Last March, Louisiana Governor John Bel Edwards announced his opposition to capital punishment. Speaking publicly about the death penalty for the first time since he assumed office, the governor embraced several of the arguments that abolitionists have made for a long time.
Edwards explained that capital punishment is “very final, not because it’s perfect, but because it ends in someone’s death, and we know that there are far more exonerations off of our death row over the last 20 years than actual executions.” He further called attention to the fact that the cost of executing someone far exceeds the cost of keeping them in prison for life.
In addition to these pragmatic arguments, Edwards situated his opposition within the broader frame of what is sometimes called the “culture of life.” The governor said that ending the death penalty is “very consistent with being a pro-life state. It seems to me to be inconsistent to say, on the one hand, we are going to be the most pro-life state in the nation, yet we are going to maintain our traditional approach to the death penalty.”
Edwards’s statement was a significant development in the ongoing struggle to end the death penalty in this country even though, unlike Texas, Oklahoma, or other states in the region, Louisiana has not executed anyone in more than a decade.
His words prompted 51 of the 57 people on his state’s death row to act in unison and file clemency petitions with the Board of Pardons and Committee on Paroles on June 13. Five days later, all but one of the remaining death row inmates followed suit.
The Louisiana Constitution says that the governor can commute a death sentence only upon the favorable recommendation of the Board of Pardons. The governor, who appoints all of the members of the Board of Pardons, also has the power to direct the Board to hold hearings on applications for clemency.
The stars seemed to be lining up to allow Edwards, whose term as governor ends next January, to make good on his abolitionist statements. But all that changed on July 24 when the Board of Pardons gave in to political pressure and used a procedural ploy to avoid holding hearings on most of the death row clemency petitions.
Gov. Edwards should intervene quickly and reverse that decision.
The clemency petitions highlight the problems that have long plagued the death penalty system in Louisiana and elsewhere. Among them is racial disparity in the charging and sentencing process. This is reflected in the fact that 74 percent of those now awaiting execution in Louisiana are people of color, and 67 percent are Black.
Beyond racism, the Louisiana death penalty system is tilted against defendants who have intellectual disabilities. According to the Death Penalty Information Center, “There are at least 23 people serving death sentences in Louisiana—fully 40 [percent] of the state’s death row population—who have documented intellectual disability.”
The clemency petitions filed in June also raise questions about the reliability of the verdicts in many death cases. Among other things, they document a troubling pattern of prosecutorial misconduct in death cases.
This is part of the reason that more than 80 percent of the death sentences imposed in Louisiana since 1976 have been reversed on appeal and why eleven people have been exonerated in the state following wrongful capital convictions and death sentences, making the state fourth in the U.S. for the number of death-row exonerations.
Before it decided to stop the process, the Board of Pardons asked for an advisory opinion from the state Attorney General’s Office about the correct interpretation of the Board’s administrative rules. In addition, while the Board is not required to notify district attorneys or victims when it receives clemency petitions, it did so in this instance because the “Board felt it important to have involvement from all its stakeholders as early in this process as possible.”
This decision heightened the political stakes surrounding the clemency process.
Asking for opinions and input from the attorney general and local prosecutors, many of whom may have played a role in bringing the cases in the first place, was almost guaranteed to tilt the playing field against the people seeking to have their death sentences commuted to life in prison without parole.
And the attorney general and district attorneys did not disappoint.
On July 17, Louisiana Attorney General Jeff Landry, a Republican who “styles himself as tough on crime and supports the death penalty… [and] is currently the leading candidate in the race to succeed Edwards,” noted that there were 440 applications for clemency pending when the death row petitions were filed and asked, “Why are those applications any more important than the 440 that are already in the pipeline and are pending?”
Landry also told the Board that even if it wanted to it could not consider the requests for clemency. He cited a provision that says that “any offender sentenced to death may submit an application within one year from the date of direct appeal decision.” Since it had been more than a year since all of the petitioners had completed the direct appeals process, he argued that the Board should return their petitions.
And the attorney general added that while the Board has the authority to waive the filing deadline, it should not do so. He wrote, “In the matter at hand, however, there exists no factual basis for the Board to engage in emergency rulemaking. Even to the extent that the nature of the Board rules at issue here demonstrate that your request concerns death row inmates, the carrying out of the death penalty upon lawfully convicted and sentenced individuals does not satisfy any of the…. reasons set forth by the legislature in La. R.S. 49:962(A)(1).”
Landry emphasized that none of the petitioners had a pending execution date.
Two days after Landry issued his opinion, Hillar Moore, District Attorney of the East Baton Rouge Parish, also responded to the Board’s invitation to comment. He supported the attorney general, observing that he “accurately describes the rules applicable to the applications for commutation of capital sentences.”
Moore upped the ante by saying that “the wave of applications for commutation of sentence came as a surprise to several district attorneys and to many members of the public. To several of the victims’ families, the news of the applications came as a shock and has caused significant confusion, particularly in light of the associated media exposure.”
These opinions hit home, and on the day it decided to stop the process, the Board of Pardons explained that “In a regularly scheduled meeting of the Louisiana Board of Pardons and after consideration of public comments, the Board voted to remove a Waiver Consideration of Board Rules from its agenda….As such, the Board is forced to return 56 commutation applications for offenders serving death sentences in Louisiana….”
It went on to claim that “These have been the most scrutinized applications our office has ever processed.”
Yet, scrutinized or not, it is clear that the Board gave in to the political pressure it helped to generate and did not do what it has often done in the past, namely waive the one-year time limit for filing clemency petitions in death cases.
Cecelia Kappel, the director of the Louisiana Capital Appeals Project, says that “Stopping the process in its tracks would allow the board’s independence to be compromised by the very prosecutors who have a vested interest in perpetuating this broken system.” As Kappel suggests, “the board has a history of waiving its rules so death penalty clemency applications can be heard.”
And she rightly labels the Board’s refusal to do so “unprecedented.”
Whether unprecedented or not, the ball is now in Governor Edwards’s court. He should use his authority to order the Board of Pardons to hold hearings on the death row clemency petitions and review them on their merits.
Doing so would be an important step in turning his abolitionist rhetoric into action.