January 26, 2021

Capital Clemency Resource Initiative Update

2020 was a busy year for the Project’s Capital Clemency Resource Initiative (CCRI), which has continued to support attorneys bringing clemency-related litigation and to develop educational resources related to the capital clemency process.

In June, the CCRI assisted federal defenders in Tennessee as they brought a federal lawsuit seeking to halt their client Harold Wayne Nichols’ August 4, 2020 execution date. Although other execution dates scheduled in Tennessee for 2020 had been reset by the Tennessee Supreme Court due to the COVID-19 pandemic, the court denied Mr. Nichols’ similar motions for a stay. As a result of the pandemic, counsel were unable to visit with Mr. Nichols between March and June 2020 or conduct any of the investigation needed to prepare his petition for executive clemency. In addition, Mr. Nichols was unable to meet with his spiritual adviser or participate in regular religious services at the prison. The CCRI helped defenders develop the legal arguments for why such conditions interfered with Mr. Nichols’ rights in executive clemency proceedings. While the federal lawsuit challenging the execution date was pending, Tennessee Governor Bill Lee issued Mr. Nichols a reprieve of execution through the calendar year 2020, citing the obstacles posed by the COVID-19 pandemic and Mr. Nichols’ right to due process protections in clemency.

Throughout the fall, the CCRI also provided support to several of the legal teams representing federal prisoners scheduled for execution as they dealt with the implications of the surging pandemic on their clients’ ability to seek clemency. The CCRI supported attorneys for Orlando Hall, Brandon Bernard, and Lisa Montgomery as they sought judicial stays of execution given the impossibility of effectively advocating for their clients in clemency during the public health crisis. Unfortunately, efforts on behalf of Mr. Hall and Mr. Bernard’s were unsuccessful, and they were both executed. Ms. Montgomery received a stay of execution from the D.C. District Court in November 2020, after her attorneys contracted COVID-19 in the course of their representation. The judicial stay, which was not appealed by the government, specifically cited Ms. Montgomery’s right to effective representation in clemency.

The CCRI also published an additional two state memoranda on its resource website, www.capitalclemency.org, this year. Memos detailing the clemency process in Florida and Tennessee are now available, bringing the total number of state memos on the site to 16. With the help of interns and volunteers, the CCRI hopes to publish additional state clemency memoranda in 2021.