The Supreme Court has described clemency as the “fail safe” in our criminal justice system. “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” In Oklahoma, clemency is a two-step process involving both the Pardon and Parole Board and the governor. The board is defined by law as five members.
Oklahoma’s system has double checks, like the board, to help address mistakes that may occur. Clemency alone cannot correct all mistakes, but it is a safety valve for the most egregious ones. The past tells us that the board has stepped in to exercise its authority in some death penalty cases where doubts exist or revision of sentence is warranted.
The safety valve has worked in prior death penalty cases where we have learned of serious doubts about guilt. For example, Phillip DeWitt Smith received a clemency recommendation from the board and his sentence commuted to life without parole by a Republican governor. Another example is Julius Jones. The system worked in some measure in these cases. However, Richard Glossip, in whose case the attorney general himself expressed concern over the reliability of the trial and conviction, did not receive a clemency recommendation from the board. Oklahoma is on the road to executing its first person where serious doubts of guilt have arisen. Oklahoma must take a detour off this alarming road.
Clemency should not just be granted in the rare cases where there are doubts as to guilt. There are a range of reasons why clemency is warranted. Based on my experience, multiple men on death row who have upcoming cases before the board have these other reasons present in their cases. Clemency ― a measure of mercy ― is important in our system. It should be provided for a range of reasons, which time has given the perspective to learn. In prior cases, clemency has been an effective fail safe. Those individuals who received clemency remained in prison, but did well in other correctional facilities. Turning the penalty down just one notch in appropriate cases can often be the more just result.
Glossip did not have a five-member board. This was due to an appropriate recusal, landing him with an unresolved vote of 2-2. Either a tie should be enough to recommend clemency to the governor or there should be an immediate replacement when a board member recuses.
Notably, other tribunals in Oklahoma’s justice system have replacement mechanisms for recusals. For example, a replacement judge is required on the Court of Criminal Appeals to cover recusals. The same is true for our Oklahoma Supreme Court when the number drops under seven. The board should be no different. There is more than one way to do it. What does not work is exactly what happened here; having an applicant in all practical effect start with one no vote before the case is even heard. That is manifestly unfair. Yet, that is what happened to Glossip. It should not be allowed to stand and must never happen again.
Further, the two former prosecutors on the parole board in Glossip’s case prevented his case from being sent to the governor. It is appropriate to have a former prosecutor on the board. However, for balance, one of the members should be a former defense lawyer. The Legislature has already recognized two members should have experience in mental health, social work or substance abuse services.
We, as Oklahomans, must fix what is not functioning properly in our justice system. Having no process for replacing a recused board member, and effectively deeming a recusal as a no vote, is not working to serve as a functioning safety valve. A divided vote of the board cannot lead to death. The current safety valve is failing, and we must not wait any longer to address it.
Randy Bauman led the Oklahoma Capital Habeas Unit for 10 years and appeared many times before the Oklahoma Pardon & Parole Board. He served as a public defender in the Western District of Oklahoma Federal Public Defender’s Office for 21 years. He is now of counsel with ACLU Oklahoma.
This article originally appeared on Oklahoman: Guest: Safety valve of the Oklahoma Pardon & Parole Board is failing