Opinion: The arbitrary safety valve for death penalty cases

Nov 02, 2023

Oklahoma Attorney General Gentner Drummond addresses the board at the Oklahoma Pardon and Parole Board clemency hearing for Richard Glossip Wednesday, April 26, 2023.

Randy Bauman

Ginnie Graham talks with West Point grad, Oklahoma Military Hall of Fame and Tulsa resident Michael Lapolla about "Mansions of the Lord" hymn ahead of Memorial Day.

The U.S. Supreme Court has described clemency as the "fail safe" in our criminal justice system.

In Oklahoma, clemency has been around for decades and is a two-step process involving both the Pardon and Parole Board recommending and the governor granting clemency. The Pardon and Parole Board is defined by law as five members.

The U.S. Supreme Court has explained that "it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible."

We, as Oklahomans, recognize that our justice system is not perfect. The system has double checks in place to help address any mistakes that may occur. The Pardon and Parole Board is one of those double checks.

Clemency alone cannot correct all mistakes, but it can provide a safety valve for the most egregious ones. The past tells us that the Pardon and Parole Board has stepped in to exercise its recommendation authority in some death penalty cases where doubts exist or revision of sentence is otherwise warranted.

This is the type of situation this safety valve was designed to address.

In other prior death penalty cases where we have learned that there are serious doubts about guilt, clemency has been granted by the Oklahoma Pardon and Parole Board.

One example is Phillip DeWitt Smith, who received a clemency recommendation from the Pardon and Parole Board. He was granted clemency and his sentence commuted to life without parole by a Republican governor.

Another example is Julius Jones, who also received clemency. The system actually worked in some measure in these cases.

However, Richard Glossip, in whose case the attorney general is expressing concern over the reliability of the trial and conviction, did not receive a clemency recommendation from the Pardon and Parole Board. Oklahoma is on the road to executing perhaps its first person where serious doubts of guilt have arisen.

Oklahoma should find a way to take a detour off that alarming road.

Clemency should not just be granted in the rare cases where there are doubts as to guilt. There are in fact a range of reasons why clemency should be granted.

Based on my experience, multiple men on death row who have upcoming cases before the Pardon and Parole Board have these other reasons present in their cases.

Clemency — put simply, a measure of mercy — is an important part of our system and should be provided for a range of good reasons which time has given the perspective to learn.

In prior cases, clemency has proven to be an effective fail safe. Those individuals who received clemency remained in prison, but have done well in other correctional facilities. Turning the penalty down just one notch in appropriate cases can often be the fair, proper and more just result.

Glossip was not provided a five-member board. This was due to an appropriate recusal, landing him ultimately with an unresolved tie vote of 2-2. Either a tie should be enough to recommend clemency to the governor so the governor can exercise his or her best judgment or there should be an immediate replacement when a board member recuses.

A divided vote cannot lead to death, and the 2-2 lockout that occurred here should be avoided.

Notably, other important tribunals in Oklahoma's justice system have a replacement mechanism for recusals.

For example, a replacement judge is to be placed on the Court of Criminal Appeals to cover recusals. The same is true for our Oklahoma Supreme Court when the number drops under seven. The Pardon and Parole Board should be no different. There is more than one way to do it.

The Pardon and Parole Board members are appointed either by the governor, Supreme Court or Court of Criminal Appeals. The appointing authority for the recused member could name a replacement, or, even simpler, the board's executive director could serve in case of a recusal.

The one thing that does not work is exactly what happened here; having an applicant in all practical effect start with one no vote before the case is even heard. That is manifestly unfair.

Yet, that is exactly what happened to Glossip. It should not be allowed to stand and must never happen to someone else.

Further, it is significant that the two former prosecutors on the Parole Board in Glossip's case prevented his case from being sent to the governor. It is appropriate to have a former prosecutor, even more, on the board as that is a useful perspective.

However, for balance, one of the members should also be a former defense lawyer, another useful perspective. The Legislature has already recognized that two members of the board should have experience in mental health, social work or substance abuse services.

We, as Oklahomans, must fix what is not functioning properly in our justice system. Having no process for replacing a recused board member and effectively deeming a recusal as a no vote, is not working to serve as a functioning safety valve.

A divided vote of the Pardon and Parole Board cannot lead to death. The current safety valve of the Pardon and Parole Board is failing in critical circumstances implicating our most irreversible penalty and we must not wait any longer to address it.

Randy Bauman led the Oklahoma Capital Habeas Unit for 10 years and appeared many times before the Oklahoma Pardon and Parole Board. He served as a public defender in the U.S. Western District of Oklahoma's public defender's office for 21 years. He is now of counsel with the ACLU Oklahoma.

Randy Bauman led the Oklahoma Capital Habeas Unit for 10 years and appeared many times before the Oklahoma Pardon and Parole Board. He served as a public defender in the U.S. Western District of Oklahoma's public defender's office for 21 years. He is now of counsel with the ACLU Oklahoma.

Get opinion pieces, letters and editorials sent directly to your inbox weekly!

Nothing is new in the age-old struggle for dominance over ideas. But, recent years have ramped it up and brought it into the public governance…

Dr. Chris McNeil joins the podcast this week to explain that, in his opinion, because of a poor medical recruiting system, we are losing lives…

We can continue to develop physicians only to see them leave for other states … or implement a game-changing strategy making Oklahoma healthie…

"I want people to know that these laws are literally killing us. They're trying to stop us from existing," says Cassie Middlebook, a transgend…

Nobody has ever been held accountable for the 1921 Tulsa Race Massacre, write attorneys William D. Zabel and Damario Solomon-Simmons.