Lead Opinion
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, and an opinion with respect to Part II in which Justice Scalia, Justice Kennedy, and Justice Thomas join.
This ease requires us to resolve two inquiries as to constitutional limitations on state clemency proceedings. The
We reaffirm our holding in Dumschat, supra, that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Id., at 464 (footnote omitted). The Due Process Clause is not violated where, as here, the procedures in question do no more than confirm that the clemency and pardon powers are committed, as is our tradition, to the authority of the executive.
I
The Ohio Constitution gives the Governor the power to grant clemency upon such conditions as he thinks proper. Ohio Const., Art. III, § 2. The Ohio General Assembly cannot curtail this discretionary decisionmaking power, but it may regulate the application and investigation process. State v. Sheward,
In the case of an inmate under death sentence, the Authority must conduct a clemency hearing within 45 days of the scheduled date of execution. Prior to the hearing, the inmate may request an interview with one or more parole
Respondent Eugene Woodard was sentenced to death for aggravated murder committed in the course of a carjacking. His conviction and sentence were affirmed on appeal, State v. Woodard,
Respondent did not request an interview. Instead, he objected to the short notice of the interview and requested assurances that counsel could attend and participate in the interview and hearing. When the Authority failed to respond to these requests, respondent filed suit in United States District Court on September 14, alleging under Rev. Stat. § 1979, 42 U. S. C. § 1983, that Ohio’s clemency process violated his Fourteenth Amendment right to due process and his Fifth Amendment right to remain silent.
The District Court granted the State’s motion for judgment on the pleadings. The Court of Appeals for the Sixth Circuit affirmed in part and reversed in part.
The Court of Appeals further concluded that there was no state-created life or liberty interest in clemency. Id., at 1184-1185. Since the Governor retains complete discretion to make the final decision, and the Authority’s recommendation is purely advisory, the State has not created a protected interest. Olim v. Wakinekona,
The Court of Appeals went on to consider, however, a “second strand” of due process analysis centered on “the role of clemency in the entire punitive scheme.”
Due process thus protected respondent’s “original” life and liberty interests that he possessed before trial at each proceeding. But the amount of process due was in proportion tó the degree to which the stage was an “integral part” of the trial process. Clemency, while not required by the Due Process Clause, was a significant, traditionally available remedy for preventing miscarriages of justice when judicial process was exhausted. It therefore came within the Evitts framework as an “integral part” of the adjudicatory system. However, since clemency was far removed from trial, the process due could be minimal. The Court did not itself decide what that process should be, but remanded to the District Court for that purpose.
The dissenting judge would have affirmed the District Court’s judgment. Id., at 1194. He agreed with the majority’s determination that there was no protected interest under Dwmschat But he thought that the majority’s finding of a due process interest under Evitts, supra, was necessarily inconsistent with the holding and rationale of Dumschat. Evitts did not purport to overrule Dumschat. He also concluded that respondent’s Fifth Amendment claim was too speculative, given the voluntary nature of the clemency interview We granted certiorari,
II
Respondent argues first, in disagreement with the Court of Appeals, that there is a life interest in clemency broader in scope than the “original” life interest adjudicated at trial and sentencing. Ford v. Wainwright,
In Dumschat, an inmate claimed Connecticut’s clemency procedure violated due process because the Connecticut Board of Pardons failed to provide an explanation for its denial of his commutation application. The Court held that “an inmate has ‘no constitutional or inherent right’ to commutation of his sentence.”
Respondent’s claim of a broader due process interest in Ohio’s clemency proceedings is barred by Dumschat. The process respondent seeks would be inconsistent with the heart of executive clemency, which is to grant clemency as a
The reasoning of Dumschat did not depend on the fact that it was not a capital case. The distinctions accorded a life interest to which respondent and the dissent point, post, at 291-292, 293-295, are primarily relevant to trial. And this Court has generally rejected attempts to expand any distinctions further. See, e. g., Murray v. Giarratano,
Respondent also asserts that, as in Greenholtz, Ohio has created protected interests by establishing mandatory clemency application and review procedures. In Greenholtz, supra, at 11-12, the Court held that the expectancy of release on parole created by the mandatory language of the Nebraska statute was entitled to some measure of constitutional protection.
Ohio’s clemency procedures do not violate due process. Despite the Authority’s mandatory procedures, the ultimate decisionmaker, the Governor, retains broad discretion. Under any analysis, the Governor’s executive discretion need not be fettered by the types of procedural protections sought by respondent. See Greenholtz, supra, at 12-16 (recognizing the Nebraska parole statute created a protected liberty
Respondent also relies on the “second strand” of due process analysis adopted by the Court of Appeals. He claims that under the rationale of Evitts v. Lucey,
In Evitts, the Court held that there is a constitutional right to effective assistance of counsel on a first appeal as of right. Id., at 396. This holding, however, was expressly based on the combination of two lines of prior decisions. One line of cases held that the Fourteenth Amendment guarantees a criminal defendant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal adequate and effective, including the right to counsel. See Griffin v. Illinois,
The Court did not thereby purport to create a new “strand” of due process analysis. And it did not rely on the notion of a continuum of due process rights. Instead, the Court evaluated the function and significance of a first appeal as of right, in light of prior cases. Related decisions similarly make clear that there is no continuum requiring varying levels of process at every conceivable phase of the criminal system. See, e. g., Giarratano,
An examination of the function and significance of the discretionary clemency decision at issue here readily shows it is far different from the first appeal of right at issue in Evitts. Clemency proceedings are not part of the trial — or even of the adjudicatory process. They do not determine the guilt or innocence of the defendant, and are not intended primarily to enhance the reliability of the trial process. They are conducted by the executive branch, independent of direct appeal and collateral relief proceedings. Greenholtz,
Thus, clemency proceedings are not “‘an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,’” Evitts, supra, at 393 (quoting Griffin v. Illinois, supra, at 18). Procedures mandated under the Due Process Clause should be consistent with the nature of the governmental power being invoked. Here, the executive’s clemency authority would cease to be a matter of grace committed to the executive authority if it were constrained by the sort of procedural requirements that respondent urges. Respondent is already under a sentence of death, determined to have been lawfully imposed. If clemency is granted, he obtains a benefit; if it is denied, he is no worse off than he was before.
Ill
Respondent also presses on us the Court of Appeals’ eon-elusion that the provision of a voluntary inmate interview, without the benefit of counsel or a grant of immunity for any statements made by the inmate, implicates the inmate’s Fifth and Fourteenth Amendment right not to incriminate himself. Because there is only one guaranteed clemency review, respondent asserts, his decision to participate is not truly voluntary. And in the interview he may be forced to answer questions; or, if he remains silent, his silence may be used against him. Respondent further asserts there is a substantial risk of incrimination since posteonvietion proceedings are in progress and since he could potentially incriminate himself on other crimes. Respondent therefore concludes that the interview unconstitutionally conditions his assertion
The Fifth Amendment protects against compelled self-incrimination. See Baxter v. Palmigiano,
“Nothing in the procedure grants clemency applicants immunity for what they might say or makes the interview in any way confidential. Ohio has permissibly chosen not to allow the inmate to .say one thing in the interview and another in a habeas petition, and no amount of discovery will alter this feature of the procedure.” Reply Brief for Petitioners 6.
Assuming also that the Authority will draw ¿dverse inferences from respondent’s refusal to answer questions — which it may do in a civil proceeding without offending the Fifth Amendment, Palmigiano, supra, at 316-318 — we do not think that respondent’s testimony at a clemency interview would be “compelled” within the meaning of the Fifth Amendment. It is difficult to see how a voluntary interview could “compel” respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none of which has ever been held to violate the Fifth Amendment.
Long ago we held that a defendant who took the stand in his own defense could not claim the privilege against self-incrimination when the prosecution sought to cross-examine
In Williams v. Florida,
“Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State’s control and the strength of the State’s ease built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.” Id., at 84-85 (footnote omitted).
Here, respondent has the same choice of providing information to the Authority — at the risk of damaging his ease for
IV
We hold that neither the Due Process Clause nor the Fifth Amendment privilege against self-inerimination is violated by Ohio’s clemency proceedings. The judgment of the Court of Appeals is therefore
Reversed.
Notes
Justice Stevens in dissent says that a defendant would be entitled to raise an equal protection daim in connection with a demeney decision. Post, at 292. But respondent has raised no such daim here, and therefore we have no occasion to decide that question.
Respondent alternatively tries to characterize his claim as a challenge only to the application process conducted by the Authority, and not to the final discretionary decision by the Governor. Brief for Respondent 8. But, respondent still must have a protected life or liberty interest in the
For the same reason, respondent’s reliance on Ford v. Wainwright,
The dissent provides no basis for its assertion that the special considerations afforded a capital defendant’s life interest at the trial stage “apply with special force to the final stage of the decisional process that precedes an official deprivation of life.” Post, at 295. This not only ignores our case law to the contrary, supra, at 281 and this page, but also assumes that executive clemency hearings are part and parcel of the judicial process preceding an execution.
The dissent miseharacterizes the question at issue as a determination to deprive a person of life. Post, at 290. That determination has already been made with all required due process protections.
Concurrence Opinion
with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring in part and concurring in the judgment.
A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect, that interest in the context of Ohio’s clemency procedures. It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” Ford v. Wainwright,
In my view, however, a remand to permit the District Court to address respondent’s specific allegations of due process violations is not required. The Ohio Death Penalty Clemency Procedure provides that, if a stay has not yet issued, the parole board must schedule a clemency hearing 45 days before an execution for a date approximately 21 days in advance of the execution. The board must also advise the prisoner that he is entitled to a prehearing interview with one or more parole board members. Although the Ohio Adult Parole Authority complied with those instructions here, respondent raises several objections to the process afforded him. He contends that 3 days’ notice of his interview and 10 days’ notice of the hearing were inadequate; that he did not have a meaningful opportunity to prepare his clemency application because posteonviction proceedings were pending; that his counsel was improperly excluded from the interview and permitted to participate in the hearing only at the discretion of the parole board chair; and that he was precluded from testifying or submitting documentary evi
Accordingly, I join Parts I and III of the Court’s opinion and concur in the judgment.
Lead Opinion
concurring in part and dissenting in part.
When a parole board conducts a hearing to determine whether the State shall actually execute one of its death row inmates — in other words, whether the State shall deprive that person of life — does it have an obligation to comply with the Due Process Clause of the Fourteenth Amendment? In my judgment, the text of the Clause provides the answer to that question. It expressly provides that no State has the power to “deprive any person of life, liberty, or property, without due process of law.”
Without deciding what “minimal, perhaps even barely perceptible,” procedural safeguards are required in clemency proceedings, the Court of Appeals correctly answered the basic question presented and remanded the case to the District Court to determine whether Ohio’s procedures meet the “minimal” requirements of due process.
I
The text of the Due Process Clause properly directs our attention to state action that may “deprive” a person of life, liberty, or property. When we are evaluating claims that the State has unfairly deprived someone of liberty or property, it is appropriate first to ask whether the state action adversely affected any constitutionally protected interest. Thus, we may conclude, for example, that a prisoner has no “liberty interest” in the place where he is confined, Meachun v. Fano, 427 U. S. 215 (1976), or that an at-will employee has no “property interest” in his job, Bishop v. Wood,
Nor does Connecticut Bd. of Pardons v. Dumschat,
II
There are valid reasons for concluding that even if due process is required in clemency proceedings, only the most basic elements of fair procedure are required. Presumably a State might eliminate this aspect of capital sentencing entirely, and it unquestionably may allow the executive virtually unfettered discretion in determining the merits of appeals for mercy. Nevertheless, there are equally valid reasons for concluding that these proceedings are not entirely exempt from judicial review. I think, for example, that no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency. Our eases also support the conclusion that if a State adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with the Due Process Clause.
Even if a State has no constitutional obligation to grant criminal defendants a right to appeal, when it does establish appellate courts, the procedures employed by those courts must satisfy the Due Process Clause. Evitts v. Lucey,
The interest in life that is at stake in this case warrants even greater protection than the interests in liberty at stake in those cases.
Accordingly, while I join Part III of the Court’s opinion, I cannot accept the reasoning or the conclusion in Part II. Because this ease comes to us in an interlocutory posture, I agree with the Court of Appeals that the case should he remanded to the District Court, “in light of relevant evi-dentiary materials submitted by the parties,”
“Our language in Greenholtz leaves no room for doubt: ‘There is no constitutional or inherent right of a convicted person to be conditionally-released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.”’
While it is true that the constitutional protections in state postconviction proceedings are less stringent than at trial or on direct review, e. g., Pennsylvania v. Finley,
The Court has recognized the integral role that demency proceedings play in the decision whether to deprive a person of life. Herrera v. Collins,