# Respondents Brief — Ohio Adult Parole Authority v. Woodard

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0073%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 272

## Text

Supreme Couft, W.S.
- Fit ED
\e
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
I

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.

II

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............

13

13

18

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

iv

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

37

v

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

vi

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

x

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)................. ;

xi

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

2

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

3

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

10

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).

11

“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.

12

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).

13

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

14

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

15

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.

16

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.

17

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

18

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).

19

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

21

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.”

23

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

© Petitioner cites Wilson incorrectly as authority for
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.

24

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.

1

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

25

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

26

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

'

27

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).

28

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.

29

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,

30

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.

31

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

32

“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.

33

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

34

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

35

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

36

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.

37

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.

38

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.

39

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

40

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

41

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

42

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.

43

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.

44

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.”).

45

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

46

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.

¢

47

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.

(C) When notice of the pendency of any pardon,
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.

(C) At least three weeks prior to any hearing held to
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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0073%3A08. Public record. Not legal advice.