Amicus Curiae Brief — Ohio Adult Parole Authority v. Woodard

No. 96-1769

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Supreme Court of the United Stateson

. ee oe

OCTOBER TERM, 1997

OHIO ADULT PAROLE AUTHORITY, et ai.,

EUGENE WOODARD,

Petitioners.

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION AND

THE ACLU OF OHIO IN SUPPORT OF RESPONDENT

Diann Y. Rust-Tierney

American Civil Liberties Union

122 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 544-1681

Joan M. Englund

ACLU of Ohio Foundation, Inc.

1266 West Sixth Street

Cleveland, Ohio 44113

(216) 781-6276

Daniel T. Kobil

(Counsel of Record)

Capital University Law School

303 East Broad Street

Columbus, Ohio 43215

(614) 236-6675

Steven R. Shapiro

American Civil Liberties Union

125 Broad Street

New York, New York 10004

(212) 549-2500

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TABS OF ALITRRBEMID ccc ewe he cence, ili

RE er Eo oOo tc ate eee dense l

STATEMENT OF THE CASE ....... cece: l

SUMMARY OF ARGUMENT ................. 4

ON a oh CRO VAS A eidtctah Je Sec cts 5

I. OHIO’S LAW AND TRADITIONS

HAVE CREATED A LIBERTY IN-

TEREST IN FAIR CLEMENCY

PROCEEDINGS THAT IS PROTEC-

TED BY THE DUE PROCESS

Ross ss he oe ee a a we 86 5

A. Ohio Clemency Law And Tradi-

TN Ne aie ee Aig ed Sah 6

TABLE OF CONTENTS

B. The APA’s New Clemency Policy

Deprives Woodard Not Merely Of

Procedure For Its Own Sake, But

Of Real And Substantial Interests

In Seeking Clemency, In Having

A Thorough Investigation Con-

ducted In His Case, And In

Having A Report And Recom-

mendation Made To The Governor

EE a's is Wace’ a Ge kee 8 a eo

I]. OUR NATION’S HISTORY,

LEGAL TRADITIONS, AND

PRACTICES DEMON-

STRATE THAT RESPON-

DENT HAS A SUBSTAN-

TIVE DUE PROCESS

RIGHT TO PURSUE CLEM-

ENCY, ARISING FROM

THE FOURTEENTH

AMENDMENT ITSELF,

WHICH MANDATES RUDI-

MENTARY FAIRNESS IN

THE CLEMENCY PROCESS ........

ees cere bee yes Se eae sseccece

ii

TABLE OF AUTHORITIES

Page

Cases

Albright v. Oliver,

nn... te bebe Kove be bC6 be cuSex 20

Beck v. Alabama,

nn as <5 a och eb eek 6 Kh at hie 14

Biddle v. Perovich,

a er oS Se as ow eee 4 23

Board of Pardons v. Allen,

oi a wae cen eh wAW 13

Collins v. Harker Heights,

nin a o> tn eb 0.9.0 bee we 6.08 20

Connecticut Bd. of Pardons v. Dumschat,

i ree 4, 12, 13, 14

Del A. v. Roemer,

Pe Ee ED, BOUED cnc vccessccesvae 16

Douglas v. California,

a ES ER a eR Pa 20

Evitts v. Lucey,

RO oe eee ere ae 16, 17

Felker v. Turpin,

a ee 6s os od ecevle ees 19

Fetterly v. Paskett,

15 F.3d 1472 (9th Cir.),

cert. dented, S13 U.S. 914 (1994) ... 2.2... cc ccc. 17

Ford v. Wainwright,

PE alas Gace cb iswes acess 20, 21

iii

Page

Greenholtz v. Nebraska Penal Inmates,

See ee 6 hn oe al BREE 6 6-4 ae oe 13

Gregg v. Georgia,

ee EE sb od Kis uh aoe ere ae 19

Herrera v. Collins,

- > 5 & — — RP Pa 5, 11, 17, 18, 19, 22

In re Sapp,

118 F.3d 460 (6th Cir.),

cert. denied,

mm! OP ere 10

Masson v. New Yorker Magazine,

See Ge, EE 6c sb 66 20 se O Nee 5 oo Os oe 4

Olim v. Wakinekona,

GE Wat a StS s ceeCRCS Rb res boo 14, 15

Otey v. Stenberg,

pr | fl or 22

Palko v. Connecticut,

ee es So aes ves do uw eek eciin 5, 20

Roberts v. Louisiana,

Ge SE 0's 6 6 Go 6 wae es tke Oo unee 23

Rochin v. California,

Dee ee EE so 6.s bo ccbdeed kapeescae 20

Sandin v. Conner,

515 U.S. _.,

Se EE. sc ve wiv ekMeebeaewee ck 15

Santosky v. Kramer,

Gp Sa PE eck occeécescwoweetiitesces 20

iv

Snyder v. Massachusetts,

ee is a be Cb h es See Cen sobs 20

Stanford v. Kentucky,

he See nk oo ae nb he a hk 19

State ex rel. Maurer v. Sheward,

ee ee OU nc odbc cue see shee passim

State v. Woodard,

623 N.E.2d 75 (1993),

cert. denied, 512 U.S. 1246 (1994) ............... 2

Sun Oil Co. v. Wortman,

sa 5d Coen be bho y ewe ae 15

Wainwright v. Brownlee,

SD 5 VSS) cole Se vestees 22

Washington v. Glucksberg,

pee eK ITT rere 18

Wolff v. McDonnell,

ESE ee ee 15

Woodson v. North Carolina,

RE Sti. sc abe ob 'd wen e es ee 21

Woratzeck v. Arizona Bd. of

Executive Clemency,

ee PD 4. cscs cout puwkn ened 22

States Constitutions and Statutes

Conn. Gen. Stat. §18-26 (1981) .............6046. 13

rere 6

CD Ge. GR: Tis OE CUD ccc ee ccc cee cees 7

Vv

Page

OHIO Const. art. III, §11 (1852)

(as amended Jan. 1, 1996)................... 1,2,7

Ohio Rev. Code §2967.03 (Anderson 1996) ......... 2

Ohio Rev. Code §2967.07 (Anderson 1996) ..... 1, 8, 10

Ohio Rev. Code §2967.12 (Anderson 1996) ......... 2

Legislative History

BIENNIAL REPORTS OF THE OHIO PARDON

AND PAROLE COMMISSION OF PARDONS,

COMMUTATIONS, AND REPRIEVES ................ 7

126 OHIO SENATE JOURNAL ..........5-500 eee: 7

127 OnlO SENATE JOURNAL ............---2005- 8

128 Camo GEMATE JOURNAL .. 0. ccc cece es eeees 8

Sat Ge CE NE, noc eS ewecceactevnces 8

Soe Ge SE MN yore obec vecesp ase omens 8

131 OHIO SENATE JOURNAL ................+4-. s

Other Authorities

4 WILLIAM BLACKSTONE,

ee cide ew eeec eet sesh aws 18

THE FEDERALIST No. 74

(A. Hamilton)(C. Rossiter, ed. 1961) .............. 18

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is

nationwide, nonprofit, nonpartisan organization with snip

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and our nation’s civil

rights laws. The ACLU of Ohio is one of its statewide af-

filiates. The ACLU has participated in numerous death pen-

alty cases before this Court and has long taken the position

that the state must scrupulously obey due process require-

ments when it seeks to impose the death penalty. The out-

come of this case is, therefore, a matter of great concern to

the ACLU and its members.

STATEMENT OF THE CASE

Under the Ohio constitution, the governor has authority

to grant clemency; the clemency process, however, is subject

to legislative regulation. OHIO CONST. art. III, §11. The

General Assembly has exercised that authority by enacting a

comprehensive statutory scheme designed to assure that the

governor’s clemency decisions are well-informed. In partic-

ular, Ohio law requires that the Adult Parole Authority

(APA) conduct a “thorough investigation" of whether clem-

ency is warranted, and issue a written report and recommen-

dation to the governor. Ohio Rev. Code §2967.07 (Ander-

son 1996).

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici state that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

The APA may recommend clemency if "such acu

would further the interests of justice and be consistent with

the welfare and security of society." Ohio Rev. Code

§2967.03 (Anderson 1996). Prior to recommending clemen-

cy, the APA must notify the prosecuting attorney and trial

judge in the sentencing jurisdiction, as well as the victim’s

representative, of the pendency of clemency. Ohio Rev.

Code §2967.12 (Anderson 1996). The failure of the APA to

fulfill its duties invalidates any pardon or commutation is-

sued by the governor. State ex rel. Maurer v. Sheward, 644

N.E.2d 369 (Ohio 1994); Onio Const. art. II], §11 (as

amended Jan. 1, 1996).

Eugene Woodard was convicted of murder in Ohio and

sentenced to death. His conviction and sentence were af-

firmed by the Ohio Court of Appeals and by the Ohio Su-

preme Court. State v. Woodard, 623 N.E.2d 75 (1993),

cert. denied, 512 U.S. 1246 (1994). He was originally

scheduled to die on October 7, 1994. On August 24, 1994,

the Ohio Supreme Court stayed the execution date so that

Woodard could pursue post-conviction relief.

Two weeks later, Woodard was notified by the APA

that a clemency hearing had been set for September 16,

1994, then only ten days away. At the same time, Woodard

was informed that he had a right to request a pre-hearing in-

terview with the APA, which would be held three days later

on September 9, 1994. Through newly appointed counsel,

Woodard objected to the short notice. Woodard’s counsel

also requested the right to attend and participate in both the

hearing and interview to assure that the conduct of the clem-

ency proceedings did not prejudice Woodard’s pendin~ ap-

plication for post-conviction relief.

When his request was not granted, Woodard brought

suit under 42 U.S.C. §1983, challenging the constitutionality

of the APA’s clemency procedures.’ Those procedures are

based, in part, on regulations adopted by Ohio’s Department

of Rehabilitation and Correction in July, 1994.2 Among

other things, the regulations provide that the APA must

schedule a clemency review 45 days prior to any execution.

An inmate is then barred from seeking a subsequent clemen-

cy hearing without leave of the APA. In this case, Wood-

ard’s execution was stayed by the Ohio Supreme Court

within the 45 day period. As a result, the clemency review

and the application for post-conviction relief were scheduled

to proceed simultaneously. In addition, the regulations pro-

hibit the presence of counsel at any pre-hearing interview

conducted by the APA even when (as here) there is ongoing

litigation, and even though the inmate’s uncounseled state-

ment can then be used against him at the clemency hearing.

Finally, the APA’s procedures bar the introduction of any

documentary evidence or testimony at the clemency hearing

other than whatever uncounseled statement the inmate may

have given at his pre-hearing interview.‘

Adopting the recommendation of the Magistrate Judge,

the district court granted the APA’s motion for judgment on

the pleadings. The Sixth Circuit reversed on two grounds.

First, it rejected the lower court’s conclusion that the APA’s

procedures were immune from scrutiny under the Due Proc-

ess Clause. Woodard v. Ohio Adult Parole Authority, 107

F.3d 1178 (6th Cir. 1997). Second, it held that dismissal on

the pleadings was improper because the APA’s procedure

> He also sought a temporary restraining order. Notwithstanding its ear-

lier position to the contrary, the APA agreed to postpone the clemency

proceedings indefinitely once the §1983 suit was filed.

> See Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1195

(6th Cir. 1997)(Nelson, J., concurring in part and dissenting in part).

* See Complaint at $10.

may have burdened Woodard’s Fifth Amendment privilege

against self-incrimination by imposing an unconstitutional

condition on his participation in an uncounseled clemency

interview. Jd. at 1189-91. The Sixth Circuit then remanded

the case to the district court on both claims for the develop-

ment of a factual record. Rather than return to the district

court, the APA sought certiorari. Accordingly, the case

comes before this Court only on the pleadings, and the alle-

gations contained in those pleadings must be accepted as

true. See, e.g., Masson v. New Yorker Magazine, 501 U.S.

496, 520 (1991).

SUMMARY OF ARGUMENT

As a matter of law and tradition, the State of Ohio has

long insisted that the governor’s exercise of clemency must

be preceded by a "thorough investigation." Since 1965, the

responsibility for conducting that investigation has rested

with the Ohio Adult Parole Authority.

The obligation to conduct a "thorough investigation" is

a mandatory one under Ohio law. Especially in a death

penalty context, this statutory entitlement is more than suf-

ficient to trigger the protections of the Due Process Clause

under this Court’s well-established precedents. It also dis-

tinguishes this case from Connecticut Bd. of Pardons v.

Dumschaut, 452 U.S. 458 (1981). In Dumschaut, this Court

emphasized that the clemency decision remained a discre-

tionary one. Here, Woodard’s due process claim does not

depend on a right to receive clemency. Instead, it turns on

the state-guaranteed right to a "thorough investigation" and

meaningful consideration of Woodard’s clemency appli-

cation.

The right to fair clemency procedures is also -protected

by principles of substantive due process. As this Court has

noted, every state that authorizes capital punishment also

authorizes clemency. Herrera v. Collins, 506 U.S. 390, 414

(1993). Clemency has historically been seen as a necessary

fail safe in capital cases, and is plainly part of our nation’s

legal tradition. /d. The notion that the fail-safe function of

clemency is irreconcilable with arbitrary procedures does not

require an expansive view of substantive due process. Rath-

er, it reflects fundamental principles of justice at the core of

the Fourteenth Amendment. Palko v. Connecticut, 302 U.S.

319, 325 (1937).°

ARGUMENT

I. OHIO’S LAW AND TRADITIONS HAVE

CREATED A LIBERTY INTEREST IN FAIR

CLEMENCY PROCEEDINGS THAT IS PRO-

TECTED BY THE DUE PROCESS CLAUSE

As the Sixth Circuit correctly noted and as petitioner

concedes, a Fourteenth Amendment liberty interest can be

derived from either state law or the Due Process Clause it-

self. 107 F.3d at 1183. In this case, the Sixth Circuit prop-

erly found a protected liberty interest under the Due Process

Clause given the integral role that clemency plays in Ohio’s

overall scheme of death penalty adjudication. See pp.16-17,

supra.

The Sixth Circuit did not, however, accept Woodard’s

contention that state law also gives rise to a protected liberty

interest in fair clemency procedures.® Amici respectfully

* Although this brief addresses only the due process issues, amici sup-

port Woodard’s contention that the APA’s clemency procedures uncon-

stitutionally burden his Fifth Amendment rights.

° This may be attributable to the fact that neither the Sixth Circuit nor

the district court had the benefit of discovery or an evidentiary record

concerning Ohio’s executive clemency practices in capital cases.

5

submit that the Sixth Circuit’s rejection of a state-created

liberty interest was erroneous, and provides an alternative

ground for upholding the judgment below.

Ohio’s constitution, statutes, and decisions impose man-

datory limits on the discretion of the APA and the governor

to grant pardons and commutations without conducting a

thorough investigation into whether clemency is appropriate.

Thus, under Ohio law and tradition, Woodard had a legiti-

mate expectation that he would be afforded a reasonable op-

portunity to apply for clemency before being executed and

that the APA would conduct a mandatory, thorough investi-

gation of his case.

In ruling that no state-created liberty interest existed,

the Sixth Circuit gave short shrift to the body of law de-

signed to further Ohio’s interest in assuring that the power

to grant clemency is not exercised in an arbitrary fashion.

In fact, Ohio has recently reaffirmed that interest in two dra-

matic and revealing ways. First, the Ohio Supreme Court

invalidated a pardon issued by the governor because it did

not comply with state-mandated procedures. See pp.9-10,

supra. Second, the citizens of Ohio amended the constitu-

tional provisions governing clemency to reemphasize the

importance of procedural regularity. See pp.6-7, supra.

A. Ohio Clemency Law And Tradition

The Ohio Constitution of 1802, art. II, §5, like the

United States Constitution, granted the executive plenary

power over clemency.’ In 1852, however, the clemency

provisions of Ohio’s constitution were modified and the

clemency power of the governor was made "subject" to

” The Ohio Constitution of 1802 provided that the governor “shall have

the power to grant reprieves and pardon, after conviction, except in

cases of impeachment."

"such regulations as to the manner of applying for pardons,

as may be prescribed by law." OHIO CONnsT. art. III, §11

(1852). The purpose of this revision was to provide the

Ohio General Assembly with the authority to regulate the

pardon application process by "establish{ing] prerequisites to

the Governor’s exercise of the power to grant pardons."

State ex rel. Maurer v. Sheward, 644 N.E.2d at 374.

For nearly 150 years, Ohio’s constitutional provisions

governing clemency remained unchanged. During this cen-

tury and a half, Ohio’s governors regularly employed the

clemency power to commute capital sentences. For exam-

ple, between 1953 and 1963 when Ohio had its last execu-

tion, Ohio’s governors reported to the General Assembly

that they had commuted the death sentences of at least 13

convicted murderers to life imprisonment, while 25 others

were executed. See BIENNIAL REPORTS OF THE OHIO PAR-

* Article II], §11 of the Ohio Constitution of 1852 provided in full:

[The Governor} shall have power, after conviction, to grant

reprieves, commutations, and pardons, for all crimes and of-

fenses, except treason and cases of impeachment, upon such

conditions as he may think proper; subject, however, to such

regulations, as to the manner of applying for pardons, as may

be prescribed by law. Upon conviction for treason, he may

suspend the execution of the sentence, and report the case to

the General Assembly, at its next meeting, when the General

Assembly shall either pardon, commute the sentence, direct its

execution, or grant a further reprieve. He shall communicate

to the General Assembly, at every regular session, each case

of reprieve, commutation, or pardon granted, stating the name

and crime of the convict, the sentence, its date, and the date

of the commutation, pardon, or reprieve, with his reasons

therefor.

On November 7, 1995, this provision was amended by Ohio voters to

force the governor to comply with regulations imposed by law as to the

manner of applying for “commutations,” as well as pardons. /d (as

amended Jan. 1, 1996).

DON AND PAROLE COMMISSION OF PARDONS, COMMUTA-

TIONS, AND REPRIEVES (Biennial reports to General Assem-

bly of cases in which Governors Lausche, Brown, O’Neill,

DiSalle, and Rhodes granted clemency), reprinted in 126

OHIO SENATE JOURNAL 1542-47; 127 OHIO SENATE JOUR-

NAL 1324-34; 128 OHIO SENATE JOURNAL 1470-75; 129

OHIO SENATE JOURNAL 1746-55; 130 OHIO SENATE JOUR-

NAL 1809-16; 131 OHIO SENATE JOURNAL 1656-65.” In

making these clemency decisions, Ohio’s governors histori-

cally sought and relied on favorable recommendations from

the Pardon and Parole Commission (predecessor of the

APA). E.g., Commutation of Lewis Niday (Nov. 23, 1959),

reported in 129 OHIO SENATE JOURNAL 1747; Commutation

of James Louis Long (Feb. 8, 1962), reported in 130 OHIO

SENATE JOURNAL 1811.

Ohio reinstituted the death penalty in 1981, and the use

of clemency in capital cases also resumed. By then, the

Ohio legislature had codified the prior tradition of carefully

investigating all clemency applications. Specifically, Ohio

law has mandated since 1965 that the Adult Parole Authori-

ty must conduct "a thorough investigation into the propriety

of granting" clemency in all cases and make a nonbinding

recommendation to the governor.

* Absent the sort of discovery that Woodard sought in his lawsuit from

the APA, it is difficult to ascertain the exact number of death sentences

that have been remitted through clemency. The Biennial Reports some-

times omit information necessary to such a determination. However,

every one of the referenced Biennial Reports recounts the commutation

of one or more death sentences by the governor.

'° Ohio Rev. Code §2967.07 provides (emphasis added):

All applications for pardon, commutation of sentence, or re-

prieve shall be made in writing to the adult parole authority.

Upon the filing of such application, or when directed by the

(continued...)

Any ambiguity about the meaning of this provision was

authoritatively resolved by the Ohio Supreme Court in State

ex rel. Maurer v. Sheward, 644 N.E.2d 369, when it invali-

dated an executive pardon granted by the governor before

the APA was given an opportunity to conduct a "thorough

investigation" and make a recommendation. At the same

time, the Maurer court ruled that the absence of a "thorough

investigation" did not limit the governor’s ability to com-

mute sentences because the 1852 state constitution granted

the legislature regulatory authority over pardons but not

commutations. The fact that Ohio’s constitution was subse-

quently amended to stipulate that commutations are also

subject to the legislature’s regulatory authority, see n.8,

supra, only underscores the state’s commitment to procedur-

al regularity whenever clemency is at stake.

The holding in Maurer provides strong support for

Woodard’s assertion that he has a liberty interest under Ohio

law in making an application for clemency and receiving a

thorough investigation of his request by the APA, followed

by a written report and recommendation to the governor.

The Maurer court construed Ohio law as breaking the clem-

ency power into “two distinct elements -- the application

process and the consideration process." Jd. at 378. The ap-

plication process extends to the time "just before" the gover-

nor reaches a clemency decision and includes "the filing of

the application itself, the investigation, the recommendation,

and the full report by the APA." /d Although the governor

'° (..continued)

governor in any case, a thorough investigation into the propri-

ety of granting a pardon, commutation, or reprieve shall be

made by the authority, which shai// report in writing to the

governor a brief statement of the facts in the case, together

with the recommendation of the authority for or against the

granting of a pardon, commutation, or reprieve, the grounds

therefor [sic] and the records or minutes relating to the case.

9

has the final say over whether to grant or deny clemency,

there must first be compliance with the application element,

"which requires the APA to investigate, recommend, and

report before the Governor may grant a pardon.” Id.

(emphasis added).

According to the Maurer court, this mandatory applica-

tion element is "meant 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."

Id In Maurer itself, the Ohio Supreme Court concluded

that because Governor Celeste had granted the pardon in

question before the APA had completed its thorough investi-

gation, report, and recommendation, “the pardon purportedly

granted was invalid from the outset." Jd at 379.

The combined effect of Maurer, the revised clemency

provisions to the Ohio Constitution, Ohio Rev. Code Ann.

§2967.07, and Ohio’s historical capital clemency practice is

to create a uniquely bifurcated clemency system. See Jn re

Sapp, 118 F.3d 460, 465-66 (6th Cir.), cert. denied, __, U.S.

__, 117 S.Ct. 2536 (1997)(rejecting a due process challenge

to Kentucky’s clemency system because Kentucky, unlike

Ohio, “has not made the clemency process part of the state’s

overall adjudicative process"). Clemency in Ohio is com-

prised of a decisionmaking element that is discretionary and

unfettered, and an investigatory-recommendation element

that gives rise to Woodard’s liberty interest because it is un-

equivocally mandatory, and binds both the APA and the

governor. According to the Ohio Supreme Court:

The General Assembly has chosen the word

"all" to indicate that every request for a pardon

must go to the APA for evaluation. In addi-

tion, the General Assembly has chosen to use

the word "shall" in R.C. 2967.07 three times in

connection with the APA’s role in the pardon

10

application process. This indicates the manda-

tory nature of the APA investigation and of the

entire APA involvement in the APA investiga-

tion process.

Maurer, 644 N.E.2d at 378 (emphasis added).

B. The APA’s New Clemency Policy Deprives

Woodard Not Merely Of Procedure For Its

Own Sake, But Of Real And Substantial In-

terests In Seeking Clemency, In Having A

Thorough Investigation Conducted In His

Case, And In Having A Report And Recom-

mendation Made To The Governor By The

APA

The failure of the APA to conduct a meaningful investi-

gation in death penalty cases denies Woodard, and all other

death row inmates in Ohio, real and substantial rights guar-

anteed by state law and protected by the Fourteenth Amend-

ment. By denying Woodward a genuine opportunity to par-

ticipate in the process, the APA’s clemency procedures ef-

fectively deprive Woodward of meaningful access to clem-

ency. Considering the crucial role that clemency has played

in Ohio’s unique system of capital punishment, the impor-

tance of having an unimpeded opportunity to apply for

clemency and to receive a thorough investigation by the

APA cannot be overstated. This Court recognized as much

when it observed that "[c]lemency . . . is the historic remedy

for preventing miscarriages of justice where judicial process

has been exhausted." Herrera v. Collins, 506 U.S. at 411-

12. Surely an administrative policy that radically curtails

access to Ohio’s historic remedy in capital cases, and that

limits the scope of the mandatory investigation into whether

clemency is deserved, has taken away an essential interest

created by state law.

ll

tions" have been placed on the governor’s clemency power.

Relying on Connecticut Bd. of Pardons v. Dumschat, 452

U.S. 458, the state contends that unless Woodard can show

that he has a right to receive clemency under certain cir-

cumstances, the Due Process Clause has nothing to say

about how Ohio dispeases clemency.

If Woodard were predicating his Fourteenth Amend-

ment interest on the likelihood of receiving clemency, then

presumably Dumschat would be relevant. However, unlike

the prisoners whose claims were rejected in Dumschat,

Woodard plainly is not contending that he has a right to due

process because he has a reasonable likelihood of receiving

clemency under state law. Rather, he is arguing that due

process is triggered because Ohio law imposes on the APA

a mandatory obligation to consider his application for clem-

ency, thoroughly investigate his case, and convey a recom-

mendation to the governor. Dumschat never considered this

question and its reasoning is not appropriately extended to

this case for several reasons.

First, Dumschat dealt with an attempt to impose proce-

dural restraints on the ultimate decisionmaker in Connecti-

cut’s clemency scheme, the Board of Pardons, which had

absolute discretion both as to whether and how clemency

was granted.'' In determining that Connecticut law did not

'' The Connecticut statute in question provided:

(a) Jurisdiction over the granting of, and the authority to

grant, commutations of punishment or releases, conditioned or

absolute, in the case of any person convicted of any offense

against the state and commutations from the penalty of death

(continued...)

12

create a protected liberty interest, this Court reasoned that

the “commutation statute, having no definitions, no criteria,

and no mandated ‘shalls,’ creates no ... duty or constitu-

tional entitlement." /d. at 466.

By contrast, Woodard does not challenge the "consider-

ation" element carried out by the governor as ultimate deci-

sionmaker, but the investigatory-recommendation element

with which the APA is charged under Ohio law. See State

ex rel. Maurer v. Sheward, 644 N.E.2d at 378. Unlike the

Connecticut statute considered in Dumschat, Ohio’s clem-

ency statute repeatedly uses nondiscretionary language.

Maurer, 644 N.E.2d at 378. In addition, the decision of the

Ohio Supreme Court in Maurer employing judicial review

to invalidate clemency decisions that are made without an

APA investigation, report, and recommendation further sug-

gests an intention to “cabin the discretion" of the clemency

authorities. See Board of Pardons v. Allen, 482 U.S. 369,

381 (1987). In that regard, Ohio’s law is far more similar

to the parole statute that gave rise to procedural protections

in Greenholtz v. Nebraska Penal Inmates, 442 US. |

(1979), than to the Connecticut commutation statute in

Dumschaut. Thus, Woodard’s claim that he is entitled to

meaningful access to clemency and an investigation and rec-

ommendation by the APA is not "simply a unilateral hope,”

but is firmly rooted in the mandatory "statutes or other rules

'' (continued)

shall be vested in the board of pardons.

(b) Said board shall have authority to grant pardons, condi-

tioned or absolute, for any offense against the state at any

time after the imposition and before or after the service of

any sentence.

Conn. Gen. Stat. §18-26 (1981).

13

defining the obligations of the authority charged with exer-

cising clemency." Dumschat, 452 U.S. at 465.

Second, Dumschat dealt with the asserted liberty inter-

ests of prisoners who were merely seeking early release

from serving noncapital sentences. /d. at 471 n5. By

contrast, Woodard is arguing that his death sentence should

not be imposed at all. Because he is seeking to avert the

imposition of capital punishment, Woodard has a qualita-

tively different interest in seeking clemency than the prison-

ers in Dumschat. See Beck v. Alabama, 447 U.S. 625

(1980)(holding that the Due Process Clause gives heightened

procedural protections to capital defendants because of the

greater need for reliability).

The state also argues that even if Ohio law does impose

mandatory constraints on the APA, those requirements guar-

antee Woodard only “procedural” rights, not “substantive”

rights. Relying primarily on Olim v. Wakinekona, 461 U.S.

238 (1983), the state contends that due process does not at-

tach to what it describes as state-created "procedural" rights.

Olim, however, held only that an om an rule aged

ing a hearing prior to some prison ers not give

mete 5 cantina seta Waid" tone te

in turn triggered procedural protections. Justice Blackmun

reasoned that if the decisionmaker can deny the requested

relief for any constitutionally protected reason or for no rea-

son at all, the state has not created a protected liberty inter-

est. Id. at 249.

In the instant case the APA is not the final decision-

maker, only an advisory body charged with the mandatory

task of conducting a "thorough investigation" of Woodard’s

clemency application and of making a report and recommen-

dation to the governor. As the Maurer case established, the

APA has no discretion in fulfilling these tasks, and thus

stands in a different relation to Woodard than did the ad-

14

ministrator in Olim to that prisoner. The administrator in

Olim had unfettered discretion to uphold the challenged pris-

on transfer, which included presumably the ultimate say

over the lesser decision of whether to convene a hearing to

assist in making that decision. By contrast, the APA has no

such discretion: its job is to investigate, report, and rec-

ommend, and it is this state-created expectation that gives

rise to Woodard’s Fourteenth Amendment interest. Contrary

to the Sixth Circuit's view in this case, it is simply not true

that the "only thing that counts is that there are ‘no stand-

ards governing the [final decisionmaker’s] exercise of his

discretion."" 107 F.3d at 1185, quoting Olim v. Wakine-

kona, 461 U.S. at 249-50.

Moreover, the state is simply wrong in contending that

Ohio’s statutory guarantees are "merely procedural" in the

same sense that Hawaii’s guarantee of a hearing prior to a

discretionary transfer was procedural in Olim. As Justice

Scalia has observed, “except at the extremes, the terms ‘sub-

stance’ and ‘procedure’ precisely describe very little except

a dichotomy, and what they mean in a particular context is

largely determined by the purposes for which the dichotomy

is drawn." Sun Oil Co. v. Wortman, 486 U.S. 717, 726

(1988). Within the context of discerning a state-created lib-

erty interest, the purpose of the substance-procedure dichot-

omy is to distinguish between rights that are truly significant

to the individual and those that are relatively less important.

Sandin v. Conner, 515 U.S. _, _, 115 S.Ct. 2293, 2300

(1995)(state-created liberty interests are generally limited to

freedom from deprivations that impose “atypical and signifi-

cant hardship" on the individual). Under any reasonable

definition, Woodard’s interest in receiving the fair clemency

proceedings that Ohio has promised him is an interest of

"real substance." /d. at 2297, quoting Wolff v. McDonnell,

418 U.S. 539, 557 (1974).

Ohio law mandates that the APA conduct a thorough in-

15

vestigation of Woodard’s clemency petition, and that it re-

port on that application and make a recommendation to the

governor on whether to spare Woodard’s life. Especially

when viewed in light of Ohio’s history of regularly com-

muting the sentences of many on death row, these guaran-

tees represent a substantial benefit to Woodard that fall

squarely on the "substance" side of the dichotomy. See Del

A. v. Roemer, 777 F.Supp 1297, 1321 (E.D. La.1991)(state

requirement of mandatory investigation of abuse charges is a

substantive benefit which gives rise to interest protected by

procedural due process for children who are the objects of

abuse).

The APA’s clemency procedures prevent Woodard from

contributing information vital to the complex balancing of

factors that is required of the clemency decisionmaker, obvi-

ously decreasing his chances of receiving clemency. The

state’s contention that it has taken nothing of importance

away from Woodard is belied by Ohio’s statutes and consti-

tution, the rulings of the Ohio Supreme Court, and the inte-

gral role that clemency has historically played in Ohio’s im-

position of the death penalty.

Il. OUR NATION’S HISTORY, LEGAL TRADI-

TIONS, AND PRACTICES DEMONSTRATE

THAT RESPONDENT HAS A SUBSTANTIVE

DUE PROCESS RIGHT TO PURSUE CLEM-

ENCY, ARISING FROM THE FOURTEENTH

AMENDMENT ITSELF, WHICH MANDATES

RUDIMENTARY FAIRNESS IN THE CLEM-

ENCY PROCESS

The Sixth Circuit in Woodard, relying on Evitts v.

Lucey, 469 U.S. 387 (1985), recognized a due process right

arising directly from the Fourteenth Amendment based on

the "integral role" of clemency in Ohio’s system of justice.

16

Because amici agree with the reasoning of the Sixth Circuit

on this point, we will not rehash that thoughtful opinion

here.'? Instead, amici urge the Court to consider an addi-

tional, compelling basis for finding that the APA’s clemency

procedures deprived Woodard of a liberty interest arising di-

rectly out of the Due Process Clause. The unwavering his-

tory, legal traditions, and practice of this country establish

that capital defendants have a substantive due process right

to have access to clemency, and to be given meaningful

consideration of their application prior to execution. This

right in turn triggers the procedural protections of the Four-

teenth Amendment that were violated in Woodard’s case.

Woodard’s claim is that Ohio has effectively denied

him access to clemency by: (1) creating a procedure that

does not allow him to have counsel present at his interview

(a right afforded by the majority of states that impose the

death penalty, see Brief of Respondent and statutes cited

therein); (2) prohibiting him from presenting evidence in

'? Under the reasoning of Evitts, Ohio is not free to rely on the clemen-

cy process as an important part of its procedure for choosing between

the punishment of life or death, and then to conduct that process without

regard to fundamental fairness. Once a state has chosen a constitutional-

ly valid approach to capital punishment, “it must stick to the script.”

Fetterly v. Paskett, 15 F.3d 1472, 1483 (9th Cir.), cert. denied, 513 U.S.

914 (1994). The state seeks to evade the holding in Evitts by asserting

that clemency, unlike the discretionary appeal that triggered due process

in Evitts, is not part of the "system for finally adjudicating the guilt or

innocence of the defendant" -- clemency exists "in spite” of the defen-

dant’s guilt or innocence. Petitioner's Brief at pp.20-21. However, such

an attempt to portray clemency as being outside of the capital punish-

ment process contradicts this Court’s recognition in Herrera that clemen-

cy has long served as the remedy “for claims of innocence based on new

evidence, discovered too late in the day to file a new trial motion.”

Herrera, 506 U.S. at 417 (emphasis added).

17

support of clemency (the vast majority of death penalty

states permit the introduction of evidence by the applicant,

id.); (3) forcing him to choose between pursuing clemency

and continuing to contest his conviction in the courts; and

(4) prohibiting him from reapplying for clemency without

leave of the APA (no other capital punishment state prohib-

its death row inmates from applying for clemency, id.).

When considering the existence of a substantive due

process right, this Court has instructed that we begin by "ex-

amining our Nation’s history, legal traditions, and practices."

Washington v. Glucksberg, __ U.S. __, __, 117 S.Ct. 2258,

2262 (1997). Here, the teaching of history is clear -- clem-

ency has always been considered an indispensable part of

the death penalty process in this country.

Indeed, the broadly held view of clemency as an essen-

tial fail safe led the framers to include an explicit reference

to clemency in the United States Constitution despite the no-

tion of authorities like Blackstone, who believed that the

pardoning power could not exist in democracies. 4

WILLIAM BLACKSTONE, COMMENTARIES *390 (asserting that

the clemency power can never exist in democracies because

in such a system, "nothing higher is acknowledged than the

magistrate who administers the laws"). Alexander Hamilton,

among others, argued that it was necessary to repose the

clemency power in the president in the interests ot "[h]u-

manity and good public policy." THE FEDERALIST No. 74,

at 447 (A. Hamilton)(C. Rossiter, ed. 1961).

Throughout history, the states have also found clemency

to be an essential part of their respective systems of justice.

In Herrera v. Collins, 506 U.S. at 414, Chief Justice Rehn-

quist observed that clemency has been available in America

since the founding of the British colonies and that today,

every state that authorizes capital punishment has constitu-

18

tional or statutory provisions for clemency.’ As the Court

has noted, the most reliable indication of a national consen-

sus regarding a practice is the pattern of enacted laws.

Stanford v. Kentucky, 492 U.S. 361, 373 (1989).

This history, moreover, reflects more than tradition.

Because criminal justice systems are inevitably fallible,

clemency functions as a necessary fail safe intended to pre-

vent the execution of the innocent. Jd at 415. The Court

in Herrera noted that "history is replete with examples of

wrongfully convicted persons who have been pardoned in

the wake of after-discovered evidence establishing their

innocence." Jd Justices Stewart, Powell, and Stevens ac-

knowledged this essential function of clemency when they

observed that a criminal justice system which provided for

capital punishment without also including access to clemen-

cy “would be totally alien to our notions of criminal jus-

tice." Gregg v. Georgia, 428 U.S. 123, 199 n.50 (1976)

(Stewart, Powell, and Stevens, JJ.).'*

Woodard’s claim that before he may be executed he is

entitled to have a realistic chance to apply for clemency and

'? In context, the statement in Herrera that the Constitution does not “re-

quire the States to enact a clemency mechanism,” 506 U.S. at 414, ap-

pears merely to describe the scope of the presidential clemency provi-

sions in Article II. The Court in Herrera did not engage in any substan-

tive due process analysis or otherwise consider whether clemency was

required in capital cases under the Fourteenth Amendment's Due Process

Clause. Indeed, the exposition of clemency law included in Herrera

leads to the opposite conclusion.

‘* The importance of clemency as a "fail safe,” especially in capital

cases, has become even more critical given recently enacted congression-

al restrictions on habeas corpus. See, eg., Felker v. Turpin, 518 U.S.

__, 116 S.Ct. 2333 (1996).

19

to be given meaningful consideration thus falls squarely

within the protections accorded by the Fourteenth Amend-

ment. The constitutional interest he asserts is protected by

the substantive provisions of the Due Process Clause be-

cause it is derived from considerations deeply rooted in

"reason," “the judicial process," and "the compelling tradi-

tions of the legal profession." Rochin v. California, 342

U.S. 165, 170-71 (1952). The notion that Ohio could im-

pose capital punishment without providing a meaningful

mechanism for clemency -- something that has never been

done in our country’s history -- surely violates "‘principles

of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.’" Palko v. Connecti-

cut, 302 U.S. at 325, quoting Snyder v. Massachusetts, 291

U.S. 97, 105 (1934). Yet, this is precisely what the state

seeks to do by forcing Woodard to participate in a clemency

process that is little more than a "meaningless ritual.”

Douglas v. California, 372 U.S. 353, 358 (1963)(due proc-

ess requires more than simply allowing defendant to partici-

pate in meaningless ritual); see also Santosky v. Kramer,

455 U.S. 745, 753-54 (1982)(fundamental liberty interest of

natural parents in the care, custody, and management of

child may not be terminated by state absent compliance with

fair procedures).

This Court has stressed that it will exercise utmost care

when considering whether to “break new ground in [the]

field’ of substantive due process." Albright v. Oliver, 510

U.S. 266, 287 (1994)(Souter, J., concurring), quoting Col-

lins v. Harker Heights, 503 U.S. 115, 125 (1992). How-

ever, recognition of the right of death-sentenced individuals

to have access to clemency and to receive meaningful con-

sideration of their request is vital if clemency is to continue

to fulfill its historical role as a fail safe in our system of

capital justice. Ford v. Wainwright, 477 U.S. 399 (1986), in

which the Court struck down Florida’s procedures for pre-

20

venting the execution of insane individuals, is instructive of

why Ohio’s procedures for determining whether to remit the

death sentence through clemency are constitutionally in-

adequate:

In all other proceedings leading to the execu-

tion of an accused, we have said that the fact-

finder must “have before it ail possible relevant

information about the individual defendant

whose fate it must determine." Jurek v. Texas,

428 U.S. 262, 276 (1976)(plurality opinion).

And we have forbidden States to limit the capi-

tal defendant’s submission of relevant evidence

in mitigation of the sentence. Skipper v. South

Carolina, 476 U.S. 1, 8 (1986); Lockett v.

Ohio, 438 U.S. 586, 604 (1978)(joint opinion).

It would be odd were we now to abandon our

insistence upon unfettered presentation of rele-

vant information, before the final fact antece-

dent to execution has been found.

Rather, consistent with the heightened concern

for fairness and accuracy that has characterized

our review of the process requisite to the tak-

ing of a human life, we believe that any proce-

dure that precludes the prisoner or his counsel

from presenting material relevant to his sanity

or bars consideration of that material by the

factfinder is necessarily inadequate.

Id. at 413-14.

By the same reasoning, a state’s adoption of a capital

clemency procedure that encourages arbitrariness is incon-

sistent with the heightened concerns for fairness and accura-

cy which have long characterized this Court’s review of the

capital punishment process. Woodson v. North Carolina.

428 U.S. 280, 305 (1976)(opinion of Stewart, Powell, and

21

Stevens, JJ.)(special concern for fairness and accuracy con-

sequence of knowledge that capital punishment is uniquely

irremediable). It would be anomalous to suppose that the

state must be scrupulously fair in its procedures for finally

determining whether a condemned prisoner is sane, but can

nevertheless utilize a wholly capricious procedure when a

capital prisoner seeks to avail himself of the “traditional

remedy for claims of innocence based on new evidence."

Herrera v. Collins, 506 U.S. at 417."

'S The need for judicial guidance in the setting of constitutional proce-

dural standards for capital clemency is also apparent from troubling de-

cisions arising in other jurisdictions. For example, in Woratzeck v. Ari-

zona Bd. of Executive Clemency, 117 F.3d 400 (9th Cir. 1997), the court

ultimately upheld Arizona’s capital clemency procedure whereby former

attorneys for the inmate "switched sides" and prepared briefs, witnesses,

and evidence on behalf of the state, opposing the prisoner’s request for

executive clemency. While terming Arizona’s procedure “unfortunate

and inexcusable,” the court denied the inmate’s due process claim, con-

cluding that this clemency process did not "shock the conscience." /d at

404. In Otey v. Stenberg, 34 F.3d 635, 639 (8th Cir. 1994), a panel of

the Eighth Circuit, by a two-to-one vote, upheld Nebraska’s capital

clemency process whereby the deciding vote against commutation was

cast by the Attorney General who had “acted as the chief prosecuting of-

ficial in [the] case, and whose assistants represented the state at the

clemency proceedings." One jurist was so disturbed by the serious ques-

tions about fundamental fairness in capital clemency proceedings raised

by Otey and similar cases that he was moved to remark, "I am troubled

by the state of the law in this field and look forward to possible

changes." Wainwright v. Brownlee, 103 F.3d 708, 710 (8th Cir. 1997)

(Henley, Senior C.J., concurring).

It is evident from these cases, and from Ohio’s defense of its clemen-

cy procedure as immune from any federal constitutional scrutiny that,

absent the promulgation of basic procedural standards by this Court,

clemency can no longer be relied on to fulfill its historical role in state

schemes of capital punishment.

22

As this Court has recognized, clemency is no longer an

arbitrary act of mercy bestowed on the condemned by a be-

neficent executive. Justice Holmes, speaking of the presi-

dent’s clemency power, noted that "[a] pardon in our days is

not a private act of grace from an individual happening to

possess power. It is a part of the constitutional scheme."

Biddle v. Perovich, 274 U.S. 480, 486 (1927); see also

Roberts v. Louisiana, 428 U.S. 325, 350 (1976)(White, J.,

dissenting)("The country’s experience with the commutation

power does not suggest that it is a senseless lottery, that it

operates in an arbitrary or discriminatory manner"). The

APA cannot arbitrarily prevent Woodard’s access to this

vital part of the constitutional scheme or deprive him of the

thorough investigation and recommendation mandated by

Ohio law.

23

CONCLUSION

For the reasons stated above, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

Daniel T. Kobil

(Counsel of Record)

Capital University Law School

303 East Broad Street

Columbus, Ohio 43215

(614) 236-6675

Steven R. Shapiro

American Civil Liberties Union

125 Broad Street

New York, New York 10004

(212) 549-2500

Diann Y. Rust-Tierney

American Civil Liberties Union

122 Maryland Avenue, N.E

Washington, D.C. 20002

(202) 544-1681

Joan M. Englund

ACLU of Ohio Foundation, Inc

1266 West Sixth Street

Cleveland, Ohio 44113

(216) 781-6276

Dated: October 10, 1997

24