NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.14 Clemency Hearings

In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), the Court held that Ohio’s clemency procedure was constitutional. Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, opined that no due process right exists in the executive’s clemency authority. Justices O’Connor, Souter, Ginsburg, Breyer, and Stevens agreed that minimal due process safeguards apply in clemency hearings. Justice Stevens, who wrote separately, concurred with the Sixth Circuit that the case should be remanded for a hearing on whether petitioner received due process. The Court unanimously agreed that the voluntary interview portion of Ohio’s executive clemency procedure does not violate the Fifth Amendment right against selfincrimination.

In Woratzeck v. Arizona Board of Executive Clemency, 117 F.3d 400 (9th Cir. 1997), the Ninth Circuit held that Arizona clemency laws do not create a constitutionally protected liberty interest. However, the court recognized a limited procedural due process right in the clemency hearing as an integral part of the state’s criminal justice procedure and heard petitioner’s § 1983 cause of action. The court held that due process is violated only when clemency hearing procedures “shock the conscience” and concluded that Woratzeck’s hearing was not constitutionally deficient. The court stated that Woratzeck and his witnesses had opportunity to testify on Woratzeck’s behalf and to expose challenged participation of former defense attorneys now employed as county attorneys.

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (plurality opinion) (holding Ohio’s clemency procedure does not violate due process; conducting voluntary interviews does not violate prisoners’ Fifth Amendment rights).

Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (holding Connecticut’s commutation statute does not create a constitutional liberty interest; nor does the failure to provide plaintiff with a statement of reasons for denying commutation violate his due process rights).

Wilson v. United States Dist. Court for the N. Dist. of Cal. (Siripongs), 161 F.3d 1185 (9th Cir. 1998) (holding, in mandamus action, that district court did not err in granting a TRO based on condemned’s assertion that governor’s failure to notify capital defense counsel regarding scope of issues to be considered in clemency hearing violates due process).

Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (holding claim regarding constitutionality of clemency proceeding not cognizable under AEDPA because there is no constitutional right to clemency).

Woratzeck v. Arizona Bd. of Clemency, 117 F.3d 400 (9th Cir. 1997) (per curiam) (holding Arizona clemency laws do not create a constitutionally protected liberty interest, but defendant has a procedural due process right in the hearing; holding § 1983 proper vehicle for raising due process claim; holding due process violated only if clemency hearing procedures “shock the conscience;” holding that Woratzeck’s hearing not constitutionally deficient).