 U.S. 399,

411 (1996).

Petitioners’ reliance on the distinction between judi-

cial and executive decision making does nothing to

remove clemency from the textual guarantee of due pro-

cess of law. Petitioners’ recognition that clemency is “a

different stage in the criminal process,” admits the critical

point in the Sixth Circuit’s analysis - clemency is an

integral part of Ohio’s criminal justice system. As part of

the “law” used to determine whether a death sentence

will be carried out, it is entitled to some level of due

process protection.

e. The Court Need Not Reach the Issue of

Whether Counsel is Required in Clem-

ency Proceedings in Order to Determine

Whether Due Process Applies in any

Manner to Ohio’s Death Penalty Clem-

ency Procedure.

Petitioners argue that “Clemency proceedings and

direct appeals of right fall on different sides of a constitu-

tional line . . . that explains why the Fourteenth Amend-

ment grants criminal defendants a right to counsel at

trial... and on a direct appeal as of right but denies such

a right for discretionary appeals as well as disciplinary

proceedings.” [Pet. Br. p. 20, citations omitted.] Peti-

tioners confuse the issue of whether any process is due

with the questions how much or what process is due.

Some process is due in discretionary appeals. Pennsylva-

nia v. Finley, 481 U.S. 551, 556 (1987), quoting Ross v.

Moffitt, 417 U.S. 600, 616 (1974). Less process is due as a

criminal case moves further away from the initial deter-

mination of guilt. This is in part because issues have been

defined in prior proceedings and because as each level of

review is passed, assuming effective assistance of counsel

was provided and other rights observed, the risk of error

is diminished. Ross v. Moffitt, 417 U.S. 600 (1974). It is not

because somewhere in the criminal justice system a bright

line exists beyond which no process is due. It is impossi-

ble to discern from Petitioner’s reference where they

believe this line lies. It cannot be between constitutionally

required procedures and those that may be offered at the

state’s discretion. If it were there, no process would be

due in direct appeals of right. It cannot be between judi-

cial and non-judicial proceedings. If it were there, no

process would be due in an executive determination of

the condemned prisoner’s sanity before execution can

take place. The line Petitioners imagine does not exist.

Whether process is due and, if the answer is yes, to

what extent, is determined by the circumstances of the

situation. Mathews v. Eldridge, 424 U.S. 319, 335 (1976);

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Petitioners

appear to argue that if the right to counsel does not

attach, no process is due. That is not the case. Lesser or

different kinds of process may be due and while there are

good arguments to be made for the right to counsel

attaching under the circumstances of the case [see Brief

Amicus Curiae of the American Bar Association], such a

determination would be premature. The right to counsel

may or may not attach but that does not answer the

question of whether due process protections apply.

C. Mr. Woodard Has Protectable Due Process

Interests Arising from Ohio Law

1. Mr. Woodard Has a State Created Liberty

Interest in the Right to Seek Clemency

In addition to the due process protection that follows

Mr. Woodard’s life and liberty interest throughout the

criminal justice system, Ohio has created an independent

liberty interest in the right to seek clemency. Executive

clemency review is an aspect of Ohio’s criminal justice

system that is intended to insure reliability in both con-

victions and sentences. It has been used by Ohio gover-

nors when prior stages in the system have failed to insure

state-wide or intracase proportionality?! when newly dis-

covered evidence exonerating or lessening the inmate's

21 Governor Edward F. Noyes, “Another year’s experience

in the matter of hearing and deciding applications for pardon

has confirmed . . . that the law . . . should leave less discretion

with the courts. It often happens that two prisoners work side

by side in the Penitentiary, both sent there for precisely the same

crime, one for one year and the other for ten.” Also see 1873

Executive Documents, Part 2, p. 223; Governor C. William

O'Neill, Commutation of Cleo Eugene Peters, Vol. 128, Ohio

Senate Journal Index, p. 1472, #18 (1958); Governor Thomas

Herbert, Commutation of Charles Ames, Vol. 123, Ohio Senate

Journal Index, p. 1563 (1948).

culpability was found after the judgment was final and

the courts could no longer consider the new informa-

tion,*? and when a general law was too harsh or simply

unfair in its individual application.?9

The Ohio Supreme Court has recognized that those

convicted under Ohio laws have a right to seek clemency.

In re Kline, 70 Ohio St. at 29, 70 N.E. at 512. Ohioans’

liberty interest in clemency is not in the outcome of the

process any more than an accused's liberty interest at

trial is a guarantee of acquittal. Even an innocent person

may be legally and constitutionally convicted and sen-

tenced. The liberty interest is in having the clemency

assessment made, for like a trial where there is no guar-

antee of the outcome, the clemency review and decision

add one more tier of reliability to the criminal justice

process to which the accused has submitted.

Ohio has established a unique capital clemency pro-

cedure and recognized the right to seek clemency. Once

established, this system creates federally protected due

#2 Governor Richard M. Bishop, pardon of Henry Rittle on

recommendation of the prosecuting attorney, 1878 Executive

Documents, Part 2, p. 567 (1878): “I am clearly satisfied that

Rittle is not guilty of the crime as charged; of this I am satisfied

from evidence obtained lately. Besides, he has served nearly ten

years — a time long enough if he were actually guilty.”

23 Governor Richard F. Celeste, Ohio Senate Journal Index,

Vol. 144, p. 21, (1991), Commutations of Rosalie Grant, Debra

Brown, Elizabeth Green and Beatrice Lampkin, “All of these

women were black, three of the four were from Hamilton

County, and it was absolutely clear that the death penalty in

cases involving women had not been administered fairly.”

Cleveland Plain Dealer, Sunday, January 5, 1997, 1997 WL

652567.

process interests in the right to meaningfully seek clem-

ency — notwithstanding the fact that the federal constitu-

tion did not require the states to provide clemency review

in the first instance. Compare Hicks v. Oklahoma, 447 U.S.

343 (1980) (state-created right to jury sentencing pro-

tected by due process); Goss v. Lopez (419 U.S. 565 (1975)

(although federal constitution does not require states to

establish school systems, once established, the interest in

education enjoys due process protections); Morrissey v.

Brewer, 408 U.S. 471 (1972) (due process applies to parole

revocation when state creates parole option); and Evitts v.

Lucey, 469 U.S. 387 (1985) (due process requires effective

assistance of appellate counsel even though federal con-

stitution does not require states to provide appellate

review of criminal convictions).

2. Discretion in the Executive Clemency Deci-

sion-Making Process Does Not Remove the

Clemency Application Process from Due

Process Protections

Petitioners claim that this Court's ruling in Connecti-

cut Board of Pardons v. Dumschat, 452 U.S. 458, eliminates

Mr. Woodard’s liberty interest because the Ohio Gover-

nor, like the Connecticut parole board, has broad discre-

tion to grant executive clemency. Petitioners misinterpret

Dumschat.

Connecticut, like Ohio, recognizes “the right to seek

commutation.” Dumschat, 452 U.S. at 467. That right how-

ever was not at issue in Dumschat’s case and had been

given to Dumschat several times over. Id. at 461. Rather,

the Court in Dumschat considered only whether an expla-

nation of the reasons for denying clemency was required.

In rejecting the claim that Connecticut's clemency statute

created a due process liberty interest in the sought after

explanation, this Court identified the critical distinction

that separates those situations that may implicate due

process from those that likely do not:

The statute [in Connecticut] imposes no limit on

what procedure is to be followed, what evidence

may be considered, or what criteria are to be

applied by the Board. . . . This contrasts dramat-

ically with the Nebraska statutory procedures in

Greenholtz, which expressly mandated that the

Nebraska Board of Parole ‘shall’ order the

inmate’s release ‘unless’ it was decided that one

of four specified reasons for denial was appli-

cable. .. . A state cannot be required to explain

its reasons for a decision when it is not required

to act on prescribed grounds.

Id. at 466-467.

In Ohio’s two step process, the APA functions more

like the board in Greenholtz v. Nebraska, 442 U.S. at 8, than

the one in Dumschat. It does not have unfettered discre-

tion in how it conducts its investigation or the standards

that must be applied in making its decision. Its process,

like a trial, shapes the information that goes to the final

decision maker. The Ohio statutory scheme meets all the

criteria for finding a due process interest recognized in

Dumschat and Greenholtz: it limits the procedure to be

applied, it identifies relevant evidence to be considered,

and it specifies the criteria and the substantive standard

that the board must follow in making its recommenda-

tion.

Under Ohio law, the APA may recommend a pardon,

commutation, or reprieve “if in its judgment there is

reasonable ground to believe that granting a pardon,

commutation, or reprieve to the convict or paroling the

prisoner would further the interests of justice and be

consistent with the welfare and security of society.” Ohio

Rev. Code Ann. § 2967.03. By setting forth specific deci-

sional criteria (whether the interests of justice would be

furthered, and whether it would be consistent with soci-

ety’s welfare and security), and by requiring that the

board’s decision be reasonable, the statute confines the

APA's discretion within the rule of law.

3. Mr. Woodard Has a State Life Interest in

Ohio’s Clemency Procedures

Eugene Woodard also has a state “life” interest in

having access to Ohio’s clemency decision maker. This

life interest must receive due process protection indepen-

dently of the due process protection afforded Mr. Wood-

ard’s “original” life interest that is protected throughout

Ohio’s criminal justice system.

It has long been the practice in Ohio to seek clemency

review in nearly every capital case. Ohio governors have

recognized as part of their executive duty the obligation

to review capital cases. It was the current Governor's

recognition of this obligation that generated the ill-con-

sidered administrative procedure at issue in this case.

In effect the right to a capital clemency review and

decision is derived from “a mutually explicit understand-

ing,” see Leis v. Flynt, 439 U.S. 438, 442 (1979), between the

people of Ohio and their government. Just as there can be

“an unwritten common law,” in the conduct of employ-

ment relations that gives rise to a protected property

interest, Perry v. Sinderman, 408 U.S. 593, 602 (1972), so

too may there be an unwritten common law in the rela-

tionship of a government with its people that gives rise to

a life interest.

The right to seek clemency, at least in Ohio, has

special significance and independent weight in capital

cases. Ohio Governors have frequently granted clemency

in capital cases.?4 In doing so, or in deciding to allow an

execution to go forward, Ohio Governors fulfill their

function as the final check in Ohio’s system of checks and

balances that insures the fair and reliable implementation

of Ohio’s criminal laws and particularly the death pen-

alty. Those who face execution in Ohio depend on execu-

tive clemency review as the final determination of their

fate.

The Fourteenth Amendment to the United States

Constitution says that no state shall “deprive any person

of life . . . without due process of law.” That protection

extends to a life interest recognized by State law and

practice as well as directly from the structure of the

24 “The electric chair was first used in 1897. Since that date,

a total of 502 persons have been sentenced to death, of whom

315 were actually executed and 125 commuted.” Memorandum

from Harold J. Cardwell, Warden of the Ohio Penitentiary, on

Electrocution Statistics, to John M. McElroy, Executive

Assistant, State House, Columbus, Ohio. (July 7, 1970) (on file

with the Ohio Historical Society, State Archives). Ohio’s death

penalty law was held unconstitutional in 1978, Lockett v. Ohio,

438 U.S. 586 (1978). There has not been an execution in Ohio

since 1963.

Fourteenth Amendment text. Ohio’s executive clemency

decision is the final safeguard in a system designed to be

implemented by the State's legislative, judicial, and exec-

utive branches. The purpose of the Death Penalty Clem-

ency Procedure at issue in this case is “to ensure that

information about each person for whom a pardon is

considered will be available to the Governor, so that an

informed decision may be made.” State ex rel. Maurer v.

Sheward, 71 Ohio St. 3d at 525, 644 N.E.2d at 378.

Ohio’s Death Penalty Clemency Procedure is sup-

posed to enhance the reliability of the Governor's deci-

sion by providing him with the facts he needs to make

that decision. “The function of legal process, as that con-

cept is embodied in the Constitution, and in the realm of

fact finding, is to minimize the risk of erroneous deci-

sions . . . the quantum and quality of the process due in a

particular situation depend upon the need to serve the

purpose of minimizing the risk of error.” Greenholtz, 442

U.S. at 12. The fact finding process that leads to a life or

death clemency decision must be designed to avoid the

risk of error and must meet at least minimal due process

standards.

D. This Case Should be Remanded to Determine

Whether Ohio’s Death Penalty Clemency Pro-

cedure Requires Due Process Protection.

This case illustrates the need for due process protec-

tions in the administrative investigation that Ohio has

made the threshold procedure and the information-gath-

ering mechanism of its clemency process. Ohio’s 1994

Death Penalty Clemency Procedure, rather than enhanc-

ing reliability or assuring that Mr. Woodard’s right to

seek clemency is protected, does the opposite.

Mr. Woodard received a mere three days notice that a

clemency interview would be conducted in his case, and

only ten days notice of the clemency hearing. J.A. p. 4.

Because the hearing was to be held while Mr. Woodard

was still exhausting his judicial remedies, and because he

had just obtained counsel, these time constraints prohib-

ited Mr. Woodard from participating meaningfully in the

clemency hearing. He was given no opportunity to pre-

pare his life-and-death presentation. Indeed, had the

inmate interview gone forward with three days notice,

Mr. Woodard would not even have had an adequate

opportunity to consult with his attorney prior to that

single critical interview opportunity that the APA’s pro-

cedure gave him.

But for the present litigation, Mr. Woodard’s interest

in a clemency hearing, and the interest of the state in an

informed clemency decision, would have been irrepara-

bly compromised. Petitioners ignored Mr. Woodard’s

request for more time to prepare for the hearing. Peti-

tioners failed to recognize that a stay of execution had

been issued and, therefore, a clemency hearing was inap-

propriate at that time. Indeed, Petitioners did not

respond at all to Mr. Woodard’s communications. J.A. p.

4-5.

Had the clemency investigation proceeded, Ohio’s

failure to properly protect Mr. Woodard’s interests would

have been further aggravated by the restraints Ohio has

placed on counsel's participation in the process. Ohio

specifically prohibits the presence or assistance of coun-

sel during the clemency interview. Death Penalty Clem-

ency Procedure § VI(C)(2), J.A. p. 11. It also delegates a

decision on counsel's attendance and participation in the

clemency hearing to the sole discretion of the parole

board chair. Death Penalty Clemency Procedure

§ VI(D)(3), J.A. p. 12. The APA procedure turns death

penalty clemency into a “meaningless ritual.” Douglas v.

California, 372 U.S. 353, 385 (1963).

This serves neither the goals of Ohio’s criminal jus-

tice system nor the reliance of this Court on clemency as a

means of correcting injustices that are beyond judicial

review. Herrera, 506 U.S. at 411-412. Ohio’s Death Penalty

Clemency Procedure unfairly and needlessly impairs the

quality of the information gathered during the investiga-

tion by limiting the inmate’s opportunity to - articipate in

the process. It thus impairs the function of clemency

review in Ohio’s criminal justice system and infringes on

Mr. Woodard’s life and liberty interests.

Il. OHIO’S DEATH PENALTY CLEMENCY PRO-

CEDURE IMPOSES AN UNCONSTITUTIONAL

CONDITION ON MR. WOODARD’S FIFTH

AMENDMENT RIGHTS.

A. The Facts Of This Matter Are Not Fully Devel-

oped And The Sixth Circuit’s Remand Order Is

Appropriate.

The Sixth Circuit Court of Appeals ordered that the

district court, on remand, consider the possible effect of

Ohio’s Death Penalty Clemency Procedure on Mr. Wood-

ard’s Fifth Amendment rights. As with the due process

issue above, the Sixth Circuit’s remand was wholly

appropriate. The district court erred in dismissing (on the

pleadings without discovery) Mr. Woodard’s claim that

his Fifth Amendment rights may be implicated by the

operation of the Death Penalty Clemency Procedure. Fac-

tual development is essential to ascertain whether Mr.

Woodard’s Fifth Amendment rights are implicated, and

what if any, steps must be taken to avert their violation.

A Court ruling on these issues would “be premature

at this point” as “the district court must first find the

facts” that will illuminate the Fifth Amendment question.

Woodard, at 107 F.3d at 1193. In the absence of a factual

record, the Court is left to decide “ . . . abstract contro-

vers[ies] over the use of . .. words”, Regal Knitwear Co. v.

N.L.R.B., 324 U.S. 9, 15 (1945), in Ohio’s Death Penalty

Clemency Procedure. This endeavor is contrary to the

Court’s long recognition that important constitutional

questions are best decided on the basis of factual records

which tender the “underlying constitutional issues in

clean-cut and concrete form.” Rescue Army v. Municipal

Court, 331 U.S. 549, 584 (1947). See also Baxter v. Pal-

magiano, 423 U.S. 308, 323 (1976) (without a record

respecting penalty, Ninth Circuit had acted prematurely

in setting standard.).

A record is particularly essential in Fifth Amendment

cases “because the constitutional issue posed depends

upon a judgment as to how broad a protection is neces-

sary to serve the values, purposes, and policies underly-

ing the Fifth Amendment.” Piccirillo v. New York, 400 U.S.

548, 558 (1971) (Douglas, J. dissenting from the denial of

certiorari). Fifth Amendment questions simply cannot be

resolved without assessing the risk of incrimination.

Unconstitutional conditions cannot be assessed here

without a determination of whether Mr. Woodard “must

risk self-incrimination to participate in the ‘optional’

clemency interview, and a full determination of the

“nature of Petitioner APA’s Clemency Procedures.” Wood-

ard, 107 F.3d at 1193. The State has failed to prove that no

set of facts under Ohio’s Death Penalty Clemency Pro-

cedure could require that he risk self-incrimination in

order to participate in the clemency recommendation pro-

cess; therefore, the Sixth Circuit’s decision should be

affirmed.

B. Ohio’s Death Penalty Clemency Procedure

Imposes An Unconstitutional Condition on the

Exercise of Mr. Woodard’s Fifth Amendment

Right to Remain Silent.

Ohio’s Death Penalty Clemency Procedure imposes

an unconstitutional condition on Mr. Woodard’s exercise

of his Fifth Amendment right against self-incrimination.*

It forces Mr. Woodard to chose between the right to

remain silent in pursuit of further legal challenges to his

conviction and sentence and the right to pursue clem-

ency.?6

25 The Fifth Amendment was made applicable to the states

via the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 6

(1964).

26 Petitioners argue that because Mr. Woodard did not seek

a stay until seven weeks before his execution was scheduled, he

is responsible for Petitioners’ efforts to subject him to Ohio’s

Death Penalty Clemency Procedure with its uncounseled

interview and hearing in absentia. Mr. Woodard did not apply

for clemency: Petitioners forced the clemency hearing upon Mr.

1. The Doctrine of Unconstitutional Condi-

tions is Applicable Here.

“The doctrine of unconstitutional conditions holds

that government may not grant a benefit on the condition

that the beneficiary surrender a constitutional right. It

reflects the . . . view that government may not do indi-

rectly what it may not do directly.” Kathleen M. Sullivan,

Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415

(1989). The doctrine prevents the government from deny-

ing a right or benefit on the basis of the exercise of a

constitutionally protected right and forbids conditioning

the granting of a benefit on the waiver of a constitutional

right. Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v.

California Coastal Commission, 483 U.S. 825 (1987); Perry v.

Sindermann, 408 U.S. 593, 597 (1972); Shapiro v. Thompson,

394 U.S. 618 (1969); Speiser v. Randall, 357 U.S. 513 (1958).

Petitioners essentially concede not only the appli-

cability of this doctrine, but they recognize that, if the

Death Penalty Clemency Procedure requires Mr. Woodard

to sacrifice a constitutional right, the Clemency Procedure

is invalid. [Pet. Br. p. 30] The procedures demand just

such a sacrifice. In order to be heard in what may be his

only clemency interview, Mr. Woodard would have to

Woodard. Mr. Woodard applied for a stay of execution with the

Ohio Supreme Court fifty-two days before the scheduled

execution. The Supreme Court issued a stay on the forty-fifth

day before the execution date. State v. Woodard, 70 Ohio St. 3d

1429, 638 N.E.2d 580 (1994). This is not a case where Mr.

Woodard delayed seeking a stay of execution until the eleventh

hour and to say that Mr. Woodard somehow invited the

clemency hearing is disingenuous.

sacrifice his Fifth Amendment rights since the very pur-

pose of the interview is to garner information about the

accused, the crime and any other matter that may bear on

the APA’s recommendation.

Ohio granted Mr. Woodard the right and benefit of a

clemency process. Article III, Section 11 of the Ohio Con-

stitution. The State has further provided Mr. Woodard

with the rights and benefits of a clemency hearing and of

a clemency interview. Ohio Rev. Code Ann. § 2967.07;

Death Penalty Clemency Procedure Sections V1(B)(3),

(C)(1) and (2), (D), (E), J.-A. at 10, 11-13. In order to be

heard in the clemency process, Mr. Woodard must partici-

pate in the clemency interview. Although Petitioners are

silent on this issue, amici for Petitioners argue that Mr.

Woodard’s silence will be used against him in the clem-

ency determination. Brief of amicus Criminal Justice Legal

Foundation at 14; Brief of amicus States of California et ai.

at 3, 4, 22. The decision to participate in the clemency

interview cannot be voluntary when a penalty is imposed

for failing to participate. See Simmons v. United States, 390

U.S. 377, 393-394 (1968); Lefkowitz v. Turley, 414 U.S. 70,

82-83 (1973).

Petitioners’ argument that the “Constitution nowhere

prohibits States from placing conditions on the exercise of

constitutional rights” [Pet. Br. p. 26] is simply wrong, as

is their relianc on McGautha v. California, 402 U.S. 183

(1971). McGautha recognized that compelling a choice

may be improper if the choice “impairs to an appreciable

extent any of the policies behind the right.” McGautha, at

213. In this case, Mr. Woodard’s right to remain silent

about ongoing litigation over his conviction and death

sentence is directly infringed. Petitioners are compelling

Mr. Woodard’s statements without any guarantee that the

statements will not be used against him. Therefore, the

Death Penalty Clemency Procedure impairs Mr. Wood-

ard’s Fifth Amendment right to remain silent.?7

2. The Fifth Amendment is Implicated in the

Death Penalty Clemency Procedure.

The intent and goal of the Fifth Amendment is “to

insure that a person should not be compelled, when

acting as a witness in any investigation, to give testimony

which might tend to show that he himself had committed

a crime.” Counselman v. Hitchcock, 142 U.S. 547, 562 (1892).

See also McCarthy v. Arndstein, 266 U.S. 34 (1924); Lefkowitz

v. Turley, 414 U.S. 70. This case is more egregious than

those cited above because here there is ongoing litigation

over the criminal case that gives rise to the clemency

interview.

The Death Penalty Clemency Procedure requires the

APA to conduct an investigation to amass information for

the recommendation process.?8 Death Penalty Clemency

2? Petitioners’ reliance on Wyman v. James, 400 U.S. 309

(1971), is likewise misplaced. The regulation at issue in Wyman

was not an unconstitutional condition because the requirement

for home visits to continue public assistance did not implicate

the Fourth Amendment. Id. at 317. Wyman turned on the facts

that the visit was not an “unreasonable intrusion,” the visit was

not made “by police or other uniformed authority,” and there

was no ongoing criminal investigation. Id. at 321-323. These are

not the facts in this case.

28 The Parole Board is a division of Petitioner APA. Its

members are state agents, see State v. Gallagher, 38 Ohio St. 2d

Procedure VI(B); J.A. A-9-10. The Sixth Circuit naturally

concluded that such an investigation could present risks

of incrimination for Mr. Woodard, its subject.

The investigation employs the interview of the

inmate as a mechanism to gather facts. The clemency

interview is tantamount to interrogation under this

Court’s decision in Rhode Island v. Innis, 446 U.S. 291, 301

(1980) because it will undoubtedly include questioning

on the nature and circumstances of Mr. Woodard’s case.

Petitioners claim “the procedure allows Mr. Woodard to

decide whether to make a statement and if so to deter-

mine how much or how little he wishes to say.” [Pet. Br.

p. 30] Nowhere do the procedures suggest that Mr. Wood-

ard can refuse to answer questions put to him in the

clemency interview.??

291, 313 N.E.2d 396 (1974), who are statutorily bound to conduct

this official investigation. Ohio Rev. Code Ann. §§ 2967.07 and

2967.03. These actors properly fall within the contours of the

Fifth Amendment. See Mathis v. United States, 391 U.S. 1 (1968)

(incarcerated person being interviewed by a tax agent engaged

Fifth Amendment concerns), and Fare v. Michael C., 442 U.S. 707,

720 (1979) (“a probation officer is the employee of the State

which seeks to prosecute the alleged offender”). Further, unlike

the probationer in Minnesota v. Murphy, 465 U.S. 420, 429 (1984),

Mr. Woodard is physically restrained and was not free to leave

the prison.

29 Indeed, Revised Code Section 2967.03 relates that the

APA may investigate and examine or cause the investigation

and examination of prisoners confined in state correctional

institutions. Ohio Rev. Code Ann. § 5149.11 appears to authorize

the APA and its hearing officers to compel testimony during

such interview procedures. The Death Penalty Clemency

Procedure cross-references these same statutory powers vested

in this official interrogator, although not to R.C. 5149.11

The Fifth Amendment “privileges [Mr. Woodard] not

to answer official questions put him in any other proceed-

ing, civil or criminal, formal or informal, where the

answers might incriminate him in future criminal pro-

ceedings.” Lefkowitz, 414 U.S. at 77. This privilege extends

into the prison’s walls. In Baxter, 308 U.S. at 316, the

Court agreed that the protection of the privilege can

extend to prison disciplinary proceedings. The privilege

turns not on the type of proceeding, but “the nature of

the statement or admission and the exposure which it

invites.” Estelle v. Smith, 451 U.S. 454, 462 (1982), citing In

re Gault, 387 U.S. 1, 4 (1987).

Here, Mr. Woodard will be questioned about the

crime for which he has been sentenced and concerning

which there remains ongoing litigation.°° The Sixth

explicitly. Further, the Clemency Procedure relates that the

prisoner will be asked to submit to a psychological or

psychiatric evaluation, so clearly examinations are a

contemplated feature of the Procedure.

*° Ohio guarantees a right to participate in the clemency

process. In re Kline, 70 Ohio St. 25, 70 N.E. 511. This guarantee is

essential to fulfilling Petitioners’ obligation to conduct a

thorough investigation. Ohio Rev. Code Ann. § 2967.07. The

Sixth Circuit noted that “it would seem to be in the state’s own

interest to encourage an open and frank [clemency] interview,”

Woodard, 107 F.3d at 1189, and that “the government cannot be

said to have a legitimate purpose in limiting its

‘encouragement’ of clemency interviews to those inmates who

relinquish their Fifth Amendment rights,” Id. at 1191. As there is

no legitimate purpose for conditioning participation in the

clemency investigation on the waiver of Fifth Amendment

rights, it is appropriate to apply the unconstitutional conditions

doctrine.

Circuit described the problem posed by this premature,

concurrent clemency proceeding as follows:

[A] defendant who has not exhausted all post-

conviction remedies still faces a risk of self-

incrimination. If a defendant obtains a new trial,

incriminating statements made during the

appeal or post-conviction process, including

those made during a clemency interview, might

be admitted as evidence in that trial.

Woodard, 107 F.3d at 1192. Given that capital convictions

and death sentences are overturned with some frequency

in the collateral attack process,*! this risk of incrimination

from subsequent use is far from imaginary.

Further, the Death Penalty Clemency Procedure dic-

tates that information will be collected from Mr. Woodard

about his prior record and other matters. “An open-

ended clemency interview could elicit incriminating

statements regarding other acts unrelated to the prior

conviction and could support new prosecutions for addi-

tional crimes.” Woodard, 107 F.3d at 1192. The state could

charge Mr. Woodard with any crime discovered during

the interview. Thus, the risk of incrimination on this and

other crimes is not trifling. United States v. Doe, 465 U.S.

31 Of the 3,834 individuals under sentence of death from

1977-1990, 1,146 had their sentences or convictions overturned.

Michael D. Hintze, “Attacking the Death Penalty: Toward a

Renewed Strategy Twenty Years After Furman”, 24 Cotum. Hum.

Rrs. L. Rev. 395, 410 (1993) (citing U.S. Justice Department

statistics). The article finds over forty percent of all state-court

capital judgments on first petition habeas corpus challenges

were successful.

605, 610 (1984); Counselman v. Hitchcock, 142 U.S. 547, 563

(1892).

The Petitioners and their amici have offered no assur-

ances that Mr. Woodard’s Fifth Amendment rights will

not be infringed by operation of the procedure. Peti-

tioners argue that Mr. Woodard can exercise his Fifth

Amendment right without prejudice. [Pet. Br. p. 30] Amici

for Petitioners argue that any information gathered from

the interview will be used against Mr. Woodard.*2 Indeed,

the degree to which they offer different interpretations of

the Death Penalty Clemency Procedure and what the

State may choose to do in implementing it confirms the

need for factual development and then close scrutiny of

these concerns on remand.

Overall, it appears that Petitioners’ position is that

Mr. Woodard need not sacrifice his Fifth Amendment

right as he “can always exercise [his] . . . right to silence

during the initial clemency investigation. Then, assuming

[he] . . . fail[s] to obtain collateral relief from the State or

federal courts, [he] . . . can file a new clemency applica-

tion and seek an interview at that point.” [Pet. Br. p. 31]

This ignores the plain language of Ohio’s Death Penalty

Clemency Procedure. Any subsequent clemency hearing

32 Both amicus curiae for Petitioners argue that Mr.

Woodard’s silence can be used to deny him clemency. Brief of

amicus States of California et al. at 3, 4, 22 (the executive can

consider “a claimant’s declination of the opportunity to be

interviewed by clemency authorities as a factor in reaching the

clemency decision.”); Brief of amicus Criminal Justice Legal

Foundation at 14 (“If Ohio wishes to take into account

respondent's failure to admit to his current or other crimes, it

should be free to do so.”).

or review will occur only at the discretion of the parole

board chairperson. Death Penalty Clemency Procedure,

Section VI(G), J.A. at 13-14. There is only one guaranteed

clemency investigation, review, and hearing for Mr.

Woodard: the one that was scheduled to occur before Mr.

Woodard conducted any post-conviction investigation.

Therefore, the decision to participate in the clemency

interview is not a voluntary decision.

To the extent the Petitioners and their amici utilize

Baxter v. Palmagiano to justify Ohio’s clemency interview

— the single, mandatory opportunity for an inmate to be

heard in the clemency process - their reliance is mis-

placed. As the Sixth Circuit noted, Baxter is properly

distinguished on several grounds: the inquiry conducted

was for totally different purposes; the burden of proof

was on the state; and “[t]he necessity of speaking openly

to the state . . . is much greater in the clemency context

[than in a prison disciplinary hearing].” Woodard, 107 F.

3d at 1192. Moreover, the life and death stakes of a

clemency hearing clearly surpass any prison disciplinary

hearing. But even if Baxter is somehow applicable, the

Court there reaffirmed that any adverse inference drawn

could not be used as a sole basis to deny the government

benefit without violating the Fifth Amendment line of

unconstitutional conditions cases. Baxter, 425 U.S. at 318.

Further, Baxter did not suggest that the state could

compel answers inside the prison walls: if the state com-

pelled answers over the defendant’s Fifth Amendment

objection, use immunity would be required. Baxter, 425

U.S. at 316, 318. Nor can the inmate “be required to waive

such immunity” by prison officials. Id. Similarly, if the

state sought to use silence at the disciplinary proceeding

in any future criminal proceeding, Fifth Amendment con-

cerns would arise. Id. at 317. Rather than sweeping Fifth

Amendment concerns aside in the context of prison

inquiries, Baxter reaffirms that these concerns do survive

within the prison walls.

Ohio’s Death Penalty Clemency Procedure is at best

unclear as to whether Mr. Woodard’s participation in the

APA’s interview may be, when implemented, conditioned

on a waiver of his Fifth Amendment rights. More facts are

needed to fully analyze and resolve this important issue;

therefore, the Sixth Circuit properly remanded the case

and its order should be affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the Sixth

Circuit Court of Appeals should be affirmed.

Respectfully submitted,

Davip H. Boprker

Ohio Public Defender

Counsel of Record

Grecory W. Meyers

Senior Assistant Public Defender

8 East Long Street, 11th Floor

Columbus, Ohio 43215-2998

(614) 466-5394

S. Ape.te SHANK

P.O. Box 8053

Columbus, Ohio 43201

(614) 326-1217

Micnwaet J. Benza

1698 Oakmount Road

South Euclid, Ohio 44121-4045

(216) 297-0929

A-1

APPENDIX

1. Tee Ercutn AMENDMENT TO THE Unrrep States Consti-

TUTION PROVIDES:

Amendment VIII

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflic-

ted.

2. Arricie IIL, Secrion 21 oF tHe Onto COonNstTITUTION

PROVIDES:

Article III, Section 21

When required by law, appointments to state office

shall be subject to the advice and consent of the Senate.

All statutory provisions requiring advice and consent of

the Senate to appointments to state office heretofore

enacted by the General Assembly are hereby validated,

ratified and confirmed as to all appointments made here-

after, but any such provision may be altered or repealed

by law.

3. Section 121.02 oF tHe Onto Revisep Cove rprovipes, In

PERTINENT PART:

The following administrative departments and their

respective directors are hereby created:

(O) The department of rehabilitation and correction,

which shall be administered by the director of rehabilita-

tion and correction;

4. Secrion 121.03 of THe Onto Revisep Cope PROVIDES, IN

PERTINENT PART:

A-2

The following administrative department heads shall

be appointed by the governor, with the advice and con-

sent of the senate, and shall hold their offices during the

term of the appointing governor, except as provided in

division (W) of this section, and are subject to removal at

the pleasure of the governor.

(Q) The director of rehabilitation and correction;

5. Section 2967.03 of tHe Onto Revisep Cove Prrovipes,

IN PERTINENT PART:

The adult parole authority may exercise its functions

and duties in relation to the pardon, commutation of

sentence, or reprieve of a convict upon direction of the

governor or upon its own initiative. It may exercise its

functions and duties in relation to the parole of a prisoner

who is eligible for parole upon the initiative of the head

of the institution in which the prisoner is confined or

upon its own initiative. When a prisoner becomes eligible

for parole, the head of the institution in which the pris-

oner is confined shall notify the authority in the manner

prescribed by the authority. The authority may investi-

gate and examine, or cause the investigation and exam-

ination of, prisoners confined in state correctional

institutions concerning their conduct in the institutions,

their mental and moral qualities and characteristics, their

knowledge of a trade or profession, their former means of

livelihood, their family relationships, and any other mat-

ters affecting their fitness to be at liberty without being a

threat to society.

The authority may recommend to the governor the

pardon, commutation of sentence, or reprieve of any

convict or prisoner or grant a parole to any prisoner for

A-3

whom parole is authorized, if in its judgment there is

reasonable ground to believe that granting a pardon,

commutation, or reprieve to the convict or paroling the

prisoner would further the interests of justice and be

consistent with the welfare and security of society. How-

ever, the authority shall not recommend a pardon or

commutation of sentence of, or grant a parole to, any

convict or prisoner until the authority has complied with

the applicable notice requirements of sections 2930.16 and

2967.12 of the Revised Code and until it has considered

any statement made by a victim or a victim’s representa-

tive that is relevant to the convict’s or prisoner’s case and

that was sent to the authority pursuant to section 2930.17

of the Revised Code and any other statement made by a

victim or a victim’s representative that is relevant to the

convict’s or prisoner’s case and that was received by the

authority after it provided notice of the pendency of the

action under sections 2930.16 and 2967.12 of the Revised

Code. If a victim or victim’s representative appears at a

full board hearing of the parole board and gives testi-

mony as authorized by section 5149.101 of the Revised

Code, the authority shall consider the testimony in deter-

mining whether to grant a parole. The trial judge and

prosecuting attorney of the trial court in which a person

was convicted shall furnish to the authority, at the

request of the authority, a summarized statement of the

facts proved at the trial and of all other facts having

reference to the propriety of recommending a pardon or

commutation, or granting a parole, together with a rec-

ommendation for or against a pardon, commutation, or

parole, and the reasons for the recommendation. The trial

judge of the court, and the prosecuting attorney in the

A-4

trial, in which a prisoner was convicted may appear at a

full board hearing of the parole board and give testimony

in regard to the grant of a parole to the prisoner as

authorized by section 5149.101 of the Revised Code. All

state and local officials shall furnish information to the

authority, when so requested by it in the performance of

its duties.

6. Section 2967.12 of tHe Ono Revisep Cope rrovives,

IN PERTINENT PART:

(A) Except as provided in division (G) of this sec-

tion, at least three weeks before the adult parole authority

recommends any pardon or commutation of sentence, or

grants any parole, the authority shall send a notice of the

pendency of the pardon, commutation, or parole, setting

forth the name of the person on whose behalf it is made,

the offense of which the person was convicted, the time

of conviction, and the term of the person’s sentence, to

the prosecuting attorney and the judge of the court of

common pleas of the county in which the indictment

against the person was found. If there is more than one

judge of that court of common pleas, the authority shall

send the notice to the presiding judge.

(B) If a request for notification has been made pur-

suant to section 2930.16 of the Revised Code, the adult

parole authority also shall give notice to the victim or the

victim’s representative prior to recommending any par-

don or commutation of sentence for, or granting any

parole to, the person. The authority shall provide the

notice at the same time as the notice required by division

(A) of this section and shall include in the notice the

information required to be set forth in that notice. The

A-5

notice also shall inform the victim or the victim’s repre-

sentative that the victim or representative may send a

written statement relative to the victimization and the

pending action to the adult parole authority and that, if

the authority receives any written statement prior to rec-

ommending a pardon or commutation or granting a

parole for a person, the authority will consider the state-

ment before it recommends a pardon or commutation or

grants a parole. If the person is being considered for

parole, the notice shall inform the victim or the victim’s

representative that a full board hearing of the parole

board may be held and that the victim or victim’s repre-

sentative may contact the office of victims’ services for

further information.

commutation of sentence, or parole has been given as

provided in division (A) of this section and a hearing on

the pardon, commutation, or parole is continued to a date

certain, the authority shall give notice by mail of the

further consideration of the pardon, commutation, or

parole to the proper judge and prosecuting attorney at

least ten days before the further consideration. When

notice of the pendency of any pardon, commutation, or

parole has been given as provided in division (B) of this

section and the hearing on it is continued to a date

certain, the authority shall give notice of the further

consideration to the victim or the victim’s representative

in accordance with section 2930.03 of the Revised Code.

(D) In case of an application for the pardon or com-

mutation of sentence of a person sentenced to capital

punishment, the governor may modify the requirements

of notification and publication if there is not sufficient

A-6

time for compliance with the requirements before the

date fixed for the execution of sentence.

(F) The failure of the adult parole authority to com-

ply with the notice provisions of division (A), (B), or (C)

of this section or the failure of the parole board to comply

with the notice provisions of division (E) of this section

do not give any rights or any grounds for appeal or post-

conviction relief to the person serving the sentence.

7. Section 5120.01 of THE Onto Revisep CODE PROVIDES,

IN PERTINENT PART:

The director of rehabilitation and correction is the

executive head of the department of rehabilitation and

correction. All duties conferred on the various divisions

and institutions of the department by law or by order of

the director shall be performed under such rules and

regulations as he prescribes, and shall be under his con-

trol. The director shall have power to control transfers of

inmates between the several state institutions included

under section 5120.05 of the Revised Code.

8. SecTrion 5149.11 of THE Onro Revisep CODE PROVIDES,

IN PERTINENT PART:

In the exercise of any of the powers vested in the

adult parole authority, the chief of the authority, any

member of the board, or any hearing officer may admin-

ister oaths and in the name of the authority may issue

subpoenas and subpoenas duces tecum. The authority

may compel the attendance of witnesses and the produc-

tion of records and papers of all kinds and description

including any and all books, accounts, documents, mem-

orandums, and transcripts of testimony, pertaining to any

A-7

inquiry within the powers and duties of the authority.

Upon the failure of any person to comply with any order

of the authority or any subpoena or subpoena duces

tecum lawfully issued, or upon the refusal of any witness

to testify to any matter regarding which he may be law-

fully interrogated, a judge of the court of common pleas

of any county in this state, on the application of the

authority, shall compel obedience by attachment proceed-

ings for contempt, as in the case of disobedience of the

requirements of a subpoena issued from a court of com-

mon pleas or a refusal to testify therein.

9. Section 5120:1-1-15 of THE On10 ApMinistTRATIve Cope

PROVIDES, IN PERTINENT PART:

(A) All applications for pardon, reprieve or commu-

tation of sentence shall be made in writing to the Chief of

the Adult Parole Authority.

(B) When an application for a pardon, reprieve or

commutation of sentence is filed with the Chief of the

Adult Parole Authority, the authority shall conduct such

investigation as is necessary and make a recommendation

to the governor. A hearing may be held at the discretion

of the Parole Board. Such hearing if held, shall be before

at least a majority of the members of the Parole Board.

consider pardon, reprieve or commutation of sentence,

notice of such hearing shall be sent to the prosecuting

attorney and the judge of the Court of Common Pleas of

the county in which the indictment against the applicant

was found, and, if required by section 2967.12 of the

Revised Code, to the victim or victim’s family. Where

A-8

there is more than one judge of the court of common

pleas, the notice shall be sent to the presiding judge.

(D) Such notice shall contain the following:

(1) The name of the applicant;

(2) The crime for which the applicant was con-

victed;

(3) The date of conviction;

(4) The term of sentence.

(E) In the event the hearing is continued, notice of

such continuance and the date of the continued hearing

shall be sent to all interested parties at least ten (10) days

prior to the date of the continued hearing.

(F) In the event the decision of the Parole Board is

to recommend for or against pardon, reprieve, or commu-

tation of sentence, such recommendation shall be for-

warded to the Governor, together with a brief statement

of the facts, the grounds for such recommendation, and

the record or minutes of the case.

(G) The decision of the Parole Board to recommend

for or against pardon, reprieve or commutation of sen-

tence shall be within its sole discretion and shall not be

subject to administrative review.

(H) If the adult parole authority receives an applica-

tion for pardon, commutation or reprieve for a person for

whom executive clemency was denied less than two years

earlier than the date the subsequent application was

received, and the authority does not believe that the

application contains any grounds that were not or could

A-9

not have been presented in the earlier application, the

parole authority may forward the application to the gov-

ernor with the recommendation that it be denied on the

basis of the earlier review and denial. In such a case, no

hearing and no further investigation shall be necessary

unless specifically requested by the governor.

(I) The adult parole authority shall consider a case

for pardon or commutation only upon the application of

the convicted person or his counsel or at the direction of

the governor.

A-10

STATE DEATH PENALTY CLEMENCY PROCEDURES

Table 1

STATES THAT HAVE GIVEN THE CLEMENCY POWER

EXCLUSIVELY TO A BOARD. (Six sTATEs)

Connecticut

Georgia

Idaho

Nebraska

Nevada

Utah

Const., Art. IV, Sec. 13, Conn. Gen. Stat.

Sec. 321-18-26 (1992)

Const., Art. IV, Sec. 2, p 2, Ga.Code

Ann. Secs. 42-9-20, 42-9-42 (1994 and

Supp. 1995)

Const., Art. IV, Sec. 7, Idaho Code Secs.

20-240 (Supp.1995), 67-804 (1989)

Const., Art. IV, Sec. 13, Neb. Rev. Stat.

Secs. 83-1, 127 to 83-1, 132 (1994)

Const., Art. V, Sec. 13, Nev. Rev. Stat.

Sec. 213.080 (1991)

Const., Art. VII, Sec. 12, Utah Code

Ann. Sec. 77-27-5.5 (1995)

Table 2

STATES THAT USE A COMBINATION OF A BOARD AND

EXECUTIVE DECISION. (EIGHTEEN STATES)

Arizona

Arkansas

Delaware

Florida

Const., Art. V, Sec. 5, Ariz. Rev. Stat.

Ann. Secs. 31-443, 31-445 (1986 and

Supp.1995)

Const., Art. VI, Sec. 18, Ark. Code Ann.

Secs. 5-4-607, 16-93-204 (1987 and

Supp.1993)

Const., Art. VII, Sec. 1, Del. Code Ann.,

Tit. 29, See. 2103 (1991)

Const., Art. IV, Sec. 8, Fla. Stat. Sec.

940.01 (Supp.1991)

Illinois

Indiana

Kansas

Louisiana

Maryland

Mississippi

Montana

New Hampshire

Ohio

Oklahoma

Pennsylvania

South Dakota

Tennessee

Texas

A-11

Const., Art. V, Sec. 12, Ill. Rev. Stat., ch.

38, p 1003-3-13 (1992)

Const., Art. V, Sec. 17, Ind. Code Secs.

11-9-2-1 to 11-9-2-4, 35-38-6-8 (1992)

Const., Art. I, Sec. 7, Ann. Code Sec.

22-3701 (1988)

Const., Art. IV, Sec. 5(E), La. Rev. Stat.

Ann. Sec. 15:572 (West 1992)

Const., Art. II, Sec. 20, Md. Ann. Code,

Art. 27, Sec. 77 (1992), and Art. 41, Sec.

4-513 (1990)

Const., Art. V, Sec. 124, Miss. Code Ann.

Sec. 47-5-115 (1981)

Const., Art. VI, Sec. 12, Mont. Code

Ann. Secs. 46-23-301 to 46-23-316 (1991)

Const., pt. 2, Art. 52, N.H. Rev. Stat.

Ann. Sec. 4:23 (1988)

Const., Art. III, Sec. 11, Ohio Rev. Code

Ann. Secs. 2967.02 to 2967.12 (1987 and

Supp.1991)

Const., Art. VI, Sec. 10, Okla. Stat., Tit.

21, Sec. 701.11la (1990)

Const., Art. IV, Sec. 9, (Purdon 1994)

Const., Art. IV, Sec. 3, S.D. Codified

Laws Secs. 23A-27A-20 to 23A-27A-21,

24-14-1 (1988)

Const., Art. III, Sec. 6, Tenn. Code Ann.

Secs. 40-27-101 to 40-27-109 (1995)

Const., Art. IV, Sec. 11, Tex. Code Crim.

Proc. Ann. Sec. 48.01 (Vernon 1979 and

Supp. 1995)

A-12

Table 3

STATES WHERE THE GOVERNOR MUST HAVE A FAVOR-

ABLE RECOMMENDATION IN ORDER TO GRANT CLEM-

ency. (NINE STATES)

Arizona

Delaware

Florida

Indiana

Louisiana

Montana

Oklahoma

Pennsylvania

Texas

Const., Art. V, Sec. 5, Ariz. Rev. Stat.

Ann. Secs. 31-402 (1986 and Supp. 1995)

Const., Art. VII, Sec. 1 (1991)

Const., Art. IV, Sec. 8, Fla. Stat. Sec.

940.01 (1996)

Const., Art. V, Sec. 17, Ind. Code Secs.

11-9-2-1 to 11-9-2-4, 35-38-6-8 (1996)

Const., Art. IV, Sec. 5(E), La. Rev. Stat. |

Ann. Sec. 15:572 (1997)

Const., Art. VI, Sec. 12, Mont. Code

Ann. Secs. 46-23-301 to 46-23-316 (1991)

Const., Art. VI, Sec. 10, Okla. Stat. Title

57, Sec. 332.2 (1996)

Const., Art. IV, Sec. 9, 37 Pa. Code

§ 81.101 (Purdon 1994)

Const., Art. IV, Sec. 11, Tex. Code Crim.

Proc. Ann. Sec. 48.01 (Vernon 1979 and

Supp. 1995)

Table 4

STATES THAT REQUIRE THE GOVERNOR TO RECEIVE A

NON- BINDING

RECOMMENDATION FROM THE BOARD

BEFORE MAKING A CLEMENCY DECISION. (NINE STATES)

Arkansas

Const., Art. VI, Sec. 18, Ark. Code Ann.

Secs. 5-4-607, 16-93-204 (1987 and Supp.

1993)

Illinois

Kansas

Maryland

Mississippi

New Hampshire

Ohio

South Dakota

Tennessee

A-13

Const., V, Sec. 12, Ill. Rev. Stat., ch. 38, p

1003-3-13 (1992)

Const., Art. I, Sec. 7, Kan. Ann. Code

Sec. 22-3701 (1988)

Const., Art. Il, Sec. 20, Md. Ann. Code

Art. 27, Sec. 77 (1992), Art. 41, Sec. 4-513

(1990)

Const., Art. V, Sec. 124, Miss. Code Ann.

Sec. 47-5-115 (1981)

Const., pt. 2, Art. 52, N.H. Rev. Stat.

Ann. Sec. 4:23 (1988)

Const., Art. IIL, Sec. 11, Ohio Rev. Code

Ann. Secs. 2967.02 to 2967.12 (1987 and

Supp. 1994)

Const., Art. IV, Sec. 3, S.D. Codified

Laws Sec. 23A-27A-20 to 23A-27A-21,

24-14-1 (1988)

Const., Art. III, Sec. 6, Tenn. Code Ann.

Secs. 40-27-101 to 40-27-109 (1995)

Table 5

STATES WHERE THE GOVERNOR HAS THE SOLE RESPON-

SIBILITY FOR CONSIDERING CLEMENCY APPLICATIONS,

ALTHOUGH THE GOVERNOR MAY DIRECT A BOARD TO

INVESTIGATE THE APPLICATION. (FOURTEEN STATES)

Alabama

California

Colorado

Const., Amend. 38, Ala. Code Sec.

15-22-27 (1982)

Const., Art. V, Sec. 8, Cal. Govt. Code

Ann. Sec. 12030(a) (West 1995)

Const., Art. IV, Sec. 7, Colo. Rev. Stat.

Secs. 16-17-101, 16-17-102 (1989)

A-14

Kentucky Const., Sec. 77 (1988)

Missouri Const., Art. IV, Sec. 7, Mo. Rev. Stat.

Secs. 217.220 (Vernon 1995), 552.070

(Vernon 1987)

New Jersey Const., Art. V, Sec. 2, p 1, N.J. Stat. Ann.

Secs. 2A:167-4, 2A:167-12 (West 1985)

New Mexico Const., Art. V, Sec. 6, N.M. Stat. Ann.

Sec. 31-21-17 (1992)

New York Const., Art. IV Sec. 4 (1987)

North Carolina Const., Art. III, Sec. 5(6), N.C. Gen. Stat.

Secs. 147-23 to 147-25 (1987)

Oregon Const., Art. V, Sec. 14, Ore. Rev. Stat.

Secs. 144.640 to 144.670 (1991 and Supp.

1995)

South Carolina Const., Art. IV, Sec. 14, S.C. Code Ann.

Secs. 24-21-910 to 24-21-1000 (1977 and

Supp.1991)

Virginia Const., Art. V, Sec. 12, Va. Code Ann.

Sec. 53.1-230 (1995)

Washington Const., Art. III, Sec. 9, Wash. Rev. Code

Sec. 10.01.120 (1992)

Wyoming Const., Art. IV, Sec. 5, Wyo. Stat. Sec.

7-13-801 (1990)

Table 6

STATES WHERE THE GOVERNOR SITS ON THE CLEMENCY

BOARD. (THREE STATES)

Florida Art. IV § 8, Fla. Stat. Ann. § 940.01

(1996)

Nebraska Art. 4 § 13, Neb. Rev. Stat. § 83-1 (1996)

A-15

Nevada Const. Art. 4 § 14, Nev. Rev. Stat.

213.005 to 213.100 (1997)

Table 7

STATES THAT ALLOW A HEARING OF SOME SORT TO

REVIEW THE EVIDENCE OF THE INMATE. (THIRTY-FIVE

STATES)

Alabama Ala. Code Sec. 15-22-23(a)(1); 15-22-25

(1982)

Arizona Ariz. Admin. Code R5-4-601 -.603

Arkansas Ark. Code Ann. § 16-93-204 (1987 and

Supp.1993); Board Rules 4, 6

California Cal. Code Ann. § 6-4812; Cal. Code

Regs. tit. 15, § 2247 (West 1995)

Colorado Dept. of Corr. R. 203-2 (IV)(C)(E)

Connecticut Conn. Gen. Stat. Sec. 321-18-24 et seq.

(1992)

Delaware Board of Pardons Rule 1

Florida Rules of Executive Clemency R. 15

Georgia 78 Op. Att’y Gen. 44 (1978); Ga. Admin.

Code § 475-3.10(2)(b)

Idaho Idaho Admin. Code § 50.01.01-250.04,

450.08

Illinois 730 Ill. Comp. Stat., 5/3-3-13(c); Bd.

Guideline R. (B)(2)

Indiana Ind. Code Secs. 11-9-2-2 to 11-9-2-3

(1992)

Kansas Kan. Admin. Code § 45-14-1

Louisiana Clemency R. 3; La. Rev. Stat. Ann.

§ 15:573 (West 1992)

Maryland

Mississippi

Montana

Nebraska

Nevada

New Hampshire

New Mexico

New York

North Carolina

Ohio

Oklahoma

Oregon

Pennsylvania

South Carolina

South Dakota

Tennessee

A-16

Md. Admin. Code §§ 12.08.01.06 to .12

Miss. Code Ann. Sec. 47-7-17; 47-7-31

(1981)

Mont. Code Ann. § 46-23-301 (1991)

Neb. Rev. Stat. § 83-1, 127 to 83-1, 132

(1994); see also Otey v. Hopkins, 5 F.3d

1125 (8th Cir. 1993)

Nev. Admin. Code § 213.190

N.H. Rev. Stat. Ann. § 4:21 (1988)

N.M. Stat. Ann. § 31-21-17; 31-21-24

(1992); Executive Guide IV(3)

N.Y. Exec. Law § 2-A (notes)

Telephone interview by Robert K. Lowe

with Executive Clemency Board Oct. 12,

1995

Death Penalty Clemency Procedure

VK(C), (D)

Okla. Stat., 57-7-332.2 (1990)

Ore. Rev. Stat. § 144. 054, 144.650 (1991

and Supp. 1995)

37 Pa. Code § 81-211

S.C. Code Ann. § 24-21-910 to

24-21-1000 (1996)

S.D. Codified Laws § 24-14-4; 24-13-1;

S.D. Admin R. 17:60:05:01

Tenn. Code Ann. § 40-28-103 et seq.

(1995)

Texas

Utah

Virginia

Washington

Wyoming

A-17

37 Tex. Admin. Code § 147.1 (West 1995)

Utah Code Ann. § 77-27-5.5 (1995)

Parole Bd. Policy VI(B)

Bylaw of the Board of Clemency and

Pardons 3.010

Board of Parole R. I; Ill

Table 8

STATES THAT PROVIDE FOR PUBLIC HEARINGS TO

REVIEW CLEMENCY APPLICATIONS. (SIXTEEN STATES)

Alabama

Arkansas

Delaware

Georgia

Idaho

Indiana

Louisiana

Montana

Nebraska

Pennsylvania

South Dakota

Tennessee

Code Sec. 15-22-23

Code Sec. 16-93-703

Const., VII, Sec. 1, Bd. Rule 5

Information Guide of the State Board of

Pardons and Parole

IDAPA 50.01.01-250 and 450

Guidelines for Executive Clemency

Hearings (C)

220 IAC 1.1-2.2

La. Rev. Stat. Ann. § 15:573 (West 1992)

Mont. Code Ann. Sec. 46-23-302

Otey v. Hopkins, 5 F.3d 1125 (8th Cir.

1993)

37 Pa. Code Sec. 81.63

Codified Laws Sec. 24-14-16

Code Ann. Sec. 40-28-105 (all votes

must be in public)

Texas

Utah

Washington

A-18

37 Tex. Admin. Code §§ 145 and 147

West 1995, Board of Pardon and Parole

Rule 147.1

R671-312-3 and R671-315-1

Board Bylaw 3.010

Table 9

STATES THAT MAY ALLOW WITNESSES FOR BOTH SIDES

TO PRESENT WRITTEN OR ORAL STATEMENTS DURING

THE CLEMENCY PROCESS. (THIRTY-FOUR STATES)

Alabama

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Idaho

Illinois

Indiana

Louisiana

Code Sec. 15-22-23

Admin. Code R5-4-601 to 603

Memorandum from Debvrah Sallings

Arkansas Capital Resource Center, to

Michael Benza (Feb. 15, 1995) (on file

with the Office of the Ohio Public

Defender)

15 CAC 2245 et seq., and Code 6-4812

DOC 203-2 IV(C)

321-18-24a-30 and past practice

Board of Pardon rule 6

Board rule 15

Information guide of the Board of Par-

dons and Paroles

IDAPA 50.01.01:250 and 450

Guidelines for Executive Clemency

Code 11-9-2-2

La. Rev. Stat. Ann. § 15:572.4(B)(2)

(West 1997)

Maryland

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New York

Ohio

Oklahoma

Oregon

Pennsylvania

South Carolina

South Dakota

Tennessee

Texas

Utah

Virginia

A-19

Code 12.08.01.15 to .18

Telephone interview by Robert K. Lowe,

paralegal with Mississippi Public

Defender office (Nov. 7, 1995)

Missouri Capital Case Resource Manual

and Code 552.070

Code Ann. Sec. 46-23-302

Otey v. Hopkins, 5 F.3d 1125 (C.A.8

(Neb.) 1993)

213.010

4:28

Executive Clemency provision XXIV

Art. 2-A Exec. Law - notes

Clemency procedure(at Board’s discre-

tion)

Memorandum from Randy Bauman,

Oklahoma Indigent Defense System, to

Michael Benza (Feb. 18, 1995) (on file

with the Office of the Ohio Public

Defender)

Code Sec. 255-37-005

37 Pa. Code Sec. 81.93

Code Ann. Sec. 24-21-50

Codified Laws 24-11-6

Code Ann. 40-28-106

Board rule 147.5

Admin. R671-312-2

Walter A. McFarlane, The Clemency

Process in Virginia, 27 U. Rich. L. Rev.

241 (1993)

Washington

Wyoming

STATES THAT

A-20

Board Bylaw 3.080

W.S. 7-13-402

Table 10

PERMIT COUNSEL, IF RETAINED, TO BE

INVOLVED IN THE CLEMENCY PROCESS. (THIRTY-TWO

STATES)

Alabama

Arizona

Arkansas

California

Connecticut

Delaware

Florida

Georgia

Idaho

Illinois

Indiana

Louisiana

Maryland

Al. Code Sec. 15-22-23;

Az. Admin. Code R5-4-601 to 603

Executive Clemency R. 2; Memorandum

From Deborah Sallings, Arkansas Capi-

tal Resource Center, to Michael Benza

(Feb. 15, 1995) (on file with the Office of

the Ohio Public Defender)

15 CAC 2251 and 2256 and Code

6-4852.08

Conn 321-18-24a-30 and past practice

Board of Pardon rule 6

Board rule 15

Information guide of the Board of Par-

dons and Paroles

IDAPA 50.01.01:250 and 450

Guidelines for Executive Clemency and

Code 5/3-3-13

In. Code 11-9-2-2

La. Rev. Stat. Ann. § 15:572.7 (West

1997)

Md. Code 12.08.01.15 to .18

Mississippi

Missouri

Montana

Nebraska

Nevada

New Jersey

New York

North Carolina

Oklahoma

Oregon

Pennsylvania

South Carolina

South Dakota

Tennessee

Texas

Utah

Virginia

A-21

Miss. Code 47-7-31

Missouri Capital Case Resource Mate-

rials

Mont. Code Ann. Sec. 46-23-302

Otey v. Hopkins, 5 F.3d 1125 (C.A.8

(Neb.) 1993)

Telephone interview by Robert K. Lowe

with Nevada Public Defender office

(Sept. 21, 1995)

Executive Clemency provision XXIV

N.Y. Exec. Law § 2-A (notes)

Telephone interview with Executive

Clemency Board (Oct. 12, 1995)

Memorandum from Randy Bauman,

Oklahoma Indigent Defense System, to

Michael Benza (Feb. 18, 1995) (on file

with the Office of the Ohio Public

Defender)

Ore. Code Sec. 255-37-005

37 Pa. Code Sec. 81.82

S.C. Code Ann. Sec. 24-21-50

S.D. Codified Laws 24-11-6

Tenn. Code Ann. § 40-28-106

Board rule 147.5

Utah Admin. R671-312-2

Walter A. McFarlane, The Clemency

Process in Virginia, 27 U. Rich. L. Rev.

241 (1993)

A-22

Washington Board Bylaw 3.080

Wyoming W.S. 7-13-402

Table 11

STATES THAT PROVIDE APPOINTED COUNSEL FOR

Cremency Review. (THREE sTATes)

California 15 CAC 2251

Florida Fla. State. Ann. § 27.51

Tennessee Tenn. Code Ann. § 40-28-106(b)(4)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.