When students first enter law school, they learn to read with four highlighters at the ready. Their casebooks are filled with neon rainbows: blue for the case's facts, pink for the reasoning, yellow for the case holding, and green for significant—but secondary—legal pronouncements, known as dicta. Arnold Schwarzenegger's five-page statement denying clemency to Stanley "Tookie" Williams earlier this week could well be included in future criminal-law casebooks and receive the same obsessive-compulsive treatment. Chances are even the most java-jolted law student wouldn't notice it didn't come from a court.
In the world of the televised, the telegenic are kings. Thus Schwarzenegger's first major foray into text merits special attention. Schwarzenegger's statement is probably the single most effective document he has produced in his Sacramento tenure.
The California governor, although armed with a broad and unreviewable power of clemency, took cover under the legal process, with its strict forms and putatively objective methods of reasoning. But here, the judicial form was being used to make judgments that no court can ever undertake. The clemency power is a blank check to governors precisely because they are supposed to take into consideration facts and arguments that courts may not—such as the personal qualities of the petitioner and the effect unfair punishments may have on the public peace. Co-opting the judicial method in order to undertake this fundamentally political task is dangerous because it masks what's really going on: a fundamentally political act. But offering them such cover may, in the end, be the best way to convince governors to consider these questions at all.
To anyone even peripherally aware of the politics of capital punishment, it will come as no surprise that Schwarzenegger's clemency statement sounds and cites just like a court opinion. Since 1978, when the Supreme Court established that juries had a very broad power to impose life terms instead of death sentences, governors have steadily retreated from using their clemency power—to the tune of 87 percent fewer commuted sentences per year, according to Mercy on Trial: What It Means To Stop an Execution, by professor Austin Sarat.
Clemency is designed to be arbitrary, though governors have constrained its use over the years. As Sarat explains, "The clemency power can be used for good reason, bad reason, or no reason at all." Governors, however, have recently tended to use it only when there has been a very good legal reason, in the form of an egregious error in the trial court below, such as lost evidence or a lazy lawyer. More and more, governors see themselves as superappellate courts, presuming the correctness of the legal decisions below and reversing them only in light of what courts call "clear error." Schwarzenegger contributed to this trend earlier this year when he said he would only grant clemency where there had been a "miscarriage of justice." That's a legal notion, not a political one.
Schwarzenegger's written denial of clemency is both surprising and ultimately effective for two reasons: First, it doesn't merely impose a judicial standard for determining Williams' guilt; it also uses judicial language and form, sustained for 1,656 words. President George Bush, while governor of Texas, needed only 214 words to deny Karla Faye Tucker clemency in 1997, when, like Williams, she argued for mercy on the basis of personal redemption. Schwarzenegger's statement, in contrast, works its way patiently through a statement of facts, the procedural background, and each of Williams' claims before addressing the various additional arguments—such as suspicious book dedications to violent criminals—supporting his decision to deny clemency.
The language itself is pitch-perfect in its aping of judicial style. Bush wrote his denial of clemency in the first person ("I will not grant a stay"); Schwarzenegger prefers the judicial third-person omniscient, a passive voice that conveniently denies his own agency ("Williams' request is denied"). Throughout, the statement employs legal phrases. Williams' claim "triggers an inquiry." The fact that he tried to escape from jail is "consistent with guilt." The decision is made (by someone) "based on the totality of the circumstances." Schwarzenegger doesn't just allude to judges and the decisions they have made in this case, he seizes upon that role and makes it his own.
And like some of America's most famous judges, he uses the judicial form to hide a decidedly nonobjective argument. This is the second, and more compelling reason Schwarzenegger's statement worked as well as it did as a final ruling on the merits of Williams' claim. There was, recall, no riot in Los Angeles. There were protests, but not furor. According to the Los Angeles Times, gang members interviewed on the street didn't even mention Williams' name—though he is the fallen Adam to their modern-day Cains.
Indeed, the Bible, and not the law books, is a useful place to start when reading the Schwarzenegger statement for its moral, and even personal, content. The governor's main argument, responding to Williams' primary argument, is that this man had not, in fact, redeemed himself. Without admitting guilt, there was no way he could have. In an austere line, crammed into the middle of a crescendo of a last paragraph, Schwarzenegger writes: "Without an apology and atonement for these senseless and brutal killings there can be no redemption."
The Book of Acts is full of similar mandates. "Therefore repent of this wickedness of yours, and pray to the Lord that the intent of your heart may be forgiven you," says Acts 8:22. Elsewhere, as in I John 1:9, the language is more encouraging, but the mandate just as clear: "If we confess our sins, he is faithful and just to forgive us our sins, and to cleanse us from all unrighteousness." Schwarzenegger's quite religious theory of atonement is the moral and emotional crux of an argument that is styled as dispassionate legal analysis.
In fact passages of this executive opinion can barely contain their disgust for the petitioner. The statement of facts recounts the murders, closing with the haunting image of Williams laughing for six minutes straight when talking about the sound the victim made as he was shot. The statement plays up the racial animosity in the murders, recalling when Williams referred to his Chinese victims as "Buddha-heads." These details aren't necessary to the governor's point, except to set up his unspoken standard—that it's doubtful anyone could have redeemed himself from these crimes. They are designed to provoke outrage, creating the right political atmosphere to allow the state to respond to Williams' barbarism with its own.
The statement further addresses what was thought to be Williams' strongest argument—that he would do more good for society alive than dead. Courts engage in this kind of utility analysis all the time. Some judges, like Richard Posner, celebrate it. But courts never directly address the value of a person. They may do so indirectly—rewarding battered women with a special claim to self-defense when they shoot their no-good abusive husbands, for example—but a court will rarely state, head-on, that a person does or does not have moral worth.
Schwarzenegger does so here by blatantly opining that it's unclear whether Williams actually did any good in the world. Children's books? Mentioned and dismissed. Nobel Peace Prize nominations? Relegated to a footnote that states they have no persuasive weight. Like a punch to the stomach, Schwarzenegger reasons, again in the impersonal third person, "the continued pervasiveness of gang violence leads one to question the efficacy of Williams' message." Williams couldn't stop the war he helped to start, says the governor, and so he must die.
Through clemency, our justice system occasionally redeems itself for mistakes it has made. But it presents a philosophical dilemma: Do we think the individuals it convicts are similarly capable? Because juries cannot revisit cases 20 or 30 years after handing down death sentences, only governors (and the president) are given the power to venture the answers to these questions. By addressing such questions, as a court and not as a king, Schwarzenegger finally gave himself, and maybe other elected leaders, permission to start engaging these issues again, even if they need to don imaginary judicial robes to do so.