On Monday afternoon, before the Pennsylvania Board of Pardons in Harrisburg, lawyers for a man named Terrance Williams will attempt to convince state officials that his life should be spared– that instead of being executed by lethal injection on October 3rd Williams (shown at left) should instead be permitted to spend the rest of his life in prison without the possibility of parole. Despite the deadly violence of Williams’ crime, despite no questions about his guilt, it’s an unusually compelling clemency request– and because of its timing, in the midst of two local sex abuse scandals, a vivid test of the nature of Pennsylvania’s clemency process itself.

Williams’ lawyers will make their case to five officials who will then make a recommendation to Pennsylvania Gov. Tom Corbett, a Republican, who signed Williams’ death warrant on August 8th. The vote of the Board of Pardons must be unanimous in Williams’ favor and, even then, under state law, Gov. Corbett is free to disregard it and push on with the execution. It would be the first contested execution in the state in nearly half a century (three executions between now and then occurred when the defendants in the cases all agreed to waive their appeals). And it’s clear that the governor will be a tough sell.

This is so despite the fact that the widow of Williams’ victim now believes that his sentence should be commuted to life. It is so despite the fact that eight former judges — federal and state — now believe his trial was unjust. It is so despite the pleas of 28 former prosecutors — federal, state and local — who have gone on the record saying that justice would be served by clemency. It is so despite the fact that five of Williams’ trial jurors have come forward and declared, under oath, that they never would have recommended a death sentence for him had they known of material facts his defense attorneys did not introduce at trial.

At its core, clemency is an act of mercy, an official acknowledgment that justice will be best served in a particular instance by the granting of relief to someone who is not, technically speaking, entitled to it. There are many legitimate legal reasons why Williams ought to be given a new trial– just yesterday a state judge agreed to hear more about the new evidence in the case– but clemency is not about law. It’s about equity. It’s about the power of the state to put to right an unjust result. Below are some of the facts that were not introduced at Williams’ long-ago murder trial. Judge for yourself whether he deserves to die at the hands of the state.

AN HORRIFIC LIFE

Terry Williams never really had a chance. From a young age onward, he remembers being beaten by his own mother, who used “belts, fists, extension cords switches or anything that she could get her hands on,” according to the clemency petition which is the subject of Monday’s hearing. When he was six, the testimony goes, he was sexually assaulted by an older boy in the neighborhood, coming home one day bleeding from his rectum. His mother did nothing in response — except ultimately beat him some more. In private. In public. In school. At home. It didn’t matter.

When Williams was 10 years old, he later told doctors, things got even worse. His mother married a man who beat her, and who was beaten by her, and who also beat Williams. Rage, and submissiveness, were everywhere in the preteen’s life. When Williams went to middle school, at the age of 13, he was reportedly raped by one of his teachers, not once but over and over again, the predator plying his prey with all sorts of gifts to lure him in. Predictably, as he got older, and without anything remotely akin to a safety net, Williams fell apart. He drank and abused drugs and mutilated himself, all as a way of crying out.

When he was 16, Williams got in trouble with the law. He committed crimes, some of them serious. When he was sent to a juvenile facility, he says he was raped by two older males– an event so common in our criminal justice system that it beggars belief (Lovisa Stannow and others have written, bravely, about this topic). No one came to rescue Williams during those awful years. No one came to help him. And as he got older, as the physical and emotional damage inflicted upon him grew, his fear became profound. And that fear turned into anger. He was, you could say, a coiled spring.

CLEMENCY

The right of the executive to grant clemency, to pardon an individual convicted of a crime or to grant amnesty, is at least a few thousand years old and likely much older. The ancient Egyptians practiced it. So did the ancient Greeks (the word amnesty, for example, comes from the Greek word amnestia, which means “forgetfulness). The Romans, too; Pontius Pilate changed the course of human history by pardoning Barabbas and not Jesus. In Britain, clemency was a feature of royal rule as early as the 14th Century, although for a few hundred years afterward the King had to share that right with the Church.

And all of this history was funneled into the American constitution, the power of pardons being made an express power of the president. Article II, Section 2 of the Constitution grants the president the power to “grant reprieves and pardons for offenses against the United States, except in case of impeachment.” Because criminal law is typically state law, state executives also have carved out for themselves the power to grant pardons or clemency. This power varies from state to state and the exercise of it has, from time to time, generated challenges that have reach the United States Supreme Court.

The power of clemency is most profound in capital cases, of course, because it can literally mean the difference between life and death. Since the Supreme Court reinstated the death penalty in 1976 in Gregg v. Georgia, the Death Penalty Information Center reports that 272 capital prisoners have been granted clemency. Illinois accounts for 187 of these case– all in the past decade, all because of the institutional flaws in that state’s capital punishment scheme. But otherwise capital clemency is rare and, in some states, like Texas now and during the George W. Bush/Alberto Gonzales era, an absolute disgrace.

CRIME AND PUNISHMENT

When he was 17, Terry Williams snapped. On January 26, 1984, when a man named Herbert Hamilton tried to sexually assault him, when the older man plied the teenager with gifts and then tried to rape him, Williams finally fought back. Hamilton stabbed Williams. Williams stabbed back, 20 times the autopsy revealed, until and after Hamilton was dead. Prosecutors portrayed the crime as a homosexual love affair gone wrong. In 1985, a jury convicted Williams of third-degree murder and a judge sentenced him to 10 to 20 years in state prison.

While Williams isn’t on death row today because of the Hamilton case that case is instructive in establishing a pattern of behavior on the part of Williams during that period in his life. A few months after Williams murdered Hamilton, a few months after the young man turned 18, he murdered another sexual predator, another one of the reported child rapists into whose realm he had wandered, another man who he says had violently assaulted him, a man named Amos Norwood, leader of the acolytes at St. Luke’s Episcopal Church in Philadelphia.

Norwood plied Wiliams the same way the others had. The more violent the sexual predator became during his repeated rapes the more money he would give Williams. On June 10, 1984, Norwood took Williams to an unlit parking lot and raped him until he bled. The next day, June 11, 1984, Williams brutally murdered Norwood with a tire iron, the culmination of an attack Williams’ doctor later attributed to his years of abuse. This time, following a brief 1986 trial, a jury convicted Williams of first-degree murder. This time, he was sentenced to death.

CLEMENCY IN ACTION

Clemency has never been a static concept. Over the years, over the centuries, it has evolved, or devolved, depending upon the prevailing political and moral winds. It’s never been easy for convicted prisoners to get a break from the head of state but it’s never been designed to be. The critics who say that clemency is arbitrary and capricious are both absolutely correct and missing the point. The best people like Williams’ can hope for, when they throw themselves on the mercy of the politicians and bureaucrats, is an honest review of the evidence and a level of compassion that isn’t supposed to surface anywhere else in the justice system.

Pennsylvania has tinkered with its clemency processes. The latest big shift occurred in 1997 when voters amended the state constitution to require the vote of the Board of Pardons to be unanimous in cases involving clemency requests for prisoners sentenced to death or life in prison. Prior to 1997, the rule required a simple majority and, after a series of  commuted prisoners committed violent crimes, the unanimity requirement was added. It makes it that much more difficult for prisoners like Williams to get the recommendation they need from the Board — and that much easier for a sitting governor to avoid having to make the call.

In their petition, Williams attorneys cite five recent examples — from Ohio, Delaware, Tennessee and Oklahoma — where governors have granted a measure of clemency in capital cases where the defendant had brutally murdered a victim after being physically abused as a child or young adult. A trend? Maybe yes and maybe no. What these other governors did is not binding on Gov. Corbett. But none of those other cases contained the breadth or depth of pleas for clemency seen in the Williams’ case. So far, as far as I can tell, no one has stood up in the clemency process and proclaimed that Williams still deserves to die.

TRIAL AND ERROR

Williams’ guilt was never in doubt. But his trial was nevertheless wracked by misfeasance and malfeasance. By failing to introduce at the penalty phase of Williams’ trial all the obvious mitigating evidence above, by failing even to adequately investigate the matter, Williams’ trial attorneys gave him “ineffective assistance” of counsel. And, by cutting a deal with Williams’ friend, a young man named Marc Draper who took part in the Norwood murder, prosecutors enabled the lies Draper would tell at trial. The lies, incidentally, that he has now renounced (and which are now the subject of next Thursday’s court hearing).

At trial, and afterward, prosecutors portrayed Williams as a serial criminal who transposed his violent crimes with the appearance of being a well-adjusted teenager. Prosecutors cited the reports of doctors who purportedly “examined” Williams in 1983 and 1984, in the months before he committed the Norwood murder. None of those doctors spent any significant time reviewing Williams’ record or interviewing Williams himself, however, and earlier this year, one of them recanted his original diagnosis, confessing that he and his colleagues routinely rushed through such examinations to minimize the “backlog” of pending cases.

And what have the state and federal courts said about such shoddy work? The recanting witnesses. The negligent representation. The faulty medical evaluations. For the most part, the judges who have reviewed this case agree that Terrance Williams did not get a fair trial. But so far they also have agreed that it wouldn’t have mattered even if he had. The standard for a new trial in these circumstances is that new evidence would have altered the outcome of the trial — that the jury would have reached a different conclusion had it known the true facts. This is the institutional injustice of modern capital litigation. Will Pennsylvania make it right?

THE PLEA FOR MERCY 

Whether or not she knew at that time what her husband was, Norwood’s widow now wants no further killing. She argues that Williams is “worthy of forgiveness” and has signed onto the defense request for clemency. It is unclear how state lawyers have reacted to Mamie Norwood’s request (the state’s response to a clemency request is not provided to defense attorneys). But whatever else it does, it undercuts the traditional argument offered by prosecutors when they seek to justify the results of an unfair capital trial — that the state is there to protect the rights and interests of the family members of the victim.

Nor can the state plausibly argue today that evidence of the abuse Williams suffered wouldn’t have made a difference to the jury. Five jurors have come forward to say that the errors made by the defense very definitively would have made a difference. And no fewer than three jurors even said they would have voted for life imprisonment had they known it meant without the possibility of parole. Pennsylvania evidently is the last state which does not require trial judges to tell jurors the truth about the lack of parole for capital life sentences. Respecting the jury’s work is another traditional argument against clemency. Here, it cuts the other way.

Another argument prosecutors ceaselessly pitch is the one about retributive justice — that society has an interest in ensuring that criminals get what they deserve. But what, exactly, does Terrance Williams deserve after suffering for all those years before taking Hamilton and Norwood off the streets? This July, Gov. Corbett praised investigators in the Sandusky case “who have worked very hard to get the result — that justice was served and a monster was taken off the street.” With the stroke of a pen, Pennsylvania’s governor can do what no one before has ever really done for Williams — show him some tender mercy.

THE POLITICS OF THE MATTER

The Board of Pardons is a political institution, not a legal one. It is made up of the Attorney General Linda Kelly, who is the state’s highest law enforcement officer, Lt. Governor Jim Cawley, who isn’t likely to buck his boss, a “corrections expert,” a “victim representative” and a psychologist. These folks, and perhaps Gov. Corbett, will have to confront this particular case at a particularly sensitive time in the state’s history, a moment when two of the most cherished institutions around — the Catholic Church and Penn State University — are themselves struggling to cope with sexual abuse allegations, new and old.

The Williams’ case comes across Gov. Corbett’s desk right in the middle of Pennsylvania’s torturous acknowledgment of the deeds of Jerry Sandusky, the former Penn State coach convicted of child rape in June. There is no escaping the links between the two stories. The outpouring of sympathy and grief for Sandusky’s many victims, including public comments from Gov. Corbett and Attorney General Kelly, surely animates some of the support Williams recently has received. And it surely raises the question, pondered aloud by the governor, of how difficult it is for these poor victims to step forward from the darkness.

The Williams’ clemency also comes just a few months after Monsignor William J. Lynn, of Pennsylvania, was found guilty of child endangerment for shielding predatory priests from the law. The Catholic Church, short on irony and long opposed to capital punishment, has been a vocal supporter of Terrance Williams’ cause. So have law professors and the medical community. Whether all of this support will be enough is a question now in the hands of five Pennsylvanians who must speak for the rest of the state. What’s the point of clemency itself if not for people like Terrance Williams? Maybe they’ll answer that question, too.