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Monday, March 23, 2015 - 9:07am

Looking for Clarity in Death Row Clemency

A bill in the General Assembly has been praised for its potential to make transparent the inner workings of the Board of Pardons and Parole, but there are questions about just how far that transparency will go.

To understand what Georgia House Bill 71 might actually do, you have to understand what inspired it.

Kimberly Boim, editor and publisher of the Dawson Advertiser newspaper, says it all started in Dawson County with the murder of Keith Evans in 1991. She covered the Evans’ killing by Tommy Lee Waldrip and three other men.

Waldrip was scheduled to be executed last July. The day before his scheduled execution, Waldrip was granted a commutation of his death sentence by the Board of Pardons and Parole. It was only the ninth such commutation in the state.

“To have a board, the board of pardons and paroles, overturn that in less than two hours floored everybody in our community,” Boim said.

Keith Evans’ family wasn’t even back from the hearing with the Board of Pardons and Parole in Atlanta when they got the news. Boim said the Evans family, and Dawson County, had one question.

“How did this happen?” Kimberly Boim said.

Boim and the Dawson Advertiser asked the board to explain. After about a month of back and forth, the board gave the paper a two sentence reply that amounted to ‘No.’ In a non-binding resolution, the Dawson County Commission asked for the same. They got the same two sentence reply.

Enter Kevin Tanner.

In 1991, Kevin Tanner was employed by the Dawson County Sheriff’s Office where he helped investigate Keith Evans murder. Today he represents the county in the Georgia House.

“And I felt, and still feel today, that victims and their families deserve a better answer,” Tanner said.

So Tanner and five other representatives sponsored House Bill 71 to get those answers.

Tanner says the bill would increase transparency by forcing the Board to make public the reasoning behind their decisions in commuting death sentences. The bill would also make public decisions to grant pardons. Tanner says he doesn’t want more Waldrip style surprises from the Board of Pardons and Parole.

Tanner says, too, that the board would have to publish why they deny commutations and pardons if HB71 were to become law.

Donald E. Wilkes Jr., emeritus professor of law at the University of Georgia disagrees on that second facet of the bill.

“I don't see how this proposed statute is going to make much difference in terms of that,” Wilkes said.

For Wilkes, the bill’s language just doesn’t provide for total transparency.

“What this statute does is to make a change only in cases where the board grants commutation,” Wilkes said “And it says in those cases there must be transparency it must give reasons and it must explain its vote.”

Section three of bill spells out clearly what information is made public when the Board commutes a death sentence. Wilkes doesn’t see any language relating to the denial of a death sentence commutation.

Wilkes warns that as written, the bill would more likely put a chilling effect on the commutation of death sentences. If given the choice between making a decision that comes bundled with a lot of extra work and the potential for criticism and scrutiny or a decision in which secrets are kept, Wilkes says the latter is more likely.

Kevin Tanner disagrees with Wilkes reading of the bill.

“That's not the intent,” Tanner said. “The intent of the legislation is that once a final decision is rendered no matter what that decision is, the reason for that decision is made public.”

Linda Jellum is an expert in statutory law and a professor at Mercer University’s Walter F. George School of Law. She says the problem with the bill is one of ambiguity.

Jellum says that Section three of the bill can be split in half. The first half reads in a way that demands explanation from the Board when it grants clemency, saying that “A grant of clemency, pardon, parole, or other relief from sentence shall be 51 rendered only by a written decision...”

The second half of the section is where it get’s hazy for Jellum.

As to commutation it reads...”A written decision relating to a commutation of a death sentence shall ...” and goes on to list what the Board would include in their written report.

Two words in that second section, “relating to”, are what Jellum says an argument that the bill actually forces total transparency hinges on. But that’s tenuous. Her read is that the bill does what Wilkes says, just clumsily.

“There’s an argument that could be made that the parole board should [explain both findings], but I think it’s the weaker argument,” Jellum said.

Board spokesman Steve Hayes says the Board of Pardons and Parole has been helping the bill along.

“Since the beginning of the process, the Board has worked with the sponsor, Representative Tanner, and has contributed to the current version of the bill,” Hayes said in an email.

Hayes says the bill in its present form is something the Board can live with.

Linda Jellum says she can see the argument for both interpretations of the bill, Wilkes’ and Tanner’s, but it’s frustrating.

“I don’t think it’s clear. I can’t get to clear,” she said.

Kevin Tanner is quick to remind that HB 71, until is is made law, is still a work in progress.