Then the Oklahoma Pardon and Parole Board decided not to recommend clemency for death row inmate Richard Glossip, the case highlighted the role leniency plays in the death penalty system.
Glossip had asked the board to commute the sentence he had received for his role in an alleged murder-for-hire plot. He was convicted of paying his co-defendant, Justin Sneed, to kill Barry Van Treese in 1997. Van Treese owned the motel where Glossip was the manager.
The board, which met on April 26, 2023, was divided 2-2 on the recommendation that Glossip’s sentence be changed to life in prison. The fifth board member has withdrawn because of his husband was involved in the prosecution of Glossip. A favorable leniency recommendation requires a majority of three votes.
Because Oklahoma law does not allow leniency without a positive recommendation from the board of directors, her decision sets the stage for Glossip’s execution on May 18.
From the start, Glossip, who had never before been arrested for any crime, maintained his innocence. His case has attracted a lot of attention, including from some of Oklahoma’s most conservative Republican legislatorswho claim that if the state puts him to death, it will executing an innocent man.
Oklahoma’s case against Glossip rested on the testimony van Sneed, who was persuaded to testify with a promise of a reduced sentence. also the prosecution destroyed evidence that would have supported Glossip’s claim of innocence, and new witnesses have come forward further undermining confidence in the verdict.
An independent investigation by a law firm commissioned by state legislators concluded that “not a reasonable juror hearing the full police report would have convicted Richard Glossip of first degree murder” and that his trial could not “provide a basis for the government to … take (his) life.”
Even the state’s Republican Attorney General, Gentner Drummond, said Glossip is probably innocent and that “it would be a great injustice to allow the execution of a man whose trial has been beset by many errors.”
Drummond applied to the Oklahoma Court of Criminal Appeals vacate Glossip’s conviction and grant him a new trial. The court refused on April 20, 2023, leading to the parole board hearing the following week.
If someone who has studied the history of leniency in essentialsI see three elements that make this case noteworthy: the actions of Attorney General Drummond, the attempt to use clemency to avoid a miscarriage of justice, and the fact that pardons in death cases are quite rare these days.
The role of the Attorney General
Leniency hearings like Glossip’s its procedures in which opposing parties – representing the convicted and the prosecutors – present evidence and arguments. In Oklahoma, family members of the victim are also given time to express their views.
In 1998, the U.S. Supreme Court gave its approval to such procedures when it ruled so leniency hearings should allow for a fair trial to the participants. The court said the convict should be given a chance to convince a leniency board that the government should not put him to death, just as the government must defend its decision to do so.
And, as my research indicates, that is what the government has almost always done when its representatives participate in such a process.
But not in the Glossip case. Drummond, his state’s top prosecutor, took the unprecedented step of siding with the petitioner — even against other government officials.
“I want to acknowledge how unusual it is for the state to support a pardon from a death row inmate.” Drummond said the Pardon and Parole Board. “I am not aware of any time in our history when an Attorney General has appeared before this council and pleaded for clemency. Nor am I aware of any time in Oklahoma history where justice would require it.
Clemency as mercy – or justice
I think Drummond’s reference to justice would have surprised many of the founders of this country.
For them, doing justice was one case before the courts. Clemency was about something else.
In United States v. Wilson, an 1833 decision and the first clemency case to be decided by United States Supreme Court Chief Justice John Marshall made that distinction clear. Instead of equating leniency and justice, he called clemency an “act of mercy, proceeding from the power entrusted to the execution of the laws.”
Clemency, Marshall continued: “sets the individual free to whom it is granted from the penalty which the law imposes for a crime which he has committed. It is … delivered to the person for whom it is intended, and not officially communicated to the court.”
Just over 20 years after Marshall wrote that, another Supreme Court justice, James Wayne, reinforced this separation of clemency and justice. He noted that leniency was about “forgiveness, release and remission”. Wayne said it was a “work of mercy… (that) pardons every crime, offense, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical.”
But throughout American history, both public and judicial attitudes to the purpose of clemency have changed, involving pardon, forgiveness, and mercy. to be replaced by justice.
Leniency, especially in capital matters, is almost exclusively associated with correcting mistakes made in lawsuits and other legal proceedings. Leniency hearings are now generally just another arena that inmates like Richard Glossip can turn to for justice.
This view culminated in the 1989 Supreme Court ruling, Herrera v. Collins, in which the court said, “A just remedy for the claim of actual innocence… executive clemency— a commutation or pardon granted by a governor or the president.
Clemency, the court continued — in language neither Marshall nor Wayne would have recognized — “is the historic remedy for avoiding miscarriages of justice when the judicial process has been exhausted.”
An example of this use of clemency occurred in 1998 when Governor George W. Bush commuted the death sentence of Henry Lee Lewis after what Bush said were “serious concerns … about his guilt in this matter.”
Clemency is rare in capital cases
Glossip, joined by Attorney General Drummond, sought clemency in hopes of avoiding a miscarriage of justice, such as the one Bush cited as a reason to save Lewis’s life. Given the facts of Glossip’s case, which the Pardon and Parole Board did shocked many observers. But from the perspective of leniency’s recent record in capital matters, the result should not be surprising.
As my research has shown, a century ago pardons were granted in about 25% of main cases. But in recent years according to the nonprofit Death Penalty Information Center, leniency in capital cases is “rare”. The center notes, “Excluding the occasional blanket pardons by governors concerned about the overall fairness of the death penalty, since 1976, fewer than two have been granted on average each year. In the same period, more than 1,500 cases went to execution.”
While the center does not specify how often leniency was requested in those cases, ask for leniency is often a standard part of death penalty lawyers’ efforts trying to save their customers.
It’s hard to get clemency in capital cases because, as the center explains, “governors are subject to political influence, and even granting a single clemency can lead to harsh attacks.” As a result, “lendentials in death penalty cases are unpredictable and immune to review.”
And what is true across the country is also true in Oklahoma, where the past half-century has been there only five leniency awards have been in principal cases.
After the denial of pardon, Glossip’s lawyers have promised to keep fighting and both state and federal courts are asking for his execution to be postponed. Meanwhile, Governor Kevin Stitt said he will do nothing to delay Glossip’s date with death.