Kentucky Alone In Lack of Formal Clemency Procedure

Jul 6, 2013

LOUISVILLE, Ky. -- The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.

A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators.

"The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."

Since the reinstatement of the death penalty in 1976, two condemned inmates in Kentucky have gotten reprieves and right now, the state is barred from executing anyone until a judge decides on the legality of the drugs used. The state has executed three people in that time.

Two death row inmates are challenging that power and the way the clemency system itself is set up.

Robert Foley and Ralph Baze are awaiting execution for multiple killings. They filed suit in May in Franklin Circuit Court, asking a judge to halt executions until a new set of procedures will clearly spell out rules.

The attorney for the inmates, Meggan Smith, said if the clemency procedures were more open, inmates seeking a commutation or pardon may have a better chance and everyone involved would better understand how the decision is made.

"What we are seeking is an open, transparent procedure, which will benefit the Commonwealth, victims' families, those seeking clemency, and the public in general," Smith said.

Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri.

In response to the inmates' lawsuit, Assistant Attorney General Clay Roberts said courts have upheld the system in place in Kentucky and that it captures the heart of clemency proceedings: to "grant clemency as a matter of grace."

"The minimal due process required is simply that the executive decision on granting clemency is not completely arbitrary," Roberts wrote.

Ruckman found the challenge to the clemency process novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.

Thirteen states - Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, Montana, Oklahoma, Pennsylvania, South Dakota and Washington - mandate a hearing when a clemency petition is filed.

Fifteen states - California, Georgia, Idaho, Louisiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New York, Tennessee, Texas and Utah - grant the governor or pardon board discretion to set a hearing when they determine one is necessary.

Two states - Alaska and Colorado - provide victims or others the opportunity to submit written comments on pending clemency petitions. Two states -Iowa and Kansas - permit a pardon board or governor to interview key witnesses concerning a petition.

Other states have a mix of processes, with the governor having to explain clemency decisions to lawmakers in some cases, while states such as South Carolina have an outside board make clemency decisions.

The president has almost unlimited discretion to grant clemency under the federal system.

"When all is said and done, Kentucky leans toward the federal model," Ruckman said.

Kentucky governors have used the clemency power twice.

Gov. Paul Patton in December 2003 commuted to life in prison the death sentence of Kevin Stanford, who was 17 at the time of 20-year-old Barbel Poore's slaying in 1981 in Louisville. Patton cited Stanford's age at the time of the crime.

"I believe that there is probably an element of immaturity in a juvenile which makes the death penalty unjustified even though the crime was heinous," said Patton.

Gov. Ernie Fletcher commuted the sentence of James Earl Slaughter in December 2007, finding his defense counsel so deficient that the attorney did not know his client's real name. Slaughter, who also goes by Jeffrey DeVan Leonard, was convicted of killing Ester Stewart of Louisville in 1983.

As for when Kentucky executions will resume, a judge in Frankfort is weighing whether a new single-drug or two-drug lethal injection process adopted by the state passes legal muster.

Should the method be approved, Gov. Steve Beshear, who is serving his last term in office, has requests to set execution dates for Foley, convicted of six killings in Laurel County in 1989 and 1991, and Baze, convicted in 1992 of killing a sheriff and deputy.

Douglas Berman, an Ohio State University law professor who blogs about sentencing and clemency issues, said "lame duck" governors are more likely to commute a death sentence because they don't face the "standard political calculations" facing someone who has another term in office or an election looming.

"The political comfort is there," Berman said. "Those are the moments at which ... a governor recognizes they are going to have an opportunity to do something the new folks may not be able to do."

But, given the nature of the crimes in question, it seems unlikely that Foley or Baze would be granted clemency, even if they win the suit, Ruckman said.

"You've got a governor with a lot of power and very little historical use of it," Ruckman said. "That's not a small thing."