Op-Ed as published in the Houston Chronicle:
The Legislature is done for another 18 months. That means, to paraphrase one 18th-century wit, that for a time, our lives, liberty and property are safe. However, the end of their session is not the end of the fight for fair treatment and open government in the process of pardons and commutations.
Pardons and commutations are an old executive privilege, one that originated as an act of grace from the kings of old. We tossed out kings a long time ago here in Texas, but we kept one of the more moral features of that old system – the right of our elected leadership to dole out mercy. We love our jury trials here, but they often get it wrong, sadly.
That is why we have appellate courts. It is also why we kept the right of leaders to grant reprieve.
Often, one sees that mercy displayed (well, truly, more often it is not displayed) when a person comes up for execution in Texas. At that time, the Board of Pardons and Paroles, in the Executive Clemency section, will vote for or against a recommendation for commuting (an old word meaning, “to change”) a sentence from death to one of life in prison.
The governor can only grant such a request if the board returns a favorable vote, and those are few and far between. I know because my colleagues and I obtained one such recommendation for a condemned man once in 2009. Gov. Rick Perry chose not to grant that request, though he had granted a tiny handful over his years in office. I mention this so that the reader knows I am familiar with the process first-hand, not as an academic study.
His record, and frankly, the board’s, was even more abysmal in terms of granting pardons or commutations on noncapital cases. Every year of his term in office, Perry and the board (all members were appointed by Perry) received hundreds of applications from nonviolent offenders who had served out their time and reformed, or who had been sentenced for heavy terms of years for minor crimes.
Each year, the board routinely rejected the majority of applications for minor technical reasons having nothing to do with the merits, then voted to recommend a small handful of applications, the majority of which the governor then denied.
In 2013, for example, the board received 632 applications for commutations, pardons and restorations of civil rights. The board only voted on one application for commutation out of 106. It recommended denial. Out of 17 applications for pardons based on actual innocence, it recommended zero. Out of 20 applications for conditional pardons it recommended, you guessed it, zero. Out of 300 applications for general pardons, only 44 received a vote from the board recommending relief.
The rest were sent back for reasons unknown, often called “technical compliance.” A total of 46 applications actually got the rare privilege of a recommendation from the board. Of those, Perry granted 12. Twelve. So, about 2 percent of applicants get relief, based on an executive’s whims.
I say whim because the process has always been a complete mystery to all the folks who apply, regardless of whether they have a lawyer’s help. There are no written opinions issued by the board, or public meetings where the debates among the parole board can be heard.
The governor rarely expresses his opinions or reasons for denial except for an occasional good moment of political theater on an execution date. The rules are opaque and the board meets in secret, with no requirement that its decisions or its reasoning even be communicated to the applicant. But it doesn’t have to stay this way. It is time now for a new governor to begin issuing such decisions, and perhaps, to change how the process works.
Our new governor, Greg Abbott, is an attorney and a former judge with a long history of judicial opinion writing. While not all of us in the legal profession always agree on everything, the value of a clear, transparent process and written public opinions as to why a person was refused or granted a commutation or a pardon would be a welcome change from the last two decades of merciless rejection shrouded in the secretive fog that blinds democracy.
That is something this governor can do, and should do now. We should all challenge him to do so, and to open the process once again so that the people of Texas can actually understand how and when mercy is given, or taken away.