In Ohio Adult Parole Authority v. Woodard, the Supreme Court held that death row prisoners are entitled to some minimal due process protections in petitioning for clemency—most commonly, a commutation to a sentence of life in prison—from a state governor. This conclusion reflects a tension between the recognition that the Due Process Clause applies after conviction and a historical reluctance to involve the courts in the business of reviewing executive clemency decisions. Yet the Court has never clarified what those protections must look like, or what conduct on the part of government officials violates a prisoner’s due process rights.

At the turn of the century, several courts of appeals held that when government officials interfere with a death row prisoner’s application for clemency—for example, by threatening employees who offer to submit testimony on that prisoner’s behalf—they violate the Due Process Clause. More recently, however, at least one circuit has held otherwise and concluded that such interference is permissible.

This Comment looks beyond the language of the Supreme Court’s opinion, which the circuits have fought over for more than twenty years, to the Court’s historical conception of post-conviction constitutional rights. This jurisprudence reveals a clear dividing line between demands that a state change its procedures for seeking post-conviction relief and allegations that a state has denied a prisoner access to existing procedures for seeking relief. It is this denial of access that offends the Due Process Clause’s requirement that prisoners have a right to be heard. Armed with this conceptual distinction, this Comment argues that government interference in the clemency process is best viewed as an impermissible denial of the right to be heard, and that prohibiting such interference will vindicate, rather than undermine, the discretion of the executive to extend mercy as it sees fit.