When the Oklahoma Pardon and Parole Board determined to not advocate clemency for demise row inmate Richard Glossip, the case highlighted the function clemency performs within the demise penalty system.
Glossip had requested the board to commute the sentence he had been given for his function in an alleged murder-for-hire plot. He was convicted of paying his co-defendant, Justin Sneed, to kill Barry Van Treese in 1997. Van Treese owned the motel the place Glossip was the supervisor.
The board, which met April 26, 2023, was break up 2-2 over recommending that Glossip’s sentence be modified to life in jail. The fifth member of the board recused himself as a result of his partner was concerned in Glossip’s prosecution. A majority vote of three is required for a good clemency advice.
From the beginning, Glossip, who had by no means earlier than been arrested for any crime, maintained his innocence. His case has attracted huge consideration, together with from a few of Oklahoma’s most conservative Republican legislators, who contend that if the state places him to demise it will likely be executing an harmless man.
Oklahoma’s case towards Glossip rested on the testimony of Sneed, who was induced to be a witness with a promise of a lowered sentence. As well as, the prosecution destroyed proof that will have supported Glossip’s declare of innocence, and new witnesses have come ahead who additional undermine confidence within the verdict.
An unbiased investigation by a regulation agency engaged by state legislators concluded that “no affordable juror listening to the entire file would have convicted Richard Glossip of first-degree homicide” and that his trial couldn’t “present a foundation for the federal government to take … [his] life.”
Even the state’s Republican legal professional basic, Gentner Drummond, has mentioned Glossip might be harmless and that “it could be a grave injustice to permit the execution of a person whose trial was suffering from many errors.”
Drummond requested the Oklahoma Court docket of Legal Appeals to vacate Glossip’s conviction and grant him a brand new trial. The courtroom refused on April 20, 2023, which led to the parole board listening to the next week.
As somebody who has studied the historical past of clemency in capital circumstances, I see three components that make this case noteworthy: Legal professional Normal Drummond’s actions, the try to make use of clemency to forestall a miscarriage of justice, and the truth that grants of clemency in demise circumstances are as we speak fairly uncommon.
The function of the legal professional basic
Clemency hearings like Glossip’s are proceedings during which opposing sides – representing the condemned and the federal government prosecutors – current proof and arguments. In Oklahoma, relations of the sufferer are additionally given time to make their views identified.
In 1998, the U.S. Supreme Court docket gave its approval to that type of process when it held that clemency hearings should afford due course of to the members. The courtroom mentioned the condemned individual should be given a chance to persuade a clemency board that the federal government mustn’t put them to demise – simply as the federal government will get to defend its choice to take action.
And, as my analysis signifies, that’s what the federal government has nearly all the time finished when its representatives take part in such a course of.
However not within the Glossip case. Drummond, his state’s high prosecutor, took the unprecedented step of siding with the petitioner – even towards different state officers.
“I need to acknowledge how uncommon it’s for the state to help a clemency utility of a demise row inmate,” Drummond instructed the Pardon and Parole Board. “I’m not conscious of any time in our historical past that an legal professional basic has appeared earlier than this board and argued for clemency. I’m additionally not conscious of any time within the historical past of Oklahoma when justice would require it.”
Clemency as grace – or justice
I imagine Drummond’s reference to justice would have shocked a lot of this nation’s founders.
For them, doing justice was a matter for the courts. Clemency was about one thing else.
In United States v. Wilson, a choice from 1833 and the primary case about clemency to be determined by the USA Supreme Court docket, Chief Justice John Marshall made that distinction clear. As an alternative of equating clemency and justice, he referred to as clemency an “act of grace, continuing from the facility entrusted with the execution of the legal guidelines.”
Clemency, Marshall continued, “exempts the person on whom it’s bestowed from the punishment the regulation inflicts for against the law he has dedicated. It’s … delivered to the person for whose profit it’s supposed, and never communicated formally to the courtroom.”
Slightly greater than 20 years after Marshall wrote that, one other Supreme Court docket justice, James Wayne, bolstered this separation of clemency and justice. He famous that clemency was about “forgiveness, launch and remission.” Wayne mentioned it was a “work of mercy … [that] forgiveth any crime, offense, punishment, execution, proper, title, debt or obligation, temporal or ecclesiastical.”
However over the course of American historical past, each public and judicial understandings of the aim of clemency have modified, with grace, forgiveness and mercy being changed by justice.
Clemency, particularly in capital circumstances, has come to be related nearly completely with correcting errors made in trials and different authorized proceedings. Clemency hearings are actually typically simply one other enviornment to which inmates like Richard Glossip can enchantment for justice.
This view reached its peak within the 1989 Supreme Court docket choice Herrera v. Collins, during which the courtroom mentioned that “A correct treatment for the declare of precise innocence … can be government clemency” – a commutation or a pardon granted by a governor or the president.
Clemency, the courtroom continued – utilizing language that neither Marshall nor Wayne would have acknowledged – “is the historic treatment for stopping miscarriages of justice the place judicial course of has been exhausted.”
One instance of this use of clemency occurred in 1998, when Gov. George W. Bush commuted the demise sentence of Henry Lee Lewis after what Bush mentioned had been “critical issues … about his guilt on this case.”
Clemency is uncommon in capital circumstances
Glossip, joined by Legal professional Normal Drummond, sought clemency within the hope of stopping a miscarriage of justice just like the one Bush cited as a purpose to save lots of Lewis’ life. Given the information of Glossip’s case, what the Pardon and Parole Board did shocked many observers. However, from the angle of clemency’s latest file in capital circumstances, the end result mustn’t have been stunning.
As my analysis has proven, a century in the past clemency was granted in about 25% of capital circumstances. However in more moderen years, in keeping with the nonprofit Dying Penalty Info Heart, clemencies in capital circumstances have been “uncommon.” The middle notes, “Other than the occasional blanket grants of clemency by governors involved concerning the total equity of the demise penalty, lower than two have been granted on common per 12 months since 1976. In the identical interval, greater than 1,500 circumstances have proceeded to execution.”
Whereas the middle doesn’t point out how typically clemency was sought in these circumstances, requesting clemency is usually an ordinary a part of the efforts demise penalty protection attorneys make to attempt to save their shoppers.
It’s exhausting to get clemency in capital circumstances as a result of, as the middle explains, “Governors are topic to political affect, and even granting a single clemency can lead to harsh assaults.” Because of this, “clemencies in demise penalty circumstances have been unpredictable and immune from evaluation.”
And what’s true nationwide can be true in Oklahoma the place throughout the previous half-century there have been solely 5 grants of clemency in capital circumstances.
Following the denial of clemency, Glossip’s attorneys have promised to preserving preventing and are asking each state and federal courts to remain his execution. In the meantime Gov. Kevin Stitt has mentioned he’ll do nothing to delay Glossip’s date with demise.