Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: [We'll hear argument] first this morning in Number 96-1769, the Ohio Adult Parole Authority v. Woodard. Mr. Klatt.

MR. KLATT: Mr. Chief Justice, may it please the Court:

This case presents a challenge to Ohio's death penalty clemency procedures under the Due Process Clause of the Fourteenth Amendment and the Self-Incrimination Clause of the Fifth and Fourteenth Amendments.

If I may, I'd like to address the due process challenge first.

Fundamentally, respondent's due process challenge fails for two reasons.

First, he has no constitutional or inherent right to clemency based upon this Court's decision in Connecticut Board of Pardons v. Dumschat.

Second, Ohio's adoption of the clemency power and the procedures associated with it do not create a constitutional entitlement because the Governor's exercise of that power remains wholly discretionary.

JUSTICE SANDRA DAY O?CONNOR: Well, let me ask you something, Mr. Klatt. Suppose that the Governor-- obviously an unlikely scenario, but suppose the Governor of Ohio, some future Governor, decided that he would grant clemency to--he would at least allow clemency hearings and consider clemency for white defendants but not black.

No limit there on a policy like that, would you say, under the Constitution?

MR. KLATT: I believe there would be a limit under that-- JUSTICE O?CONNOR: So what we have to decide--

MR. KLATT: There would be an equal-- JUSTICE O?CONNOR: --is, what are the limits, and how do we draw that line.

MR. KLATT: Yes. JUSTICE O?CONNOR: So you do concede that there would be some equal protection concerns, certainly, constitutionally imposed?

MR. KLATT: Yes, Your Honor, we do concede that, not rational basis equal protection, but certainly a suspect category, perhaps even a substantive due process problem in an outrageous circumstance.

CHIEF JUSTICE REHNQUIST: The court of appeals here, as I understand it, based its ruling on the Due Process Clause, not the Equal Protection Clause, is that correct?

MR. KLATT: That is correct. That is correct.

JUSTICE ANTONIN SCALIA: Well, what -- I don't see--what difference would that make, what clause you're proceeding under?

MR. KLATT: Your Honor, I don't believe it would make a difference in terms of equal protection, rational basis and due process.

I think the analysis would be essentially the same, although for slightly different reasons.

Fundamentally, the Due Process Clause is not violated in this instance because there is no underlying life, liberty, or property interest that's at stake.

That interest has been adequately safeguarded by the substantial protections that exist at the trial court level and certainly throughout the appeals process leading to the final conviction--

JUSTICE RUTH BADER GINSBURG: Mr. Klatt, are you then saying that what--there may be some process due, but whatever process due it has been allowed, or are you--are you taking the position that due process, as distinguished from equal protection, your answer to Justice O'Connor, due process doesn't enter into it?

The examples that, was it Judge Nelson gave, were due process examples. That is, arbitrary decision-making. She gave the example of a coin toss--a coin toss, or picking the straw out.

So are you saying, suppose the parole board said, oh, we have better things to do with our time than read all this stuff, so we're going to toss a coin and every tenth or, say, every tenth applicant will get clemency?

MR. KLATT: Your Honor, our position is that fundamentally, because there is no underlying life, liberty, or property interest, that a Governor could make a clemency decision in an arbitrary manner. It's almost inherent in the concept of unfettered discretion.

I don't think that would happen. There's no reason to believe that a Governor would act any less responsibly than a court would in exercising power, and in fact clemency by constitutional design was meant to be an unfettered power of the executive branch as a check on the judicial branch, so fundamentally our position--

JUSTICE GINSBURG: So it could be totally arbitrary as long as it's not a denial, so you're saying there is an equal protection check but not a due process check, is that--

MR. KLATT: Yes. Yes. That's exactly our position.

JUSTICE DAVID H. SOUTER: Then it does matter on your analysis that, although the State--although there is no--in your judgment, although there is no life interest to be protected, and although the State is not obligated to give any clemency consideration at all, it still does not matter on your analysis that the State has chosen to do it, that--that does not implicate a due process concern.

MR. KLATT: It does not implicate it on these facts for the simple reason that Ohio, in enacting the power, did not in any way create standards or criteria that limit the discretion of the decisionmaker.

CHIEF JUSTICE REHNQUIST: Well, that's certainly what Dumschat held, wasn't it?

MR. KLATT: That's exactly what Dumschat held, Your Honor, and it's a case that we rely very heavily on.

We believe it's a case that is right on point in terms of the facts that are confronted with it--that are confronted the Court in our case.

JUSTICE ANTHONY KENNEDY: And the answer that the respondents give is that they say because this is a death penalty it is necessarily a part of the criminal process, and Dumschat was not. Is that how you understand their argument?

MR. KLATT: They, of course, make a number of arguments, Your Honor, but that is one of them, and I believe the argument is flawed for the simple reason that the Court in Dumschat, relying I think principally on the Greenholtz analysis, basically said that if the interest that was at issue--and in that case I admit it was a liberty interest, not a life interest, but I don't think that matters, because what the Court was saying is, if the interest that was at issue was contemplated and encompassed in the underlying conviction and sentence, that that interest has been adequately safeguarded, and--

JUSTICE KENNEDY: Now, suppose--and I suppose it's not too unimaginable a hypothetical--that the clemency authorities said that you may not consult counsel in preparation for your clemency hearing.

MR. KLATT: Well, I think that would--it sounds as if you're asking a straight right to counsel question.

JUSTICE KENNEDY: Yes. That would probably be under just the Sixth Amendment, wouldn't it?

MR. KLATT: It would be I think just under the Sixth Amendment, which of course is not at issue in this case.

In answer to your question, I believe there is no right to counsel constitutionally to--in the clemency process, so the State would not have to provide a counsel.

Now, of course, Ohio does provide counsel in that process.

JUSTICE KENNEDY: Well, but in my hypothetical he has a counsel but he's forbidden to consult the counsel in preparing his written submission to the clemency board.

MR. KLATT: I don't believe that would violate due process, because there is no underlying--

JUSTICE KENNEDY: Well, would it violate any provision of the Constitution?

MR. KLATT: It potentially could violate the Sixth Amendment. It potentially could.

JUSTICE KENNEDY: Well, of course, now the Sixth Amendment is applicable to the States via the Fourteenth, and then you're right back into the question of having to have a life, liberty or property interest. I would assume it would be life here.

MR. KLATT: It certainly is a life interest here.

In that hypothetical, denying counsel at all in the process certainly does not seem correct, but if there's no underlying life, liberty, or property interest I don't know how it would implicate a due process interest.

JUSTICE SOUTER: Does it follow from your argument that there is no due process implication to the provision of direct appeals in criminal cases, no due process implication in providing the cert process that we do?

MR. KLATT: I don't believe that does follow, Your Honor. Clemency and that power is very distinct from the processes that involve the judicial processes.

JUSTICE SOUTER: Oh, I will grant--I'll grant you that, but what I was picking up on was the statement you made ago in one of your answers, I guess, to Justice Kennedy, that the--that the interest being protected had been protected in the underlying proceeding.

And I thought your point was that when in the underlying criminal proceeding, for example, leading to conviction, these interests had been protected, and there was simply a constitutionally unnecessary further proceeding, whether it be appeal, or cert, or clemency in this case, that there was no application of due process to those super-added stages.

Maybe I misunderstood your argument.

MR. KLATT: If I implied that, I misspoke. It's our position that Evitts, which, of course, is a case that is heavily relied upon by my opponent and relied upon by the Sixth Circuit below, is also correctly decided in the sense that due process certainly applies throughout the adjudicatory process, which would include the appeal process.

How much--

JUSTICE SOUTER: Right, but on your theory why shouldn't--why shouldn't the due process stop at the conviction?

MR. KLATT: Because the other processes are part of the system for adjudicating the guilt or innocence of the defendant. Clemency is not--

JUSTICE SOUTER: So the adjudication is not final, in other words.

MR. KLATT: Correct. Correct.

JUSTICE JOHN PAUL STEVENS: Then under your position, as I understand it, a State could totally abolish appeal and say after the trial court proceedings are over whether or not the man will be sentenced or executed should be left entirely to the unbridled discretion of the Governor.

MR. KLATT: Yes.

JUSTICE STEVENS: They could do that.

MR. KLATT: Yes.

CHIEF JUSTICE REHNQUIST: That's certainly consistent with the reasoning in Evitts, is it not, that--

MR. KLATT: I believe--

CHIEF JUSTICE REHNQUIST: --if--you can't block an appeal from an indigent if the State provides one, but the State under Durston against King doesn't have to provide one.

MR. KLATT: I believe that's correct, Your Honor. The--

JUSTICE SCALIA: And if there's anything that seems harsh about that, I suppose it is the deprivation of the appeal, not the deprivation of additional procedures in the--in the pardon.

MR. KLATT: I would agree, Your Honor. I might add that the fundamental flaw, I believe, in the application of Evitts to this case, is that the lower court's decision was based upon a faulty premise, and that premise is, that faulty premise is that clemency is part of Ohio's system for the adjudication of the guilt or innocence of the defendant.

JUSTICE KENNEDY: Well, we have said in cases such as the Herrera case, in talking about the finality of habeas corpus, that there is always clemency. We have made the link, to some extent, in our own writing.

MR. KLATT: Well, I would contend, Your Honor, that simply acknowledging the existence of a power of another branch of Government does not, in and of itself, make it part of the process, and in fact, as I mentioned earlier, as a matter of constitutional structure, clemency is one of the checks and balances that we believe exists, certainly under Ohio's constitution, that is an executive branch's check on the judicial system.

And of course, the check on the clemency power itself is basically the electoral process.

JUSTICE O?CONNOR: Well, Mr. Klatt, in Dumschat, this Court's opinion said that unlike probation, pardon and commutation decisions have not traditionally been the business of the courts and, as such, they're rarely subjects for judicial review.

If we were to take the position that it is conceivable that wholly arbitrary action in the clemency procedure could be addressed under the Due Process Clause, how would you address the allegations that are made here?

Would they survive that rare situation, or how would you address those challenges in this case, if there--if we left open the possibility that there could conceivably be a due process violation?

MR. KLATT: Well, I certainly would hope that you wouldn't, but I believe that Ohio's proce--death penalty clemency procedure in this case would survive such scrutiny.

JUSTICE O?CONNOR: Are you going to address the allegations with any particularity or specificity in giving me that answer?

MR. KLATT: I'd be certainly happy to. Keep in mind here that this policy was enacted to address a problem, and the problem was that the Governor was confronted with clemency applications with very little information, oftentimes because counsel for the death row inmates would not seek stays until the very last minute.

In fact, they had a situation where counsel for a death row inmate filed for the stay the day before the execution date with the district court judge. That judge denied the stay.

The stay was subsequently granted later that day in the Sixth Circuit, but the Governor was quite upset that with practically no information, he was confronted with a clemency situation, so they enact these procedures.

The procedures are designed to be fair--

JUSTICE KENNEDY: I didn't quite--was the stay application, a request for a stay--

MR. KLATT: Of the execution--

JUSTICE KENNEDY: --of the execution by the Governor, so that the--

MR. KLATT: No.

JUSTICE KENNEDY: --so that the clemency process could take place, or it was just--

MR. KLATT: I'm sorry--

JUSTICE KENNEDY: --a collateral--additional collateral attack on the conviction?

MR. KLATT: It was--it was--it was a stay obtained in the Sixth Circuit, a stay of execution so that he could pursue Federal habeas. I'm sorry if I misspoke.

JUSTICE STEPHAN GERALD BREYER: The problem that I'm having is, this case is in an interlocutory posture, and so looking at the opinion, I thought perhaps the circuit has just held that the Due Process Clause could, in some conceivable circumstance, be violated, and can we say now that we could never even imagine a circumstance, no matter how bizarre or peculiar or unfair the system was, that it couldn't possibly be a violation no matter what, and the same, really, in a sense is true of the Fifth Amendment part.

Is it--do we have to say that there's never a circumstance, even if the clemency board were to say, you have to confess to every crime ever, ever conceivable by any member of--you know, I mean, think of the most bizarre circumstance you can.

And now, if there is such a circumstance in which either of these clauses would apply, how can we say that you win, in this posture of the case?

MR. KLATT: Well, it's our position, Your Honor, and we are taking an absolute position, that with respect to due process there is no due process protections that apply here for the simple reason, as I stated earlier, that there is no underlying life, liberty, or property interest to--

JUSTICE KENNEDY: I suppose we could put the same kind of questions if you were arguing about the executive power to appoint or to recog--in the Federal context to recognize a foreign nation. We don't like arbitrary government, but certain powers are committed to the executive.

MR. KLATT: Some power, some delegation of power is absolute. The veto power. State--

JUSTICE GINSBURG: Mr. Klatt, I thought that that was one of the arguments that you made, but in your first exchange with Justice O'Connor you said yes, there'd be an equal protection check, so I was thinking that your argument was kind of like a, what's labeled political question. This is committed to another branch of Government, totally executive, judiciary, hands off.

But your immediate response was no, there is judicial review for constitutionality under the heading of equal protection, so I gathered from that answer that you weren't taking the answer that you are now giving, that this is just hands-off for the judiciary, it is entirely executive branch business.

MR. KLATT: I may have misspoke. My point was that with respect to a due process analysis our position is absolute, because you could--

JUSTICE GINSBURG: But if you're using the political question doctrine, that model, it isn't that as to one clause or as to another clause, it's even--it's a First Amendment violation, whatever. It simply is committed to another branch of Government.

MR. KLATT: We're not going quite that far, because we have acknowledged that there might be some outrageous circumstance where there could be--

JUSTICE SCALIA: What is outrageous? I mean, equal--once you say equal protection, it seems to me you give--suppose the Governor has two applicants for pardon, they are identical in all their circumstances, and the Governor says, I grant one and I don't grant the other.

Is that--you think we can intervene in that case?

MR. KLATT: No--

JUSTICE SCALIA: And if we can't intervene in that case, I suppose we can--we can look to see if they are identical circumstances, so the ball game's over. You've gotten the whole matter into the court.

I don't see how you can give away the Equal Protection Clause and achieve what you're seeking to achieve here.

CHIEF JUSTICE REHNQUIST: Well--go ahead. Answer Justice Scalia. If you consider it a question, answer it. (Laughter.)

MR. KLATT: I'd by happy to respond--

JUSTICE SCALIA: Don't you think that if you give away the Equal Protection Clause-- (Laughter.)

MR. KLATT: It is--it's the position of the State of Ohio that since the clemency power comes from the constitution, at least the Ohio constitution, in Ohio, that it can't violate another expressed provision of the Constitution, and the only one I can think of would be a race-based decision. That seems inherently wrong--

JUSTICE SCALIA: Why, because that is a--currently a very enraging thing, but why is that any more enraging than two identically qualified people, and the Governor says, I like this guy, you get it, and you don't get it? Why is that any different?

MR. KLATT: Well, even in Dumschat the Court seemed to indicate that you could deny clemency for any reason or no reason at all for any constitutionally permissible reason. If it's not a constitutionally permissible reason it might create a problem.

Now, keep in mind, equal protection is not an issue that's currently before you, but if I understand, it's--it's a diff--hypothetical.

CHIEF JUSTICE REHNQUIST: Well, so, supposing the Governor has complete control over the use of the Ohio State stadium for the Ohio State-Michigan game, and he decides that only white people will be admitted for that game.

Now, nobody has a--has any sort of a protected liberty interest or property interest to go to that game at all, but nonetheless the Equal Protection Clause would apply to prevent that sort of discrimination, would it not?

MR. KLATT: I believe it would, and that's I think our essential point, and I don't think quite frankly from a--from a practical standpoint it's that much of a concession.

The--what is really a problem here is applying a due process analysis, which would--at any level, which seems to totally open up the door.

JUSTICE SCALIA: It's easy enough if you limit it to race alone, but once you say you're entitled to equal treatment, why isn't he entitled to come to the court and say, look, just last year somebody was pardoned who has, you know, exactly the same qual--or no better qualifications?

Why doesn't--isn't that a denial of equal--is race the only basis for denial of equal protection?

MR. KLATT: Well, certainly, race is not the only basis, but the--

JUSTICE O?CONNOR: Well, I guess if it's a race-based discrimination we apply heightened scrutiny to it, and if it's not, you have a totally different standard, wouldn't you say?

JUSTICE STEVENS: --then you agree the Governor could have a policy of pardoning all women and no men, or could he not?

JUSTICE O?CONNOR: That also invokes heightened scrutiny of some sort, does it not?

MR. KLATT: That would be intermediate--that would be intermediate scrutiny, which would be higher.

JUSTICE STEVENS: We could review his pardoning power on such a challenge, you would agree.

MR. KLATT: That, I think, is a very close question. I think it would be--

JUSTICE STEVENS: You want to have it both ways on almost every hypothetical. (Laughter.)

JUSTICE SOUTER: No, but Mr. Klatt, isn't your argument here that the Equal Protection Clause does not apply contingent upon the kind of protected interest analysis which is identical to the Due Process Clause?

MR. KLATT: That's exactly it, Your Honor.

JUSTICE SOUTER: And your argument as I understood it was that once there has been a final adjudication through the appellate process which has resulted in a judgment that this individual should lose his life, that there is no life interest left for the Due Proces Clause to protect.

Isn't that your argument, and that's why you take the absolutist position on due process?

MR. KLATT: Yes.

JUSTICE SOUTER: So that if we disagree with you on that, if we say, for example, well, clemency really is part of the adjudicatory process, or if we were to say, well, if you grant a clemency proceeding you've got to have some minimal process for it, you would lose, but at least you would--you would lose because we were rejecting that absolutist analysis as being sufficient, but that's still consistent, I think, with your position on equal protection.

MR. KLATT: I believe that's correct--I believe that's correct, Your Honor.

JUSTICE BREYER: Well, what about the-- JUSTICE O?CONNOR: Well, Mr. Klatt, you never have answered my question. Would you lose if we said there might be some extreme situation governed by the Due Process Clause?

You've never addressed what the allegations are here. One is based on the Fifth Amendment, I believe, and one is based on the timing of the--

MR. KLATT: Correct, and I didn't-- JUSTICE O?CONNOR: --clemency hearing. Are you going to talk about the merits of the claims at all, or are we to end this argument without ever hearing whether you would lose in the event we don't adopt the absolutist position?

MR. KLATT: I believe we would win even if there were some level of due process protection. JUSTICE O?CONNOR: Well, why?

MR. KLATT: And the reason is, is because here we had notice, and opportunity for an interview.

Counsel could participate in terms of helping with the preparation of written materials that the applicant could submit if they wanted to, so you certainly had notice, opportunity for participation, a informal review process--the whole procedure was designed to be fair both to the inmate as well as to the public, as well as to the courts, and as well as to the prosecutor, so I believe the procedure is a fair one under any analysis.

It is not, however, an adjudicatory process, and it is not an adversarial process, which is the very reason why counsel were not permitted at the interview, and counsel would not be permitted at the review itself, and we don't believe that that is in any way problematic, because there's no due process requirement under our argument that that applies, and it's--

JUSTICE BREYER: I take it part of his argument might be, though I'm not positive on this, is that the timing of this is really--there's no reason in the world under the-- as far as clemency is concerned that you have to have the timing deadlines the way you do, and the way you do means that he has to incriminate himself completely at a time prior to the ultimate affirmation of his convictions, and you could move that easily so he didn't have to do that, but the way it stands, he might have to have a new trial, and then he'd be convicted out of his own mouth simply because of an--of an unnecessary and arbitrary timing circumstance in the rules. I think there's something like that going on.

MR. KLATT: I believe that's their argument. I--

JUSTICE BREYER: Well, what's the answer to that?

MR. KLATT: I think the answer is that there is a legitimate--it's not an unreasonable and arbitrary matter of timing.

There's a very good reason for it, and the reason is that the Governor needs to be sure that he has the information necessary so that he can responsibly exercise the discretion that he has.

We're talking about a very short time frame here. The rule says that if you're within 45 days of an execution date and it hasn't been stayed, that's when the interview process and the formal review process goes forward, so there is a legitimate State interest--

JUSTICE KENNEDY: And in this case there was a delay in filing the habeas petition, I take it.

MR. KLATT: There was, and the timing problem in this case was created essentially by the respondent themselves for not getting the stay in a timely way.

JUSTICE KENNEDY: But suppose, just to test the theory and to take Justice Breyer's question a little bit further, a State had a parallel track.

The minute the trial--the trial court proceedings were concluded the clemency proceedings started, and the Governor said, it's very important that you admit guilt, failure to admit guilt will be an inference against you, and this was a parallel process with the direct review. Any problems with that?

MR. KLATT: The further--

JUSTICE KENNEDY: I know that's not your case, but we're just--

MR. KLATT: That's obviously not our case, but I suppose that there is a line some place where timing seems to give rise to compulsion, and that might be a problem.

I'm not sure that it exists in the hypothetical that you proposed, but it might, but certainly, given where the process was in this case, that does not seem to be problematic.

JUSTICE SCALIA: I assume that this answer is on the assumption that the Due Process Clause applies.

MR. KLATT: Yes.

JUSTICE SCALIA: This is not your position in this litigation.

MR. KLATT: Absolutely not.

JUSTICE SCALIA: You would say in this litigation it doesn't matter.

MR. KLATT: Yes. Yes.

If I may, I'd like to reserve the remainder of my time, Your Honor.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Klatt. Ms. Shank, we'll hear from you.

MS. SHANK: Mr. Chief Justice, and may it please the Court:

Respondent Eugene Woodard asks only that this Court find that within the parameters of the pleadings there may be some set of facts upon which he may prevail and that this case be remanded to determine whether such set of facts exists.

CHIEF JUSTICE REHNQUIST: Well, we deal, Mrs.--Ms. Shank, don't we, with the facts that were alleged with respect to the Ohio parole, Ohio clemency process.

I mean, it's not as if we could conjure up some hypothetical set of facts that weren't the standard Ohio parole process--clemency process.

MS. SHANK: We are bound by what's in the pleadings and by the process as it appears in the record, Your Honor, and if I understand your question, I think you're asking if the Court can make a decision on those facts alone.

CHIEF JUSTICE REHNQUIST: Well, the--I got the intimation, perhaps mistakenly, from your statement that if we could conceive of some clemency process somewhere that had some sort of provisions in it that would be so arbitrary we would say due process applies, we should bring that to bear on this case, but we're dealing with an established system of clemency in Ohio, are we not?

MS. SHANK: And I agree, it has to be some process that you can conceive within the procedure that is present here, but I think there are many such conceivable fact situations that may or may not be able to be proved on remand.

JUSTICE SCALIA: But I thought the remand was limited to whether the district court could find that the coercion to confess guilt was an unconstitutional condition.

MS. SHANK: Your Honor, that--

JUSTICE SCALIA: Wasn't that what the remand was limited to, or was it remanded for the district court to come up with any other due process violation?

MS. SHANK: Well, it was remanded with respect to both the Sixth Circuit's analysis of Evitts v. Lucey and the idea that clemency is, in fact, as it is, an integral part of Ohio's criminal justice system as well as on the Fifth Amendment issue.

But, of course, because this was a case that was ruled on based on a motion to dismiss and therefore the pleadings, this Court comes to it as if it's de novo review, and so the Court can look within the pleadings as broadly as it chooses to, so any set of facts that the Court can conceive would be--that would allow due process to apply-- JUSTICE O?CONNOR: Well, I would assume we at least have to look at the facts alleged in this complaint, not some conceivable set of facts from somebody else.

MS. SHANK: Again, Justice O'Connor-- JUSTICE O?CONNOR: Don't we?

MS. SHANK: Yes, absolutely. JUSTICE O?CONNOR: Don't we look at this complaint?

MS. SHANK: I do. JUSTICE O?CONNOR: And this complaint says--

MS. SHANK: Yes.

JUSTICE O?CONNOR: Well, under Ohio's provisions here, which gives the convicted defendant an opportunity to ask for an interview but doesn't require it, you say that's a Fifth Amendment violation there, and it won't stand up. I assume we can address that, can't we, just head on.

MS. SHANK: Certainly, Justice O'Connor, the Court can do anything as if on de novo review within the parameters of the pleadings.

CHIEF JUSTICE REHNQUIST: Well--

MS. SHANK: And that is what I'm trying to say.

CHIEF JUSTICE REHNQUIST: But also we have to take it in the prism of the Sixth Circuit's analysis. I mean, if we disagree with the Sixth Circuit's analysis, the fact that the--that the pleadings might have formed the basis for some other sort of analysis wouldn't have much to do with how we treated the opinion of the Sixth Circuit.

MS. SHANK: Chief Justice Rehnquist, it's true that the Sixth Circuit's opinion surely should be informative and helpful to the Court.

CHIEF JUSTICE REHNQUIST: Yes.

MS. SHANK: But it is my understanding that the Court can clearly look, as if on de novo review, at the pleadings and determine whether or not there are other problems or other aspects of this process that need to be considered in order to--

CHIEF JUSTICE REHNQUIST: But what we granted review on was not the pleadings that were filed in the district court. It was the opinion of the Sixth Circuit, and if, for example, we should feel that the Sixth Circuit totally misapprehended our Dumschat opinion we would probably say so in an opinion.

MS. SHANK: And it could very well be that the Court would choose to remand for--to the Sixth Circuit for assessment in light of what it took to be a misunderstanding.

JUSTICE KENNEDY: And we also--and we also would, and I think must examine the Sixth Circuit's holding that the self-incrimination aspect of the case presents a serious constitutional problem in that it's a--an unconstitutional condition on the imposition of the--on the Fifth Amendment.

MS. SHANK: Certainly the Court may choose to do that. You are obviously not required to do so.

We think that it is an unconstitutional condition, and I hope I haven't said anything to make you think I'm saying you should only address one issue. I'm not.

JUSTICE KENNEDY: Well, but that's the best way for us to get into the case and that's--and that's, it seems to me, a quite problematic holding on the part of--on the part of the court of appeals.

Suppose the Governor says, I'm not interested in granting clemency to people that haven't confessed, that shows remorse. That's what I'm interested in. There's no problem with that, is there?

MS. SHANK: Well, one of the things that I'd like to point out which--

JUSTICE KENNEDY: I mean, you may disagree with it as a policy matter, but as a constitutional matter he has a complete right to say that, I should assume.

MS. SHANK: It's absolutely true that the Governor has complete discretion under Ohio's clemency processes. However, the Governor's executive discretionary decisionmaking authority truly is not at issue in this case.

We are looking not at the end result, which is the decision made by the chief executive of the State, but rather at the procedures that are limiting the right to seek clemency. We're looking at the front end of a process.

As this Court noted in Dumschat, there the Court found there was no due process interest in that end result, at least none that required an explanation of the reasons for a clemency decision.

CHIEF JUSTICE REHNQUIST: It said none at all. Didn't the Dumschat opinion say that?

MS. SHANK: The Court found that there were no due process liberty interests at that point.

CHIEF JUSTICE REHNQUIST: Yes.

MS. SHANK: But the important point for us with regard to Dumschat is the fact that the Court noted in the final line of the opinion that Connecticut had a State right to clemency and there had been no breach of that right.

Now, the Court went no further, but the fact that the Court recognized a difference between the end result of the executive discretionary decisionmaking process and a possible difference between that and the right to get your papers on the Governor's desk is what we are focusing on here.

The other thing is that I think--

CHIEF JUSTICE REHNQUIST: Well, let me read you a couple of sentences from Dumschat which strike me as being a little different than the way you interpret-- the Court said we rejected the claim that a constitutional entitlement to release from a valid prison sentence exists independently of a right explicitly conferred by the State, and then it goes on to quote from Greenholtz.

There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.

Well, it seems to me that says that unless the State has created some sort of a liberty interest there isn't any. Justice Stevens in dissent, of course, felt differently.

MS. SHANK: Chief Justice Rehnquist, I agree with what you just read from Dumschat, and I think that what is important about it is that it does focus on the decision, and that's what this Court said there isn't an interest in.

At the end of this process, as Justice Ginsburg noted, we are moving into the executive discretionary decisionmaking process, and there, the Court is right, but we are not looking at that end of it, and we're not looking at what the decision is.

We are looking at the right to apply for clemency and get to the point where we get a decision, and I think Ohio--

JUSTICE SCALIA: This is--I don't understand this. This is sort of a right to the process with nothing at the end of it?

MS. SHANK: It's a right--

JUSTICE SCALIA: It's just a right to the process in--I can understand, and I think Dumschat permits your claiming a right to the procedure which the State has accorded, so that if they violate their own procedures for clemency, yes, you would have some right to complain.

But where their procedures give you no more than what you've received, you're asserting that you've been deprived of what?

You say, I'm not being deprived of my liberty, but I'm just being deprived of something in the abstract that--I don't--I really don't understand--

MS. SHANK: Well, okay, Justice Scalia, we're actually presenting four different grounds, one of them being the fact that the State has created a liberty interest and a life interest in clemency in Ohio, and that is in the right to seek it, and the Ohio supreme court noted in Weaver v. State that clemency is the remedy that is available to individuals who are unable to achieve redress in the courts.

They said in In re Kline that Ohio defendants who can't have a conviction overturned because it's beyond judicial process have a right to apply for clemency.

On top of that--

JUSTICE SCALIA: Right, but--let me just clarify. You're not contending that Ohio violated any of its own laws pertaining to the clemency application.

You're saying that something which they have in there shouldn't be there, or that something which they don't have should.

MS. SHANK: We--we are saying that this process violates that State-created right to seek clemency in that particular analysis.

CHIEF JUSTICE REHNQUIST: The court of appeals disagreed with you on that point though, didn't it?

MS. SHANK: The court of appeals--

CHIEF JUSTICE REHNQUIST: Did it, or did it not?

MS. SHANK: They did not accept that position, but again, I would like to put forward, Your Honor, that we were on motions and pleadings, and the facts hadn't been fully explicated, so the court didn't have before it the full history and background--

CHIEF JUSTICE REHNQUIST: Well, but presumably the court of appeals well knew that compl--you--dealing with a complaint dismissed on motion you give it a generous construction. You say that's what we should do, and certainly I'm sure the court of appeals knew that.

MS. SHANK: Your Honor, I can tell you from reviewing the pleadings that the cases that I've just cited to you, In re Kline and Weaver v. State were not before the court, and very, very--

CHIEF JUSTICE REHNQUIST: You didn't arg--you didn't argue that point to the court of appeals?

MS. SHANK: Your Honor, the question of whether or not there was--

CHIEF JUSTICE REHNQUIST: Did--I asked--I asked you a question, Ms. Shank.

MS. SHANK: I'm sorry, Your Honor.

CHIEF JUSTICE REHNQUIST: I asked you, did you argue those cases that you just cited to the court of appeals?

MS. SHANK: No, they were not included in the briefing at that point, Your Honor, but the issue was included, the question of whether there was a State right.

But I think that the entire process has been truncated by the fact that it was--that the Court--it's here before the Court without sufficient fact development.

That's why a remand is in order. Were the Court to send it back--

JUSTICE GINSBURG: But Ms. Shank--Ms. Shank, one of the problems is, it's always going to be facial because you took this case out of the Ohio system--true, it's an executive process, and you're taking it into the Federal court and you're saying now, what if, what if. We don't know what it would be.

If--are you taking the position that it is inevitable that this procedure that Ohio has would yield a violation of due process?

Couldn't one say, well, it may work so that he is treated fairly. How can one say just on what we have here that applying these rules to his case would inevitably deny due process?

MS. SHANK: Justice Ginsburg, we agree with that. We think that it is possible that it could go back on remand.

There could be full hearings, and there could be factual development that determined that in fact sufficient due process protections have been recognized, but--

JUSTICE GINSBURG: But it had been--nothing has happened. You took--you got a stay and took it all into the Federal court, so we don't know how this State process would work because it didn't get off the ground.

MS. SHANK: That's correct. It--

JUSTICE BREYER: The analogy that I'm--sorry. Were you--answer Justice Ginsburg. I'm sorry.

MS. SHANK: I was just going to say, it's correct we would--for this Court right now the determination has to be whether within the parameters of what's before it, that we might possibly prevail on a set of facts that could be established on remand, and so what you suggested earlier, that we could go back and find that what has been provided is sufficient, is a very real possibility.

It's certainly not what we believe, but it is possible, and it could happen. So there's nothing in this case to say that we couldn't go back and find ourselves being told that due process parameters have already been satisfied.

JUSTICE GINSBURG: Or will be.

MS. SHANK: Or will be under the--

JUSTICE STEVENS: May I go back to Dumschat for a second, because I didn't--I didn't think you distinguished it in the same way that the court of appeals did.

It seems to me one can reasonably say that the right to due process before liberty is taken away is exhausted once you're in jail, because your liberty's gone.

But you're relying on the right to due process before life is taken away, and this man is still alive, so you have an argument for a protected interest in procedures until his life is taken away that just wasn't available in Dumschat because he was in jail.

MS. SHANK: That's correct. We do also present to the Court the fact that there is a Federal life interest protected by the Fourteenth Amendment that is independent of the other issues that we've presented, the other types of interests, and that that was not present in Dumschat, and that it independently is basis alone to allow this Court to make the decision that special--that this special proceeding for death penalty cases impacts that life interest and therefore distinguishes it from Dumschat.

JUSTICE SOUTER: I think the State might argue it this way in response to your argument about the life interest. I think the State might say, we agree that there is a life interest up to the time which may lawfully be set for execution under Ohio law, but that's not what's in question here.

What's in question here is an opportunity to have life after the date which the law has already said at which it may be taken away, and because you have no life interest after that point--you litigated that on direct appeal and you lost--because you have no life interest after that point, and because that is the only life interest that could be served by clemency, there is no interest for Fourteenth--for due process analysis, to which process could apply and help you.

What's your answer to that argument?

MS. SHANK: Well, first that the life interest remains fully intact as long as a person is alive. I mean, the Fourteenth Amendment right to life that is protected is nothing more and as simple as the right to be alive and to continue to live, and a date does not determine when that right that is protected ends.

The only thing that ends that right and its protection under the Constitution is actual death.

So the life interest, unlike liberty, isn't diminished in increments. It's not diminished by having been placed into the prison, as is the liberty interest, and it can't be diminished in bits and pieces.

It exists with all of its--in its full-blown state until the moment of death.

And I think recently this Court recognized that in its--addressing the question of whether or not there was a right to assisted suicide.

There the Court even cited the Ohio supreme court, saying that even condemned prisoners have the right to the protection of law up until the last moment of life.

CHIEF JUSTICE REHNQUIST: Well, all we held--we held in the assisted suicide case was that there was no constitutional right to have the assistance of a physician if you wanted to commit suicide, wasn't it?

MS. SHANK: That's correct.

JUSTICE BREYER: Can you think of any other analogies of the--I take it your basic argument is that the procedural part of this is something that the Ohio legislature itself has said is not within the Governor's exclusive power.

They say the general assembly's authority to regulate the application process extends from the time just before the Governor reaches the decision, and you're talking about that time before, is that right?

MS. SHANK: That's correct.

JUSTICE BREYER: And what I'm looking for, the only one with a very far analogy is like international airline applications, where the Courts won't review what the President's final decision is, but I've always thought they would review what used to be the Civil Aeronautics Board's preparation of the recommendation to the President.

That's a pretty far-out analogy, and I wonder if there are other instances you could think of where the congressionally regulated preparation of the application is certainly reviewable, but the final decision is not.

You've looked into this, so I assume your answer is no, you can't.

MS. SHANK: I have looked into it, and I think that there are some arguments about veto.

I mean, that's a possibility, although there are different remedies, rather than going back to the--

JUSTICE BREYER: All right. Have you--I--the other question that I has is, is the particular problem here, which I couldn't quite figure out from the dates--I can't keep them quite in mind, but the particular problem is that the State says, prepare this 45 days before the execution is scheduled, but in the case of your client, he had to go to his hearing 6 months before, or 4 months before, because there was a stay that said the execution couldn't take place until January 18, '95, but they wanted to have the hearing on September 9, 1994, and you're objecting to the fact that they made him come to that hearing without lawyer, and having to incriminate himself so soon. Could you explain that a little bit, how those work?

MS. SHANK: Sure. There are a number of factors involved in it. The time frame is that if you have not managed to get a stay when--within 45 days before the first scheduled execution date after the Ohio supreme court finishes direct appellate review, a hearing will be scheduled, and even if you get a subsequent stay--in this case the stay was actually granted on the 45th day, so it's one of those counting things.

They decided that day did count for their purposes, and we would, of course--

JUSTICE BREYER: Your objection, then, precisely is you say, look, he can't have a lawyer, he has to incriminate himself, and all they have to do to avoid the problem and keep their time is, you say, do it 45 days before, but if there's been an extension of a stay, well, then it's 45 days before the real execution date, not the one that was just hypothetical.

Is that the problem?

MS. SHANK: Well, the problem is more complicated than that because, of course, the petition--I mean, the respondent in this case, or the inmate in any case has an extremely limited control on that timing.

You can file for a stay, but there are many exigencies that come up with the--in the court system that sometimes it takes 2 months to get a stay, sometimes you're very lucky and you can get a stay within a week or 2 or 3 days, so you don't have control over the timing in this case no matter how it is handled.

But part of the reason that this is so critical is that whenever this particular process kicks in, it then negates the opportunity--well, I should say, negates the right to have a clemency application filed by the inmate and have it considered.

CHIEF JUSTICE REHNQUIST: Ms. Shank, is there any rule in Ohio that you know of that would prevent your client in his interview with the clemency people from declining to answer a question because it might incriminate him?

MS. SHANK: There's nothing in the procedure that says that that could not be done, although the procedure itself is, with regard to the interview is inherently coercive, counsel is specifically prohibited from being there, in this case we had 3 days' notice and counsel would not have had an opportunity--

CHIEF JUSTICE REHNQUIST: But so far as you know the--the--there are no further sanctions--in fact, it's difficult to see what further sanction could be attached to someone who is condemned to death--would be attached if the--if your client simply said, I'm not going to answer that question?

MS. SHANK: Well, they may draw an adverse inference from his silence, may view him as being uncooperative, and go--

CHIEF JUSTICE REHNQUIST: But that wouldn't--that wouldn't incriminate him.

MS. SHANK: Well, but it's part of what the problem is with the choice that he is facing. Incriminating him if he chose to speak and then those matters were used against him--

CHIEF JUSTICE REHNQUIST: But that happens in civil proceedings all the time.

MS. SHANK: And it's possible, too, that it could be used to impeach him, and the silence itself could at least be attempted to be used for impeachment in subsequent criminal proceedings, so--

CHIEF JUSTICE REHNQUIST: Well, by the time you get to clemency beggars can't be choosers. (Laughter.)

MS. SHANK: Well, Your Honor, and I think that if clemency were to be handled at the end of the process instead of at this premature point where you have ongoing litigation and future litigation as a right still in front of you, that it might be possible that a procedure that set some time limits toward the end of the process would meet due process.

JUSTICE SCALIA: Ms. Shank, it's not only capital defendants who apply for clemency, and it's quite possible to talk about the end of the process when you're dealing with a capital defendant who's lost, but what about other defendants? What's the end of the process?

As long as they're in prison they can--they can continue to find new reasons why the case should be reopened, and so forth and so on. What is the end of the process for someone who hasn't--you know, hasn't been condemned to death?

MS. SHANK: Well, for Ohio's purposes it's not relevant because they don't put these restrictions on noncapital defendants.

These restrictions and these time frames, this mandatory, this forced clemency review at this early date is only applied in capital cases.

JUSTICE SCALIA: Well, but in any of the other cases, whenever the hearing is held, wouldn't the prisoner have the same objection?

You know, I'm going to be spending years in prison trying to figure out what went wrong in my trial, and I'm going to file collateral review applications, and by making me come in and confess, you're making it impossible for me to do that. Wouldn't every prisoner have that claim?

MS. SHANK: Well, Justice Scalia, I think that's part of the problem with that process, is that if a prisoner initiates the clemency process, if he exercises that State right we've talked to you about seeking clemency, then he's made some choices about where he wants to go and the statements he's making.

But when he is subjected to a forced process at a time when he is still in litigation, those considerations aren't available to him.

JUSTICE SCALIA: I understand, but all my--the point I'm making is, we can't solve the problem, as Justice Breyer suggests, by simply making sure that the proceeding here is held after the--after the last habeas before the execution.

The problem's going to exist in noncapital cases perpetually.

MS. SHANK: Justice Scalia, I must say that if it was a forced process at some time, I think that perhaps the hypothetical you're proposing would have application to noncapital cases, but that's not the situation in Ohio.

Noncapital cases aren't subjected to that standard. They aren't forced into clemency review and, of course, we are dealing with the capital case here.

JUSTICE GINSBURG: Suppose Ohio said, well, for capital cases we're going to have a simple proceeding.

It's just the Governor and whatever trusted advisor, so we cut out all this process that you're complaining is inadequate.

Would it be constitutional for Ohio to have such a system, just the Governor, who will consult with a trusted advisor?

MS. SHANK: I think that at least under the parameters that we're dealing with in this case the answer would be yes, because the right to seek would not have been impaired.

As long as the State doesn't erect a barrier to getting to the decisionmaker, I think that the clemency right to seek has been observed.

Now, part of the problem we have here is that we have a process that keeps us--

JUSTICE GINSBURG: So once you have a process, once you try to install something like this, it better be meticulously observed.

Doesn't that give the signal that it's not very wise for a State to have these processes, that they ought to stick with just a simple, you ask the Governor, the Governor says no, that's it?

MS. SHANK: I don't think it has that meaning here, because the meticulous observation of rules comes from that line of cases, Meacham and the prison cases, Greenholtz, some of the cases that have been mentioned.

But in those cases, the procedure did not erect a barrier either to getting to the final decisionmaker, even in Dumschat, even in the prison cases, and it did not prevent the ultimate decisionmaker from making his decision.

This process has to be complied with--I mean, the application process has to be complied with for the Governor to make a valid decision, and it's a forced process that once it's been engaged in, its initial timing denies a meaningful opportunity to be heard at a meaningful time and then precludes the right to seek when it is meaningful, because it becomes discretionary with the APA whether a subsequent application from the inmate will be considered for clemency.

That is under paragraph G of the policy, which makes it forever, and then in--at the administrative code, 5120 1-1-15 puts a 2-year limit on it.

At the moment I cannot tell you which of those--the courts of Ohio will determine may or may not be the final time limit on how long they can withhold the clemency application from consideration.

So I think that the process distinction here, and the reason we don't have to worry about the details, is that this is a process that keeps us from getting there.

Those cases that address that kind of detailed parsing of the language are ones where you always were able to get there.

I also think that in this case we have a situation where the process itself has created the kinds of parameters that this Court has recognized as creating a due process interest, a State-created liberty interest that deserves due process protection.

JUSTICE KENNEDY: Do we have--it seems to me that the most force in--the most forceful of your arguments is the unconstitutional condition argument on the self-incrimination privilege that he has in the--in the criminal proceedings, and there we focus on the criminal side and say, he's losing something on the criminal side because you're coercing or compelling the abandonment of the--of the privilege.

What's your best case on that? Baxter doesn't work for you, really.

MS. SHANK: Well--

JUSTICE KENNEDY: And as a--sort of a follow-up to that, do we ultimately come back to the question whether or not there is a right to the clemency proceeding, so that we're back to the initial point.

MS. SHANK: You don't have to come back--I'll answer first--the last part first.

JUSTICE KENNEDY: Mmm.

You don't have to come back to there being a right to the clemency proceeding in order to reach the question whether or not this imposes an unconstitutional condition.

JUSTICE KENNEDY And what's the best case for that?

MS. SHANK: I think that the best case for us is one that analyzes the rough proportionality or rational nexus that must exist between the condition that's being imposed and the policy it's supposed to implement, and that is Dolan v. City of Tigard, where this Court found that that was essential.

The purpose, the stated purpose, the declared purpose by the Ohio supreme court and the Ohio constitutional debates for these legislative regulations on the application process, and they are legislative, not executive, is to ensure the quality of information that reaches the Government.

When you put the person in the position of either being unable to participate because they have to exert their Fifth Amendment rights, or being in a coercive situation, then you have undermined the State's stated purpose for having these regulations.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Shank. Mr. Klatt, you have 3 minutes remaining.

MR. KLATT: Thank you.

One thing I'd like to make very clear is that there is nothing in Ohio's death penalty clemency procedures that compel the respondent to incriminate himself.

The interview places no condition requiring the waiver of any constitutional right, and has no element of compulsion.

JUSTICE KENNEDY: Well, suppose it was very clear that silence would be not only an adverse inference but would likely result in denial of clemency.

MR. KLATT: You might have compulsion under those circumstances. That's not the situation here.

JUSTICE BREYER: What if the--I don't know if she wants this argument, but the strongest point, I thought, going back to the complaint, would be a Mathews v. Eldridge point, that all she wants is you to postpone this hearing until it's 45 days before the real execution, and you won't do it.

And the State's interest in not doing it--you know, not postponing it till the 45 days is real, is zero, her interest is--well, she loses her right, the client loses right to a lawyer and self-incrimination in a real practical way, very strong.

The administrative ease is tremendous. All you have to do is say we're going to follow what the court does, and therefore this is a tremendously strong argument for--since it isn't even the Governor, it's the special board run by the legislature, for denial of due process.

Now, I'm being quick about that, but I--so what's your--what--I got that out of the complaint, all right--what's--

MR. KLATT: Well, I would--I would respectfully disagree, that there is a very important, legitimate State interest in the timing of obtaining the information.

Even if a stay would be obtained, the order--

JUSTICE BREYER: Sure there is, but everybody else, everybody without a stay it's 45 days before, it's before the real execution, so what's your interest in getting that information 6 months before the execution, where all that's happened is that there's been a court order delaying it for 6 months.

MR. KLATT: Well, if I understand your question, I don't know that the State would have an interest at that point--

JUSTICE BREYER: Here they ask--they pointed out, they enclose, attached to the complaint, the court order of Ohio making the execution date not 45 days after September 9, but sometime after the following January 18, and still the board, they say, wouldn't postpone the hearing. They wanted to have it on the 9th.

MR. KLATT: That's correct. The simple fact that there is a time limit--in this instance it was 45 days, which seems to be a reasonable period of time--who knows when the stay might ultimately be obtained.

It might never be obtained.

CHIEF JUSTICE REHNQUIST: I supp--I suppose for Mathews v. Eldridge to apply, there would have to be some protected interest under the Due Process Clause in the first place.

MR. KLATT: Absolutely, and fundamentally--

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Klatt. I think you've answered the question.

The case is submitted.