In July, Tommy Lee Waldrip became only the ninth Georgia Death Row inmate to be granted clemency from execution since the resumption of executions in the 1970s. The explanations for Waldrip's reduction in sentence from news media more or less agreed that the Board of Pardons and Parole saw co-conspirators in the murder for which Waldrip was convicted serving life sentences and decided his execution would be be unfair.
The problem was that all of those explanations for educated guesses at best. The Georgia Board of Pardons and Parole does not publish either their opinion or the reason behind it. Why?
First, a little about the board itself. There are five members of the board of Pardons and Parole. Each of them is appointed by the Governor. That places the board, and clemency hearings, well outside the judicial branch and in the executive branch of government. That makes a clemency hearing far different from a court proceeding.
Baldwin District Attorney Fred Bright has experience with the death row clemency, or at least arguing against it. Bright won so many death penalty cases as Baldwin District Attorney starting in the 1990s that the Atlanta Journal Constitution wrote about it. He’s tried a lot of them. One of his convictions, Robert Wayne Holsey is scheduled for execution in the Fall. He's successfully argued against clemency three times. He knows how it different that process is from a jury trial.
"There’s no rules of evidence, there’s no objections. They pretty much..’Mr. District Attorney, put up whatever you want," Bright said.
Mothers, fathers, psychologists, anyone and everything lawyers on either side want to present is fair game. But unlike at trial, neither prosecutors nor the lawyers for the death row inmate are allowed to hear each others’ arguments. And neither side is allowed to rebut the other.
"It's a surprisingly informal hearing," Bright said.
Bright said that attorneys aren't allowed to present for the board's vote and there is never a written decision.
"So all you find out in the end is the ultimate outcome," Bright said.
The lack of transparency and the informality makes some, like Richard Dieter of the Death Penalty Information Center, critical of the clemency process.
"This has been challenged right up to the Supreme Court, that the death penalty in it’s clemency lacks a due process. Lacks a formal system you can rely on and you know, aim at," Dieter said.
Dieter said the reason clemency hearings work the way they do comes back to one central fact. The power to grant clemency rests with the executive branch.
"The courts have said this is a Separation of Powers issue, basically," Dieter said.
That has led courts to a hands off approach to the issue.
Donald Wilkes taught DA Fred Bright at the University of Georgia Law School and studied boards of pardon and parole for much of his career. He agrees with Dieter that the separation of powers issue has put a wall up around boards of pardon and parole and their clemency proceedings.
"They’re not required to give reasons. Occasionally they will but as a general rule they will not, and the courts will not question that," Wilkes said.
Wilkes said that courts will look at clemency hearings, but only if there is clear evidence of some prejudice. Wilkes said that is a major reason why boards don't publish. A written record would make it easier for courts to scrutinize a board's reasoning.
Wilkes sees another problem. Three of the five members of the Board of Pardons and Parole have long work histories in either corrections or law enforcement. One board member was even a sheriff’s deputy in Baldwin County where Robert Wayne Holsey killed Deputy Will Robinson. He calls this problem "regulatory capture".
"The agents of the law enforcement establishment now decide whether or not you’ll be arrested, whether or not you’ll be prosecuted, whether or not you’ll be punished and now whether or not you’ll be granted clemency," Wilkes said.
That's not to say that Wilkes thinks the board members are bad people.
"Nonetheless, they do come to the table with a history of being involved in law enforcement and that undoubtedly affects how they decide issues of clemency," he said.
For DA Fred Bright, questions about the fairness of the clemency process miss the larger point. You don’t just land on death row with the snap of a prosecutor’s fingers.
"12 jurors who have heard both sides and the whole evidence in a fair jury trial have said the only justice is the death penalty. And it takes a lot to get them there," Bright said.