Mercy on Trial: What It Means to Stop an Execution

Chapter 1
MERCY, CLEMENCY, AND CAPITAL PUNISHMENT
THE ILLINOIS STORY
If we simply use the term "mercy" to refer to certain of the demands of justice (e.g., the demand for individuation), then mercy ceases to be an autonomous virtue and instead becomes part of . . . justice. It thus becomes obligatory, and all the talk about gifts, acts of grace, supererogation, and compassion becomes quite beside the point. If, on the other hand, mercy is totally different from justice and actually requires (or permits) that justice sometimes be set aside, it then counsels injustice. In short, mercy is either a vice (injustice) or redundant part of justice.
--Jeffrie Murphy

No one who has never watched the hands of a clock marking the last minutes of a condemned man's existence, knowing that he alone has the temporary Godlike power to stop the clock, can realize the agony of deciding an appeal for executive clemency.
--Michael DiSalle

Death is power's limit, the moment that escapes it.
--Michel Foucault
ON JANUARY 10 AND 11, 2003, Governor George Ryan emptied Illinois's death row. Exercising his clemency powers under the state constitution, he first pardoned 4 and then commuted 167 condemned inmates' sentences in the broadest attack on the death penalty in decades. Ryan's act was a compelling moment in our society's continuing turmoil about crime and punishment, appearing, at first glance, to be a rare display of mercy in distinctly unmerciful times. As a seemingly humane, compassionate gesture in a culture whose attitudes toward punishment emphasize strictness not mercy, severity not forgiveness, it ran against the grain of today's tough-on-crime, law-and-order politics. In the controversy that it occasioned, Ryan's clemency put mercy on trial, forcing us to consider anew when and to whom it should be accorded.
It was, in addition, the single sharpest blow to capital punishment since the U.S. Supreme Court declared it unconstitutional in1972.1 Because Ryan pardoned or commuted the sentences of sadistic rapists and murderers as well as those who seemed more sympathetic candidates for mercy and those whose convictions were questionable, his decision produced an explosive reaction among people who believe that death is both a morally appropriate and necessary punishment. They demonized Ryan and denounced his clemency in the strongest possible terms, claiming that he had dishonored the memory of murder victims, inflicted great pain on their surviving families, made the citizens of Illinois less safe, and abused his power. For opponents of capital punishment, Ryan became an instant hero. His decision, they claimed, would be a signal moment in the evolution of a "new abolitionist" politics.2 They hoped it would mark a turning point on the way toward the demise of state killing.
That Ryan acted with two days left in his term and in the face of vocal opposition from citizens, the surviving families of murder victims, prosecutors, and almost all of Illinois's political establishment only compounded the drama. In addition, and even to many opponents of capital punishment, Ryan's action was a worrying reminder of the virtually unchecked powers of chief executives at the state and federal level to grant clemency. In a society committed to the rule of law, to the idea that all of the government's actions should be governed and disciplined by rules, that all government powers should be checked and balanced, that those who govern always should be accountable for their acts, what Ryan did exposed a gaping hole in the fabric of legality. It seemed to push to, and beyond, the limits of law's ability to regulate executive power, and, like the actions of the president in times of national emergency, hinted at the specter of power out of control, a dangerous, undemocratic, unaccountable power lying dormant and waiting for an occasion to be exercised.3
George Ryan hardly seemed typecast for such a dramatic part in our contemporary history. Prior to becoming governor, Ryan had had a long career in Illinois politics, serving in the state legislature from 1973 to1983, as lieutenant governor from 1983 to 1991, and as secretary of state in 1991. Because Ryan embodied a rather unremarkable combination of familiar midwestern Republican positions--fiscally conservative, moderate in his social views--his 1998 election as governor was barely noticed nationally and greeted with little fanfare locally. This white-haired, sixty-nine-year-old former pharmacist from Kankakee, Illinois, did not fit anyone's stereotype of either demon or hero, much less of the kind of national and international celebrity his clemency decision would make him. Nothing in his personality, or prior political record, suggested he would make much of a splash during his gubernatorial term or become a key national anti-death penalty activist.