In 1997, Duane Buck was convicted of the capital murders of Debra Gardner and Kenneth Butler. According to the Texas Code of Criminal Procedure, to sentence him to death, the jury had to decide unanimously that Buck was likely to “commit criminal acts of violence that would constitute a continuing threat to society.”
During his sentencing hearing, Buck’s lawyer called psychologist Dr. Walter Quijano to testify that Buck did not have a violent criminal history and was not a future danger to the people of Texas. Quijano was asked to explain the statistical factors he considered in making his judgment, including age, sex, and socio-economic status. In response to questions about race, Quijano said, “It’s a sad commentary that minorities, Hispanics, and black people are over-represented in the criminal justice system.”
Joan Huffman, the chief prosecutor, who’s now a Texas state senator, cross-examined Quijano and asked the following question: “You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, [being] black increases the future dangerousness, for various complicated reasons, is that correct?”
Quijano answered, “Yes.”
In her closing argument, Huffman referenced Quijano’s testimony, telling the jury that he “told you that there was a probability that [Buck] would commit future acts of violence.” The jury sentenced Duane Buck to death.
Though Buck’s guilt is not in question, his lawyers and supporters across the country contend that the state of Texas is going to kill him because he is black.
On September 13, 2011, two days before Buck’s scheduled execution, the board of Pardons and Paroles unanimously rejected his clemency petition. After Buck had eaten his last meal, the Supreme Court issued a stay, then two months later announced they would not hear his case. A new execution date was never set, and he lives, as he has since 1997, on death row.
In 1829, James Porter and George Wilson were convicted of attacking and robbing a mail carrier in Pennsylvania. Porter hanged, but Wilson, who had powerful friends, was offered a pardon by President Andrew Jackson. Except Wilson, inexplicably, didn’t want it; he never said why. The Supreme Court eventually weighed in and in 1833, Chief Justice John Marshall ruled “we have discovered no power in a court to force it on him.”
Executive clemency—the power to grant pardons, delay executions, and commute sentences—is an ancient form of mercy. The Hammurabi Code allowed husbands to pardon adulterous wives if they didn’t wish to drown them, and the Greeks’ “Adeia” provided immunity for persons condemned if 6,000 citizens voted in favor. In Rome, an automatic pardon was offered to a doomed man who, while walking to his execution, “encountered a vestal virgin.” In the Bible, clemency accounted for Cain’s exile and the fact that Barnabas didn’t also die on the cross. In the United States, the practice traces directly to English criminal law, when the king could forgive, for any reason, certain lucky subjects.
As Chief Justice William Rehnquist once said, “By the time you get to clemency, beggars can’t be choosers.”
The Supreme Court has shaped the nature of clemency in rulings throughout the nearly two centuries since Justice Marshall called it “a constituent part of our justice system.” In 1993, Chief Justice William Rehnquist wrote that clemency is a “fail-safe” in his majority opinion in Herrera v. Collins, which established that executing a factually innocent person would not violate the Constitution because clemency is “the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.”
A few years earlier, in 1988, the Court debated and eventually ruled that Willie Wayne Thompson could not be executed for murdering his sister’s abusive husband when he was 15. Justice Scalia wrote in his dissent, “The Governor of Oklahoma, who can certainly recognize a frustration of the will of the citizens of Oklahoma more readily than we, would certainly have used his pardon power if there had been some mistake here.” But since 1944, the governor of Oklahoma has only been allowed to commute a sentence or issue a pardon with a recommendation from the Parole and Pardon Board.
Many conversations surrounding clemency in capital cases focus on commutations offered or withheld by governors. However, since the red tide of executions in the 1990s and 2000s has waned, more than half of the executions between 2000 and 2015 have taken place in the 13 states where the governor’s power to commute death sentences is either limited or non-existent.
In Texas and Georgia, the “fail-safe” of clemency is not solely in the hands of an elected governor. Instead, it is diluted and dispersed to political appointees who make their own rules, which they sometimes ignore, and face few if no consequences for their decisions. That these unelected men and women are our last hope in not only maintaining the integrity of the judicial system, but in stopping wrongful executions, should worry many. Or not, as Chief Justice William Rehnquist once said: “By the time you get to clemency, beggars can’t be choosers.”
The seven governor-appointed members of the Texas Board of Pardons and Paroles evaluate clemency petitions from incarcerated persons on death row and have the power to deny them or recommend the governor grant a reprieve or commute the sentence to life in prison without parole. The only action the governor can take without the board’s approval is to grant a 30-day reprieve. The board members are not required by law to hold hearings, and mostly they don’t. Duane Buck did not receive a hearing in front of the board, and neither did the 152 people executed during George W. Bush’s six years as governor. Since 2001, the state has executed 285 people and the board has recommended clemency just four times.
Why did these boards show mercy to Foster and not Wood? Why Crowe and not Davis? We don’t know.
The boards in Idaho, Louisiana, and Arizona work similarly. In other states, like Nevada, Nebraska, and Florida, the governor is a member of the board and can wield his or her influence directly.
The Boards of Pardons and Paroles in Utah and Georgia are different from the others—their governor-appointed members have the ultimate power: Sole authority to commute death sentences. Since 2001, Utah has executed only one person; after the board refused to commute Ronnie Lee Gardner’s sentence, he was put to death by firing squad in June of 2010. During the same time period, Georgia’s board members have granted five commutations and the state has executed 34 people. To put the Georgia board’s actions in perspective: Ohio’s Governor John Kasich, a prospective Republican presidential nominee, has granted five commutations since 2011.
Georgia’s board is unique in another way. While Ohio makes its clemency reports public, and it’s fairly easy to find the clemency applications of people facing execution in Texas, according to Georgia state law, “all information, both oral and written… and all records, papers, and documents… shall be classified as confidential state secrets until declassified by the board.”
What might convince Georgia’s board to do that is anyone’s guess. Steve Hayes, the board’s Chief Public Information Officer, reiterated that the board is following state law, which allows the board to make public their votes, findings, and the rationale for their decisions. But they don’t do it very often. In March of 2015, after refusing to commute the death sentence of Kelly Gissendaner, they declassified her clemency applications. Gissendaner plotted to but did not actually kill her husband, Doug, in 1997. Gregory Owen, the man who stabbed her husband to death, is serving a life sentence. Whether the board made her petitions public because of the media attention surrounding her case—Gissendaner is the only woman on Georgia’s death row—is not known. Her March execution was postponed because of an issue with the barbiturate pentobarbital the state planned to use in her lethal injection. She remains on death row.
More than 200 years ago, Alexander Hamilton expressed his support for keeping the power of executive clemency in the hands of one person in Federalist Paper #74:
As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend the force of those motives which might plead for a mitigation of the rigor of the law, and the least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.
In states where the clemency power is at least partially invested in people who cannot be voted out of office—people whose names most voters don’t know—justice may wear, as Hamilton wrote, “a countenance too sanguinary and cruel.”
In 2014, the Georgia board issued a rare commutation for Tommy Lee Waldrip, convicted of the 1991 capital murder of Keith Evans, who had planned to testify against Waldrip’s son in his armed robbery trial. When officials in Dawson County, where Evans was murdered, requested access to the materials the board used to make their decision, they were denied.
As of this publication, I have not been able to find any documentation that the Georgia board has declassified information on a clemency decision other than Gissendaner’s in the last decade.
In his explanation of the “fail-safe” of clemency, Rehnquist noted in Herrera v. Collins that it is needed because “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” It’s hard not to consider the imperfectness of the judicial system when appeals courts have refused defendants access to evidence for DNA testing and declared that, while the defense was not informed of plea deals offered to accomplices in exchange for their testimony, or no evidence actually connected the person to the crime, “nevertheless” a conviction and death sentence would stand.
When the Supreme Court put a national moratorium on the death penalty in 1976 in their decision in Furman v. Georgia, Justice Potter Stewart wrote in his concurring opinion of the “wantonly” and “freakishly” way defendants are “capriciously selected” for death. The same can be said of the freakishly capricious way today’s clemency boards choose whom to save from lethal injection.
“It is unclear how the board can document that its procedures are not arbitrary if it does not document its procedures at all.”
In 2007, the Texas board recommended clemency for Kenneth Foster, who was sentenced to death under the state’s law of parties because, as the law demands, he “should have anticipated” that someone would die when he and three others planned an armed robbery. Foster was driving the getaway car home after the group committed two robberies when Mauriceo Brown left the vehicle and shot and killed Michael Lahood on the side of the road. The board voted 6-1 to recommend commuting Foster’s sentence, and Governor Rick Perry concurred.
Less than a year later, the board unanimously rejected clemency for Jeffrey Wood, who was convicted under the same law. Wood and an accomplice had planned to rob a convenience store. While Wood waited in the parking lot, the accomplice shot and killed the attendant, Kris Keeran. Though Wood, like Foster, neither planned nor committed murder, the board refused to recommend commuting his sentence. Soon after the board’s refusal, a federal judge issued a stay of Wood’s execution, based on the fact that he had initially been found incompetent to stand trial—an issue raised in his clemency petition. He remains on death row.
In 2008, the Georgia board commuted Samuel David Crowe’s death sentence. Though he pled guilty to murder, local media reported that testimony from friends and a former corrections officer of his “exemplary behavior and deep remorse” seemed to convince the board to spare his life. In fact, there’s video by Lindsay Campbell, a reporter from Moblogic.tv, who had been following Crowe’s case and was interviewing Paul Czachowski, the Georgia Diagnostic Prison Office of Public Affairs, when the decision from the board came down. His surprise at finding out the news, shown at 03:15 in the video, is almost comical.
Why remorse was enough to save Samuel David Crowe’s life and not Troy Davis’s is a mystery. In 2011, the Georgia board refused to grant clemency to Davis, who pled not guilty to the 1989 murder of off-duty police officer Mark Allen McPhail. By the time Davis went before the board, seven of the prosecution’s nine witnesses had recanted. No murder weapon or DNA evidence linked him to the crime. Prior to his hearing, the Supreme Court, for the first time in 50 years, ordered the US District Court for the Southern District Court to consider new evidence that might prove Davis’s innocence. Though the lower court admitted some doubts about Davis’s guilt, they called his new evidence “smoke and mirrors” and refused to alter his fate. Davis, who used his last words to proclaim his innocence, was executed on September 21, 2011.
Why did these boards show mercy to Foster and not Wood? Why Crowe and not Davis? We don’t know. And we cannot and should not be comforted by the idea that because clemency is considered an extrajudicial form of grace, we don’t have a right to know.
As Mike Ward reported for the Austin American Statesman in 1998, Western District Court Judge Sam Sparks, a Bush appointee, begrudgingly upheld the secretive procedures of the Texas Board of Pardons while excoriating their refusal to hold hearings or explain their decisions, saying: “It is unclear how the board can document that its procedures are not arbitrary if it does not document its procedures at all.”
Duane Buck is just one of hundreds of condemned people who have begged these powerful, well-paid political appointees to save his life.
This was just one year before John Cornyn, then Texas’s attorney general and now a US Senator, declared in 2000 that the state had relied on Dr. Quijano’s assertion that a person’s race was linked to their dangerousness in six trials, including Duane Buck’s. To do right, in essence, Cornyn vowed not to contest the defendants’ appeals, and he supported new sentencing hearings for all.
In 2001, Cornyn testified, alongside a representative from the Harris County District Attorney’s Office, in support of Texas Senate Bill 133, which added the following language to the state’s criminal justice statutes: “[E]vidence may not be offered by the state to establish that the race or ethnicity of the defendant makes it likely that that the defendant will engage in future criminal conduct.”
The bill was passed and signed into law. Yet Duane Buck, whose case inspired it, and whose name was mentioned often in public hearings on the law, is the only defendant of the six not to receive a new sentencing hearing. The Texas Board of Pardons and Paroles knew this information; it was included in his clemency petition. The Board seemingly didn’t care.
While doubts about guilt and an unjust law that allows people to be executed who did not commit murder have failed to sway the members of clemency boards, so too have pleas been unpersuasive from popes, secretaries of state, foreign presidents, prosecutors, and victims’ families.
Norman Fletcher, former Chief Justice of the Georgia Supreme Court, appeared in person before the state’s board, asking them to spare the life of one Curtis Osborne. Osborne, a cocaine addict with major depressive disorder, was convicted in 1990 of the murders of Linda Seaborne and Arthur Jones. Though Fletcher once voted to uphold Osborne’s death sentence, he explained to the board that the specific legal issue he considered in Osborne’s appeal was the legitimacy of the death penalty, not the fact that Osborne’s indigent defense lawyer, Johnny Mostiler, failed to present mitigating evidence of Osborne’s abusive childhood or his mental health, which, Fletcher wrote in an earlier letter to the board, meant “we cannot rely on the decision [the jury] reached.”
Fletcher also expressed concern that Mostiler allegedly never informed his client that the state had offered a plea deal, and that Mostiler had said of Osborne to another client, “that little nigger deserves the chair.” Despite pleas from Fletcher and former President Jimmy Carter, the board rejected Osborne’s clemency petition. After state officials spent 35 minutes trying to find a vein, he was executed on June 4, 2008.
It should come as no surprise that in Texas, which has executed 524 people since 1976, similar appeals have fallen on uninterested ears.
The person pleading on Duane Buck’s behalf is Linda Geffin, the Harris County assistant district attorney who helped send him to death row. In her September 2011 letter to the Texas Board of Pardons and Paroles, Geffin wrote:
I felt compelled to step forward. Mr. Buck committed a terrible crime, and he must be punished. But the Attorney General was right when he said that ‘it is inappropriate to allow race to be considered as a factor in our criminal justice.’ It is regrettable that any race-based considerations were placed before Mr. Buck’s jury. No individual should be executed without being afforded a fair trial, untainted by considerations of race.
In public appearances since, Geffin has cited a study of the Harris County District Attorney’s Office that showed how, from 1992 to 1999, prosecutors were three times more likely to seek the death penalty for black defendants than white.
Did anyone really expect the board to recommend commuting Duane Buck’s sentence? In the case of Delma Banks Jr., they refused to even accept his clemency petition because it arrived five days past the deadline—even though there were still 16 days before his scheduled execution date and the deadline wasn’t law: it was created by the board. Banks was convicted of killing 16-year old Richard Whitehead in 1980. He is only alive today because 10 minutes before he was led to the gurney, the US Supreme Court issued a stay and eventually ruled that the prosecutors’ and sheriffs’ misconduct in his case was so outrageous—all points made in his clemency petition—he deserved a new trial. Banks accepted a plea deal for a life sentence in 2012, though he maintains, as he has for the past 35 years, that he is not guilty.
The fact is, the boards in Georgia and Texas have not adopted guidelines for making clemency decisions in capital cases and the representatives and senators in their state legislatures haven’t required them to do so. It’s only when people on death row have challenged their processes that we’ve learned anything about how they operate.
The notion that mistakes made in the judicial system will be righted by the fail-safe of clemency is lethally incorrect.
In 1999, Joseph Stanley Faulder, a Canadian citizen on Texas’s death row, challenged the board’s refusal to hold a hearing to consider his clemency petition. According to a report from Amnesty International, “Killing Without Mercy: Clemency Procedures in Texas,” Brett Hornsby from the board’s Executive Clemency Unit testified at the hearing that “virtually none of the letters from the public on death penalty cases are forwarded to board members,” and board member Juanita Gonzalez admitted she voted against clemency for Faulder less than two hours after receiving his petition, which was four inches thick. When asked, members could not explain what they looked for in a petition that might make them consider clemency. According to the Amnesty Report, “few of the members could recall until prompted that their clemency authority also extended to investigating claims and convening hearings.” This evidence directly refuted then-chairman Victor Rodriguez’s assurances that “with no specific criteria established by state law or the constitution, the board can review anything and everything an inmate wants to submit—absolutely anything. I think that’s the fairest system.” Faulder was executed on June 17, 1999.
The Georgia Board has faced similar legal challenges. Fred Gilreath, convicted of murdering his wife, Linda, and her father, Gerrit Van Leeuwen in 1979, filed a complaint against the board in 2001. It concerned the fact that board member Gene Walker was in Las Vegas during Gilreath’s clemency hearing and didn’t hear testimony from people who spoke on his behalf, including his and Linda’s son and daughter, who begged the board to save their father’s life. According to the Atlanta Journal Constitution, Walker then refused to listen to a recording of the hearing before faxing in his vote. Gilreath also claimed that Board chairman Walter Ray and another member, Bobby Whitworth, voted against him to try to curry favor with the attorney general, who was investigating them for using their positions to lobby for privatizing the parole process, earning them hundreds of thousands of dollars. The 11th Circuit Court of Appeals ruled against Gilreath, saying that Walker had seen his file and another member summed up the hearing for him, and that the attorney general had played no role in the clemency hearing, so there was no currying of favor to be had. Gilreath was executed in December of 2001.
Ray and Whitworth resigned in 2002, and Whitworth eventually served six months in prison for public corruption.
Duane Buck is just one of hundreds of condemned people who have begged these powerful, well-paid political appointees to save his life.
While the Supreme Court’s stay on September 15, 2011, saved Buck’s life, the justices eventually agreed with the state’s attorney general, Greg Abbott, who argued that because Buck’s lawyers—not the prosecution—were the ones who called Dr. Quijano to testify, his rights weren’t violated. Justices Alito, Scalia, and Breyer noted in their opinion, erroneously, that in the other cases tainted by Quijano’s testimony on the inherent future dangerousness of black people, all deserved new sentencing hearings because the prosecution had incited Quijano’s testimony. In reality, the defense called Quijano in three of the six cases, a point that Justices Sotomayor and Kagan made in their dissent.
Earlier this year, a bipartisan coalition of representatives in the Georgia State Legislature introduced House Bill 71, which would’ve required the board to make public each member’s votes, as well as all of the records, papers, and documents it considered when commuting capital sentences and when granting parole and reinstating firearm rights to people who had previously had them revoked.
The legislation was co-sponsored by State Representative Kevin Tanner, who was working as a deputy in the Dawson County sheriff’s office when Tommy Waldrip murdered Keith Evans; Waldrip, who received a rare commutation in 2014. The bill, however, was amended on its way to the governor’s desk. What’s left requires the board, when commuting a capital sentence, to include its “findings which reflect the board’s consideration of the evidence offered that supports the board’s decision.” But the board may interpret that new requirement—it’s only applicable when clemency is granted. The people of Georgia will still not know why the board refuses to commute a death sentence. And its members will still continue to act in secret, refusing, like their brethren in Texas, to explain why executing people who are mentally ill, people whose trial lawyers were ineffective and drunk, somehow serves the citizens of their states.
George Wilson’s refusal to accept President Jackson’s mercy nearly two centuries ago was an anomaly. The notion that mistakes made in the judicial system will be righted by the fail-safe of clemency is lethally incorrect.
There is no pending execution date for Duane Buck, who is just one of 266 people on Texas’s death row. If a date is set, he’ll have the opportunity to petition the board again. Even if it were to recommend mercy, Greg Abbott, who successfully fought Buck’s appeals as the state’s attorney general, is now the state’s governor and will have final say.