I have long opposed capital punishment on both moral and practical grounds.  George W. Bush is not so constrained by moral or practical considerations, though.  As a result, he confuses yet again what is legal and procedural with what is moral and right. 

Bush says he believes it is not the chief executive’s job to second-guess the courts.  Fair enough, but it’s not helpful for him merely to say what he thinks his job is not; he should be thinking about what the chief executive’s role should be in a moral and just society. 

In most capital cases, Bush does in fact do little more than review the facts of the case and affirm the decisions of the courts.  For example: 

In Monday’s announcement of Bush’s decision, press secretary Dana Perino said, "… the president believes the facts of this case leave no doubt that the sentence is just and warranted."  But Bush is not a trier-of-fact. 

In his autobiography (A Charge to Keep, William Morrow & Company, 1999), Bush wrote, “In every [death] case, I would ask, ‘Is there any doubt about this person’s guilt or innocence?  And have the courts had ample opportunity to review all the legal issues in this case?’”  But Bush is not an appellate judge 

In a June 22, 2000 interview on NPR, candidate Bush said, “The only things that I can tell you is that every case I have reviewed I have been comfortable with the innocence or guilt of the person I’ve looked at.  I do not believe we’ve put a guilty … I mean innocent person to death in the state of Texas.”   Yet Bush is clearly no legal scholar. 

Questions of facts, evidence, and procedure are highly relevant but they are not the chief executive’s questions to answer.  Those questions would be answered long before any clemency request reached Bush’s desk.  He adds no value by merely reviewing the facts and endorsing the decisions of the lower courts.  The courts are constrained by law and precedent; the chief executive is not.  Nor should he be. 

The chief executive adds value when he considers not merely what is and what is popular, but what should be and what is right.  Only then does he rise above politics to assume the mantle of leader. 

This is not just my spin on the matter.  As far back as 1855, the US Supreme Court recognized the importance of compassion and mercy in considering clemency petitions [Ex parte Wells, 59 US 18 How. 307 (1855)].  The decision in Wells upheld President Fillmore’s 1852 commutation of William Wells’ death sentence.  Wells was sentenced to be hanged for murder.   

In Wells, the Court cited Chief Justice John Marshall, who wrote in United States vs. Wilson, 7 Pet. 162 (1833), that, "As the power [to grant clemency] has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon …" 

The principles of English law on which our own system is based provided that justice be tempered with mercy; that without the power of executive clemency, government “would be most imperfect and deficient in its political morality.”  King George III understood that intuitively; King George W. still does not get it at all. 

Bush long deflected criticism of his unwillingness to grant clemency in Texas by saying state law does not provide for it.  It’s true that in Texas only the Board of Pardons and Parole can grant clemency (the governor can grant a 30-day reprieve).  But it is also true that the governor appoints the members of that board, and they serve at his pleasure.  In the one case where Governor Bush felt clemency should be granted, it was granted. 

In the case of Pvt. Gray, the New York Times reported on Tuesday that, “Unlike in the civilian courts, where the president can overturn or commute a sentence, in the military system, he is required effectively to approve it.”   

That’s questionable.  Article 71(a) of the Uniform Code of Military Justice provides that, “If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit.  That part of the sentence providing for the death may not be suspended.”   

President Eisenhower authorized the last military execution 51 years ago, in 1957 (the sentence was carried out in 1961).  When President Kennedy faced a similar decision in 1962, however, he commuted the condemned man’s sentence to life in prison.  Bush could have commuted Pvt. Gray’s sentence to life in prison if he had wanted to.   

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