Friday, March 19, 2010

Casting light on Texas clemency decisions

I've not followed the Hank Skinner case on Grits; the blow-by-blow has been covered well elsewhere and I've had nothing in particular to add to the conversation. (Sam Millsap's recent column in the Houston Chronicle largely reflects my views.) Certainly I think any potentially exonerating forensic tests should be performed before his execution date, currently scheduled for March 24; you don't want such inconvenient truths coming out after the fact.

But as the clock ticks and the lawyers wait on the U.S. Supreme Court to decide whether DNA evidence must be tested, Skinner's case is casting light on some particularly dark corners of the justice system, most recently the clemency process, which has essentially withered and atrophied from disuse. In an article at the Texas Tribune titled "The Secret Pardon," Brandi Grissom gives voice to critiques of enigmatic and abstruse clemency practices at the Texas Board of Pardons and Parole:
The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for [Skinner's attorney Rob] Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn't have to hold public meetings on clemency cases like [Hank] Skinner's. It's not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. If the vote isn't unanimous, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed. “To the extent we assume that the clemency review process is a meaningful safeguard for cases like Hank’s, where there might be doubt about guilt … our trust is misplaced,” says Owen, co-director of the University of Texas at Austin School of Law's Capital Punishment Clinic.

Criminal justice advocates and some lawmakers have called for reform of the Texas clemency process for years, calling the current system opaque and arbitrary. Especially in the wake of high-profile cases like that of Cameron Todd Willingham, who was executed in 2004 despite serious concern about his guilt in an arson that killed his daughters; and of Tim Cole, who was exonerated of a rape conviction after he died of an asthma attack in prison, proponents of reform say the time for change is now — before Texas puts an innocent person to death. Even Gov. Rick Perry has supported past efforts to require the board to meet in public in capital clemency cases. Rissie Owens, chairwoman of the Board of Pardons and Paroles, and a member of the Huntsville school board, declined an interview for this story and did not answer written questions about calls for reform. She sent an e-mailed response outlining the board's current rules.

According to a 2005 report (pdf) by Texas Appleseed and the Innocence Network, says Grissom:

Texas is the only death penalty state that does not require the board to meet for clemency decisions, according to the report. Instead, the board’s practice is to send materials to board members across the state who make full-time salaries ranging from about $95,000 to $115,000 for chairwoman Owens. They review the information and then fax in their votes, a process the Fifth Circuit Court of Appeals upheld in 1999 in a lawsuit in which a death-row inmate unsuccessfully sued the state, claiming the clemency process was unconstitutional.

Of course, given the fact that Rick Perry has rejected clemency in most cases recommended by the Board of Pardons and Paroles, whatever criticisms one may have of their policies, they're being a lot more generous than he is!

Related Grits posts:


Anonymous said...

Texas is apparently hell-bent on giving death penalty opponents another big arguing point. That's exactly what will happen if Hank Skinner is executed w/o benefit of that DNA testing. It will look like the State has something to hide, a la the Willingham bogus arson forensics.

The State has a win/win situation by testing. DNA might show Hank guilty, then the State can say, "See, we had it right all along." Or Hank might be exonerated and the State can say, "See, our system works. We spared an innocent man from lethal injection."

Of course there is the little matter of the huge compensation that will be due Hank, incarcerated since 1993, should he be exonerated. But I hope that does not figure into the State's motivation.

Charles Kiker in Tulia

Anonymous said...


Defamation campaign by Allan Turner from the Houston Chronicle on Hank Skinner

Anonymous said...

Clemency is a discretionary process, with no inherent rights attached; with the exception of the right to be considered for clemency if the procedural rules are followed.

This issue was exhaustively examined during the Gary Graham circus. The only major change is that now only 7 Board members make a consideration, as opposed to the previous 18.

Anonymous said...

In the Texas CJ system (and perhaps elsewhere) process trumps truth and justice.

Charles Kiker
(I've lost my password)

Thomas R. Griffith said...

Hey Grits, thanks for this invaluable Post. I'll be linking to it & hopefully many others will spread it also. The public at large needs to know the ins & outs of a taxpayer-funded process that's turned into a Governors personal Secrete Service Unit.

Last year, Mr. Bennett at Defending People alerted us to the Harris County District Clerk's site where one can learn about motions filed and case info. It indicates that I applied for a Full Pardon and a Regular Pardon on 01/04/2000. It shows the District Attorney's Office filed two O/D Prosecution Motions the same date. Can one purchase copies of these motions?

My second application in 2002 and subsequent denial, isn't recorded. I know it happened due to the hoops they make you jump through.

You never forget having to go get fingerprinted 'again', paying for 'another' criminal history report and spending hours dealing with incompetent staff. Then of course I'll always remember calling and learning that I received zero votes out of eighteen the first attempt and one out of seven the second attempt.

Any ideas as to how I might find out if my case is an isolated incident and/or if there is a pattern of this 'Apply Twice and Record Once' Syndrome? Thanks in advance.

Anonymous said...

Public tired of Willie Horton?

The public might find it interesting to learn that the head of the Innocence Project was part of the OJ "Dream Team." Barry ran around saying OJ was innocent and played a major role in helping OJ beat the rap for the brutal murder he committed. That's Barry's version of innocence! And he's lecturing us?

Thomas R. Griffith said...

Ol Barry got paid big time to get a very famous and rich celeb off the hot seat. Afterwards he went home and spent the rest of his life being quizzed about his role. He obviously came to the conclusion that he could make even more money by riding the DNA gravy train. Sometimes trains run off the tracks.

The only thing I can say negatively about him is that I'm pissed that his project's cherry picking of cases has given birth to a slue of cherry picker projects. When you pick and choose, you systematically ignore the rest, which leads to more non-DNA related atrocities. Of course they have thrown in a case or two that has had absolutely nothing to do with DNA, merely by accident BTW. The goofballs in the Clemency Section also pick and choose, which makes them a joke that needs to be disbanded.

My frustration with the DNA only crowd and the Texas clemency joke of a process eventually gave birth to a tiny project that shines a light on the rest of the wrongfully convicted cases. It simply allows the 'victims of the system' a place to name names & share atrocities. Hopefully it will contribute to the criminal justice system reform movement championed by folks like Grits & Packratt.

The bad cops, rotten lawyers, rogue ADAs, & dis-honorable judges that find their names associated with the Posted police reports and certified case files, can apply for a 'Public Pardon' at PNG. Be warned that you must publicly admit to your role and submit letters of recommendation for full pardons when requested by your victim(s)and/or the Team. These bad apples can choose to ignore and hope it all goes away with retirement and death but we won’t let it.

Everyone knows good and well that there will never be a 'Public Pardon' application for that would mean that hell has frozen over. If one is filled out, we’ll let you know. Thanks.

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Anonymous said...

The State has a win/win situation by testing. DNA might show Hank guilty, then the State can say, "See, we had it right all along." Or Hank might be exonerated and the State can say, "See, our system works. We spared an innocent man from lethal injection."
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