End Texas’ secrecy in pardons, paroles
In the darkness of an execution chamber in the Walls Unit in Huntsville one night last month a moment of clarity shone through.
As inmate Chris Young died at the hands of the state on July 17, one thing, even in that dimly lit observation room bordering the actual execution chamber, was blazingly clear.
Mercy in Texas exists only for the few, the privileged, the white and the wealthy.
The truth is that the process of clemency in Texas is so random and isolated that it effectively does not exist. Pardon and commutation exist only if the Texas Board of Pardons and Paroles executive clemency section votes to recommend relief to the governor, and the governor agrees. No one knows what rules board members follow because they are not published. No one knows what things move the board or fail to move it because it issues no opinions or statements. It keeps no records. It does not even publish minutes of members’ discussions or debates. It has nothing to say to the world when members deny a recommendation to a soul hoping for life over death, for a pardon to forgive past mistakes or for a person hoping for a chance to go home. Nothing the board does, says or discusses, other than the final vote, is recorded.
Under our law, the governor can do nothing without a favorable recommendation, and no one in this state has any idea how to persuade the board because the members operate in complete secrecy behind closed doors. With due respect to those who say this is the way things are, this needs to change.
In contrast, on the same week in Ohio, Republican Gov. John Kasich commuted the death sentence of a condemned killer when some old documents in a file kept by the Ohio Board of Pardons and Paroles showed that Raymond Tibbetts had one of the most horrific childhoods imaginable. According to the records, discovered by a juror in the actual capital murder trial, Tibbetts had been tied to his bed, starved, beaten and burned at the hands of his parents. None of this was ever presented to the jury. Instead, the prosecution actually painted an apparently false picture of a normal childhood. While none of that information excused the crime, the juror who stepped forward stated that the jury would likely have voted differently on death had this information come out at trial.
So there you have it. Imagine a state where the grants of clemency and pardon actually function as they should. The records kept by the very Board of Pardons and Parole were used to correct an improper decision about imposing the death penalty. The state actually had a pardon and commutation system that worked. Mercy could actually be granted, and the public could see it work as it was meant to be, as a final safety net for a trial court and appellate system that all too often gets things wrong because it is made up of human beings.
In Texas, where our system is cloaked in mystery and outright refusal to open up, we can continue to deny mercy based upon race, religion, class, gender, laziness and whim. Yes, here, where we lead the nation in wrongful convictions and death sentences, we can continue to rest easy knowing that our broken system of clemency will continue to keep our mistakes in the courtroom locked away or buried deep in the ground. God bless the Texas clemency system. This is especially reassuring when one considers the recent report issued by the University of Houston Law Review, which shows that in death penalty cases in Harris County for the last two decades the reviewing trial judges simply rubber stamped the state’s findings, effectively ending any meaningful review of the condemned in the biggest executioner in the country. In 95 percent of the cases, the judges just asked where their pen was when the state came calling. Why worry about justice when we have such a well-oiled clemency review, right?
Texas needs an open, reviewable pardon and commutation process. It should require simple easy forms so that inmates can understand them, clear rules as to what factors the Board of Pardons and Paroles will consider when reviewing an application, open hearings, and written opinions issued by a Board that ought to have the guts to say why they let a man or woman die or rot away. Texans deserve no less.
McCann is a local death penalty attorney and a past President of the Harris County and Fort Bend criminal bar associations.