Louisiana hasn’t executed anyone for more than a decade. So the timing may seem strange for 56 people from the state’s death row to file clemency applications with Gov. John Bel Edwards.
Yet every time a governor leaves office, the outgoing administration receives such filings.
The governor’s ability to grant clemency in capital cases provides the final safeguard from death at the government’s hands. His authority to grant clemency in capital cases is so sacrosanct that judges instruct every capital jury in Louisiana, using words from the Louisiana Constitution, that “the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority . . . commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole.”
In June, 56 people from death row filed petitions, asking for the very clemency spelled out in the state Constitution, to commute their death sentences to life-without-parole sentences.
People convicted of a variety of crimes, including those under death sentences, routinely seek clemency from an outgoing governor. This is an expected process. The idea is that a governor on his way out of office can use the experience of his years in office to weigh all the circumstances that may warrant a grant of mercy — and at a time when he does not face the pressures of pursuing reelection.
A surge in such petitions is expected for any governor leaving office. And any clemency petition routinely goes to the Louisiana Pardon Board for a hearing. If all goes as expected.
But this time, it didn’t. On July 26, the Louisiana Pardon Board returned all 56 of these applications wholesale, without even considering one merit of a condemned prisoner’s claims.
The Pardon Board has great discretion to hear any case. So why is it trying to avoid these?
The answer appears to come from a problematic source: Attorney General Jeff Landry.
In an unusual set of circumstances, attorneys from Jeff Landry’s office are simultaneously acting as (1) the Attorney General providing ostensibly neutral official opinions to government bodies who request them; (2) the prosecuting attorney on the criminal cases of several of the capital clemency applicants; and (3) the attorney for the Pardon Board.
Despite these obvious, multiple conflicts of interest, in mid-July, on the heels of the 56 death-row petitions, Landry sent a written opinion to the Board “instructing” them on timing rules for capital-clemency cases.
Landry’s opinion is not binding for the Board. But the Board relied on this opinion in rejecting the applications as “untimely.”
The problem is that Landry’s opinion is plainly wrong.
In line with Landry’s instructions, the Board pointed to Pardon Board Policy 203, which allows a capital clemency application to be filed within a year after direct appeal. But Policy 203 simply says the prisoner “may” file during this window, it does not require him to do so.
A second time frame, embodied in L.A.C. 22:V.213.B and Pardon Board Policy 207, provides the outer limit for filing such applications, stating that they must be filed no later than 21 days before an execution date. But that same rule, Policy 207, expressly states that the Governor may direct the Board to place a capital clemency application on its docket “at any time.”
Nothing in these rules blocks someone under a death sentence from seeking clemency at a different time, such as from an outgoing governor.
The Board’s summary rejection of these 56 clemency applications also ignores the profound problems in Louisiana’s death penalty system. Because of these entrenched issues, I recently joined with a diverse group of more than 250 Louisiana attorneys to urge the Board to grant clemency to those on death row.
Our letter detailed many of the deeply troubling realities of Louisiana’s death penalty system, including its extreme racial bias, its intolerable error rate that has led to at least nine innocent people being exonerated from death row in the past 25 years, stark geographical disparities that underscore its arbitrariness, and the prevalence of intellectual disability, serious mental illness, and youth among those sentenced to death.
It was precisely these problems, and many more, that led Edwards to ask the Louisiana Legislature, unsuccessfully, to abolish the death penalty earlier this year.
As the Governor said then about the death penalty: “It doesn’t deter crime. It isn’t necessary for public safety. And more importantly, it is wholly inconsistent with Louisiana’s pro-life values as it quite literally promotes a culture of death.”
The Legislature’s failure to act on the governor’s request, despite the death penalty’s troubling realities, only underscores the importance of the gubernatorial clemency process. In the face of the Pardon Board’s failure to act, Governor Edwards must preserve the inviolability of the state’s clemency process by using his power to direct that the applications be placed on the Board’s docket. Then, the Board should recommend the commutation of all 56 applicants’ death sentences to life in prison without parole and promptly send these recommendations to the Governor.
Edwards has stated quite clearly his belief that Louisiana’s capital punishment system is deeply flawed and conflicts with his Catholic, pro-life values. The Governor is entitled to follow his values, to exercise his constitutional power to remedy injustice and to commute sentences.
Edwards granting clemency to these 56 people would both acknowledge Louisiana’s broken death-penalty system and serve the pursuit of justice in our state.
James E. Boren is a longtime Baton Rouge criminal defense attorney who taught a Capital Punishment course at LSU Law School for more than a decade.