In November 2019, the ABA, with help from the Project and its Capital Clemency Resource Initiative, submitted a letter to the Texas Board of Pardons and Parole regarding the case of death row prisoner Rodney Reed. Mr. Reed was sentenced to death for the rape and murder of a young woman, but forensic evidence developed in post-conviction proceedings indicates he did not commit the crime. Significant other evidence of innocence has also been developed in the years since his conviction. The letter urged the Texas Board, which is the only entity in the state empowered to recommend a commutation of death sentence, to use its power to do so in this troubling case. Aided by the CCRI’s research into and expertise in how discrete state clemency systems function, the letter also called upon the Board to use its investigatory authority to hold a hearing to allow consideration of evidence that had not been reviewed on the merits in any court. The Board unanimously recommended a 120-day reprieve of execution for Mr. Reed, shortly before the Texas Court of Criminal Appeals halted the execution and remanded the case for an evidentiary hearing on numerous grounds, including actual innocence.
In October 2019, the ABA submitted a letter in support of clemency for Florida death row prisoner James Dailey. Mr. Dailey, a Vietnam War veteran, was sentenced to death for the murder of a teenage girl in Tallahassee in 1985. His co-defendant, Jack Pearcy, who initially implicated Mr. Dailey in the crime, later refused to testify against him at trial and subsequently admitted on four separate occasions that Mr. Dailey had not actually been involved in the killing. Nevertheless, after failing to secure a death verdict for Mr. Pearcy, prosecutors relied on the testimony of three jailhouse informants to secure Mr. Dailey’s conviction and death sentence—including from one informant described by law enforcement in other jurisdictions as a “known con artist.” Aside from this highly suspect testimony and Mr. Pearcy’s later-recanted statements, no other evidence implicated Mr. Dailey in the crime. Based on the dearth of evidence suggesting Mr. Dailey’s guilt and the lack of available process in the courts for a claim of actual innocence, the ABA called upon Florida Governor Ron DeSantis to withdraw Mr. Dailey’s execution warrant and reopen clemency proceedings in the case. A federal court subsequently granted Mr. Dailey a stay to allow newly appointed counsel time to pursue a federal habeas petition. Meanwhile, in response to the clemency advocacy efforts on behalf of Mr. Dailey, clemency board members suggested interest in reviewing his case and in taking a more active role in capital cases generally before execution dates are set.
In both letters, the ABA emphasized that clemency acts as a “fail-safe” in the criminal justice system, noting that the U.S. Supreme Court has identified clemency as the proper forum to resolve claims of innocence brought during late-stage appeals, and that the clemency process is “specifically empowered—and uniquely positioned—to correct injustice where the courts cannot.”