UNJUST BARGAINS AND INCOMPLETE SOLUTIONS:
APPELLATE WAIVER CONDITIONS IN CAPITAL
COMMUTATIONS
Matthew Gayden*
ABSTRACT
Clemency is often a death-sentenced inmate’s last hope for relief. Without it,
the inmate must either hope for appellate success or, if they have exhausted their
appeals, hope that the justice system will eventually and unexpectedly intervene.
However, even when clemency is granted, the relief that it provides may come
with strings attached.
In some commutations of death sentences to life without parole, these strings have
included a requirement that the recipient waive future appeals and legal challenges.
In such situations, while the commutation saves the recipient’s life, the appellate
waiver condition eliminates any hope of further relief. In doing so, the conditions
present an incomplete solution that overlooks the doubts and uncertainties that pro-
vided the basis for the commutation, prevents these doubts from being further exam-
ined, and takes advantage of the recipients’ dire situation and lack of leverage. As a
result, such conditions cannot be voluntarily accepted, and they do not address the
root of the original conviction, further the public policy justifications for appellate
waivers, or enhance the functioning of the capital punishment system overall.
For these reasons, this Note argues that such appellate waiver conditions in
capital commutations are invalid. Part I provides an overview of executive clem-
ency’s role and breadth and examines two competing approaches to clemency:
individual mercy and public welfare. Part II describes the scope of the condi-
tional commutation power and sets forth the considerations––acceptance, nexus
to public policy, and constitutionality––for evaluating the attached conditions.
Part III asserts that appellate waiver conditions in capital commutations are
unjust and improper due to the inherent coercion of imminent execution and their
contravention of public policy.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
I. THE SCOPE AND PURPOSE OF EXECUTIVE CLEMENCY . . . . . . . . . . . . 369
A. The Broad Role of Executive Clemency . . . . . . . . . . . . . . . . . 370
B. The Competing Approaches to Executive Clemency . . . . . . . . 371
* J. D., Georgetown University Law Center (May 2024); B.A., University of California, Los Angeles (2020). I
would like to extend special thanks to Professor Cliff Sloan, who offered valuable insights throughout the
drafting process and introduced me to this topic and the stories of Joseph Payne and Julius Jones. I would also
like to thank the staff of the American Criminal Law Review for giving me the opportunity to shed light on this
issue and for their exceptional skill and effort in editing this Note. © 2025, Matthew Gayden.
365
II. THE SCOPE OF CONDITIONAL COMMUTATIONS . . . . . . . . . . . . . . . . . 374
A. Federal and State Examples of Conditional Commutations . . . 374
B. The Standard for Evaluating Conditions . . . . . . . . . . . . . . . . 376
C. Individual Mercy’s Role in Evaluating Conditional
Commutations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
III. THE INVALIDITY OF APPELLATE WAIVER CONDITIONS IN CAPITAL
COMMUTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
A. Involuntary Acceptance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
B. Lack of a Nexus to Public Policy . . . . . . . . . . . . . . . . . . . . . . 383
1. Relationship to the Root of the Conviction . . . . . . . . . . . 383
2. Policy Justifications for Appellate Waivers . . . . . . . . . . . 386
a. Finality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
b. Judicial Efficiency. . . . . . . . . . . . . . . . . . . . . . . . . . 389
c. Bargaining Chip . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
3. Functioning of the Capital Punishment System . . . . . . . . 391
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
INTRODUCTION
Joseph Payne has been in prison for more than four decades and will likely
remain there for the rest of his life due to an erroneous death sentence he received
while incarcerated.
1
See John Cloud, Near Death Experience, WASH. CITY PAPER (Dec. 6, 1996), https://washingtoncitypaper.
com/article/285239/near-death-experience/.
1.
Payne was initially imprisoned for a murder he committed
while drunkenly robbing a convenience store.
2
For this crime, he was sentenced to
life with the possibility of parole.
3
Since then, Payne, who endured a difficult child-
hood in foster care and attempted suicide multiple times after the crime,
4
has taken
responsibility for his actions, held a prison job, and had no behavioral issues.
5
Todd C. Peppers, Column, The Death Penalty Was Abolished but Injustice Lingers, RICHMOND TIMES-
DISPATCH (Mar. 21, 2023), https://richmond.com/zzstyling/view-oped-sig/column-the-death-penalty-was-
abolished-but-injustice-lingers/article_607ef634-c663-11ed-a9fd-779ee327a5ea.html.
Yet,
despite this evidence of rehabilitation and the original possibility of parole, Payne
has remained imprisoned, and will continue to remain imprisoned, due to an
unfounded death sentence he received while incarcerated.
Payne received this death sentence in 1986 when he was convicted for the mur-
der by arson of another inmate.
6
This conviction was the result of extremely weak
evidence from the prosecution and poor representation by his defense counsel.
7
See Petition for Executive Clemency of Joseph Patrick Payne, Sr. at 1–2, 10–11, Payne v. Netherland, No.
95-4016, 1996 WL 467642 (4th Cir. Aug. 19, 1996) [hereinafter Clemency Petition] (unpublished table
decision), https://www.capitalclemency.org/file/1_payne_josephsr.pdf; Cloud, supra note 1.
At
his trial, inmate Robert Smith, who was an initial suspect in the murder by arson,
2. Id.
3. Id.
4. Id.
5.
6. Cloud, supra note 1.
7.
366 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:365
