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:

• Public tired of Willie Horton? Whither 21st century clemency?
  
• Perry's Christmastime pardons an odd mix, short list
  
• Clemency in the Rick Perry era
• "The quality of mercy is not strain'd," particularly when it doesn't have to do any heavy lifting