USA | 2024 was not a good year for death row inmates seeking mercy: Opinion

On Dec. 19, Kevin Ray Underwood became the last person executed in 2024. Oklahoma put him to death for the 2006 murder of 10-year-old Jamie Rose Rolin.

Six days earlier, the Oklahoma Pardon and Parole Board met to consider Underwood’s request for clemency. He appeared via video conference and “apologized to Bolin’s family, his family, and those in the hearing room who had to listen to the details of the crime.”

Underwood told the board that he has “blocked out most of his memory of that day. ‘But when I do think about it, it causes me great pain.’”

His lawyers tried to save Underwood’s life by convincing the board that “he is a ‘profoundly ill man’ worthy of mercy.” They argued that his sentence should be commuted because of “the childhood trauma, undiagnosed autism spectrum disorder, bipolar disorder, PTSD, social phobia, and other mental health challenges he faced.”

Assistant Attorney General Aspen Layman, representing the state, branded their narrative a “‘revisionist history’ of Underwood’s past that was being used to justify mercy on his behalf.” Layman argued that Underwood “should be shown the same mercy he showed Bolin — none at all.”

“While we, as an enlightened society, can give grace to those struggling with mental illness,” he went on, “we can still expect them to refrain from planning the murder, rape, torture, and cannibalism of 10-year-old little girls.”

The board agreed and voted unanimously to deny clemency.

Underwood was not alone in losing his fight for mercy that year. Although former President Joe Biden made 2024 memorable for death row inmates by commuting the sentences of 37 federal inmates awaiting execution, and although exiting North Carolina Gov. Roy Cooper (D) made headlines with a last-minute commutation of the sentences of 15 of his state’s 136 death row inmates, Underwood’s case was more typical.

But for Cooper’s action, 2024 would have been the first year since 2016 in which no state granted clemency to any inmate on death row.

In place after place, clemency boards and governors turned deaf ears to claims that miscarriages of justice, mental illness or rehabilitation justified mercy. If they are to have more success in the future, lawyers representing death row inmates will have to adapt new strategies and focus on educating clemency boards and governors about the special place of mercy in the death penalty system.

To put 2024 in context, we should note that over the last half century, it has never been easy for inmates on death row to get clemency. For example, in 2023, only one of them succeeded when Maryland Gov. Larry Hogan (R) pardoned John Huffington on the grounds that his “convictions were in error.”

In 2021, another year with just one capital clemency, only Oklahoma Gov. Kevin Stitt (R) commuted the death sentence of Julius Jones based on “concerns about Jones’ age at the time of the offense and serious doubts as to his guilt.”

Since 1976, 365 death row inmates have received clemency at the state and federal levels. That may seem a sizable number, but as law professors Carol and Jordan Steiker note, “The modern era of American capital punishment … saw a stunning drop in the use of capital clemency, which had been a substantial and routine practice … even in states that used the death penalty the most.”

And, in the modern era, when governors did grant clemency to death row inmates, they often were, like Biden’s, mass clemencies issued as a step toward abolishing the death penalty in their states.

Examples include what New Mexico Gov. Tony Anaya (D) did in 1986 when he emptied his state’s death row by granting clemency to five men. New Mexico abolished the death penalty in 2009.

In January 2003, Illinois Gov. George Ryan (R) pardoned four people and commuted the sentences of 167 death row inmates. Illinois abolished the death penalty eight years later.

Other mass commutations of death sentences occurred in New Jersey in 2007 and in Oregon in 2022. Both were quickly followed by the death penalty ending in those states.

Over the last 50 years, only about one-third of the clemencies granted have been based on individualized determinations. In those cases, executive officials “most often cite disproportionate sentencing, possible innocence, and mitigation factors such as intellectual disability or mental illness as reasons to grant clemency in capital cases.”

But none of that mattered in 2024 until Cooper’s eleventh-hour decision.

Earlier in the year, it looked like Oklahoma would break the 2024 clemency drought when, in August, the Pardon and Parole Board voted 3-2 to recommend clemency for Emmanuel Littlejohn. His lawyers convinced them that Littlejohn had been treated unfairly because his co-defendant received life in prison without parole, whereas Littlejohn got a death sentence.

But Gov. Stitt was not persuaded. He explained why he did not follow the board’s recommendation: “A jury found him (Littlejohn) guilty and sentenced him to death. The decision was upheld by multiple judges. As a law-and-order governor, I have a hard time unilaterally overturning that decision.” Littlejohn was executed on Sept. 26.

Arguments about innocence and racial bias fared no better in motivating state officials to grant clemency this year.

Take the case of Marcellus Williams, about whom I wrote last August. Convicted in Missouri of the 1997 murder of Felicia Gayle, Williams’ conviction was “based on the testimony of two eyewitnesses who were paid for their testimony. No DNA evidence linked him to the crime.” If that was not bad enough, race played a role in jury selection, with the prosecutor striking six prospective Black jurors, leaving only one to serve.

Gov. Mike Parson (R) still denied clemency, justifying his decision by saying that Williams had “exhausted due process and every judicial avenue.” Williams was put to death in September.

Parson, like Stitt, confused what courts do in capital cases with what clemency allows governors to do.

The Steikers blame what they call “an unjustified complacency.” Judicial review, they suggest, should not “displace … the need for actors outside of the judiciary to reinforce the commitments of the (Supreme) Court’s death penalty jurisprudence.” Even former U.S. Supreme Court Chief Justice William Rehnquist, an ardent supporter of capital punishment, recognized that clemency was a “fail safe” in our “fallible” judicial system.

Ironically, the almost complete failure of governors to grant clemency in capital cases this year may reflect the progress abolitionists have made in changing public attitudes about the death penalty. That change has, in turn, made it harder for prosecutors in Oklahoma, Missouri and elsewhere to persuade juries to impose new death sentences.

As that has happened, officials in states that retain capital punishment have become more reluctant to give up on the death sentences they have already obtained. As this country gets closer to abolishing death as a punishment, that progress does not bode well for the inmates on death row who will ask to have their lives spared in 2025.

Source: The Hill, Austin Sarat, January 27, 2025

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde