November 29, 2018

Capital Clemency News & Developments

Capital Clemency and Traditions of Mercy

Although clemency is widely regarded as a critical stage of any death penalty case, its role as an 'extra-judicial' process allows for consideration of issues and concerns that the courts are frequently not empowered to consider. Of particular note in the context of clemency is its potential intersection with larger conceptions of 'mercy' - something which, in the past, has led to death penalty commutations.

Interestingly, December 8, 2015 marks the start of a “Jubilee Year of Mercy” for the Catholic Church, an event announced by Pope Francis in March that traditionally takes place every fifty years, historically defined as a time when “properties were returned to their original owners or legal heirs, slaves were set free and creditors were barred from collecting debts.” Within the Catholic Church, a jubilee is typically celebrated every twenty-five years, with the next jubilee slated for 2025. The Pope has the power to declare “extraordinary” jubilees, however, which is what Pope Francis did this year, in declaring 2016 a “holy year of mercy.”

Pope Francis’s decision to declare an extraordinary jubilee, asking people in the coming year to “put mercy before judgment,” also coincides with his recent actions and statements concerning the death penalty in the United States and worldwide. In a September address to the U.S. Congress, Pope Francis spoke out in favor of the abolition of the death penalty, stating that “every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” In addition to this address, Pope Francis drew attention when he sent a letter to the Georgia Board of Pardons and Paroles asking that the Board commute the sentence of death-row inmate Kelly Gissendaner. (Gissendaner was executed on September 30, 2015, despite the Pope’s request). Representatives for the Pope also sent a letter to Oklahoma Governor Mary Fallin in advance of Richard Glossip’s scheduled execution this fall, urging that commutation of Glossip’s sentence would an “admirable and just act of clemency.” (Glossip’s execution was ultimately stayed on account of last-minute problems with Oklahoma’s lethal injection drugs). 

Although grants of clemency to death-row inmates typically involve concerns about the appropriateness of a death sentence amid concerns over innocence, intellectual disability, or proportionality, governors have, in the past, taken pleas of mercy into account in deciding a condemned individual’s fate. In 1999, Governor Mel Carnahan of Missouri commuted the sentence of Darrell Mease, following a papal visit to St. Louis and a plea to save Mease’s life. While Carnahan’s decision came as a surprise to many, it was within Carnahan’s power to commute Mease’s sentence on any grounds he deemed appropriate.  (See Chapter 9 in the ABA’s Missouri Capital Punishment Assessment Report, available here).

It is unclear what effect, if any, this year’s extraordinary jubilee year of mercy may have on clemency decision makers’ consideration in capital cases, but, as the Supreme Court has itself said, “a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws.” United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833).  The coming year will also, coincidentally, reflect an increase in the ABA’s attention to capital clemency, through its creation of the Capital Clemency Resource Initiative.  The CCRI was established to address the troubling lack of resources and expertise available to practitioners and decision makers in the capital clemency process and—for the first time—to provide targeted, comprehensive, and current materials to guide stakeholders through this crucial last phase of the death penalty process.  These materials will become available for the first time in 2016.

Posted on December 8, 2015 by Laura Schaefer, Counsel, Capital Clemency Resource Initiative

Raphael Holiday Executed in Texas Amid Concerns about Access to Clemency

On Wednesday, November 18, the Texas Court of Criminal Appeals (CCA) overturned a lower court order staying the execution of Raphael Holiday, despite significant concerns regarding the performance of his attorneys in the months and weeks leading up to his execution. In particular, observers were troubled by Holiday’s attorneys’ stated refusal to seek clemency on their client’s behalf, in contravention to both Holiday’s and his family’s wishes. Attorneys Seth Kretzer and James “Wes” Volberding stated that to seek clemency would only give Holiday “false hope,” and opined further that attempts to seek last-minute reprieves for death-sentenced prisoners only “play[s] dice with their emotions.” (Days before Holiday was set to be killed and in response to mounting criticism, Kretzer and Volberding did ultimately file a brief petition for clemency on his behalf – one which was hastily rejected, and which misstated the scheduled date of execution). While Holiday also sought to have Kretzer and Volberding removed from his case and substituted by counsel who would meaningfully seek clemency on his behalf, this motion was denied by a federal district court.

The decision of the courts not to intervene in Holiday’s case prior to execution raises potentially significant questions about the contours of death-sentenced prisoners’ right to seek clemency prior to execution – a right which every active death penalty state recognizes. Justice Sotomayor, in concurring with her colleagues that the Supreme Court “is likely to have no power to order Texas to reconsider its clemency decision,” nevertheless wrote of Holiday’s case:

By granting death-eligible defendants an attorney, ‘congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘fail safe ’ of our justice system.’ […] So long as clemency proceedings were ‘available’ to Holiday…the interests of justice required the appointment of attorneys who would represent him in that process. […] (internal citations omitted) Holiday v. Stephens, 577 U. S. ____ (2015) at 3.

In Texas, the governor is permitted to grant clemency in capital cases only pursuant to a recommendation by the Texas Board of Pardons and Paroles. (See Chapter 9 in the ABA’s Texas Capital Punishment Assessment Report, available here). Even with such a recommendation, however, the governor is free to deny clemency if he or she so chooses. While Board recommendations of clemency are rare, and governor approval of such recommendations is even rarer (only two death-sentenced individuals have received clemency in Texas since 1976, while 531 executions have taken place in that time), clemency is nevertheless a crucial stage of any death penalty process. As Justice Sotomayor pointed out, clemency has been regarded by the Supreme Court as a “fail-safe:” a final opportunity for review and reflection on the appropriateness of the sentence prior to the imposition of the ultimate punishment.

While clemency is an extra-judicial process – meaning that it takes place outside of a courtroom, typically free from the myriad rules which govern traditional legal proceedings – it is precisely on account of its unique posture that it is so important in any death penalty case. Clemency allows for facts and evidence to be presented which may have been unavailable, or barred, on previous review; it allows for those impacted by the crime (both the family of the victim and the family of the condemned) to be heard; and it allows the individual facing death to feel that he or she has one final opportunity to seek mercy. Indeed, Holiday himself told reporters prior to his death: “If I have to die, I want at least a fair chance of fighting.”

There is no question that the current likelihood of receiving clemency in Texas – or in any death penalty state – is slim. Nevertheless, the fairness of any death penalty system depends on the willingness of actors to treat each stage of the process with the care and gravity that the ultimate punishment demands. Unfortunately, clemency has received relatively little attention as compared to other stages of the death penalty process. In response, the ABA has funded the Capital Clemency Resource Initiative (CCRI) in an effort to reinvigorate both practitioners’ and decision makers’ treatment of clemency. Without renewed concentration on this crucial issue, cases such as Holiday’s may become more frequent, and clemency will cease to operate as the “fail-safe” the courts have long envisioned.

Posted on November 30, 2015 by Laura Schaefer, Counsel, Capital Clemency Resource Initiative