On Wednesday, November 18, the Texas Court of Criminal Appeals (CCA) overturned a lower court order staying the execution of Raphael Holiday, despite significant concerns regarding the performance of his attorneys in the months and weeks leading up to his execution. In particular, observers were troubled by Holiday’s attorneys’ stated refusal to seek clemency on their client’s behalf, in contravention to both Holiday’s and his family’s wishes. Attorneys Seth Kretzer and James “Wes” Volberding stated that to seek clemency would only give Holiday “false hope,” and opined further that attempts to seek last-minute reprieves for death-sentenced prisoners only “play[s] dice with their emotions.” (Days before Holiday was set to be killed and in response to mounting criticism, Kretzer and Volberding did ultimately file a brief petition for clemency on his behalf – one which was hastily rejected, and which misstated the scheduled date of execution). While Holiday also sought to have Kretzer and Volberding removed from his case and substituted by counsel who would meaningfully seek clemency on his behalf, this motion was denied by a federal district court.
The decision of the courts not to intervene in Holiday’s case prior to execution raises potentially significant questions about the contours of death-sentenced prisoners’ right to seek clemency prior to execution – a right which every active death penalty state recognizes. Justice Sotomayor, in concurring with her colleagues that the Supreme Court “is likely to have no power to order Texas to reconsider its clemency decision,” nevertheless wrote of Holiday’s case:
By granting death-eligible defendants an attorney, ‘congress ensured that no prisoner would be put to death without meaningful access to th[is] ‘fail safe ’ of our justice system.’ […] So long as clemency proceedings were ‘available’ to Holiday…the interests of justice required the appointment of attorneys who would represent him in that process. […] (internal citations omitted) Holiday v. Stephens, 577 U. S. ____ (2015) at 3.
In Texas, the governor is permitted to grant clemency in capital cases only pursuant to a recommendation by the Texas Board of Pardons and Paroles. (See Chapter 9 in the ABA’s Texas Capital Punishment Assessment Report, available here). Even with such a recommendation, however, the governor is free to deny clemency if he or she so chooses. While Board recommendations of clemency are rare, and governor approval of such recommendations is even rarer (only two death-sentenced individuals have received clemency in Texas since 1976, while 531 executions have taken place in that time), clemency is nevertheless a crucial stage of any death penalty process. As Justice Sotomayor pointed out, clemency has been regarded by the Supreme Court as a “fail-safe:” a final opportunity for review and reflection on the appropriateness of the sentence prior to the imposition of the ultimate punishment.
While clemency is an extra-judicial process – meaning that it takes place outside of a courtroom, typically free from the myriad rules which govern traditional legal proceedings – it is precisely on account of its unique posture that it is so important in any death penalty case. Clemency allows for facts and evidence to be presented which may have been unavailable, or barred, on previous review; it allows for those impacted by the crime (both the family of the victim and the family of the condemned) to be heard; and it allows the individual facing death to feel that he or she has one final opportunity to seek mercy. Indeed, Holiday himself told reporters prior to his death: “If I have to die, I want at least a fair chance of fighting.”
There is no question that the current likelihood of receiving clemency in Texas – or in any death penalty state – is slim. Nevertheless, the fairness of any death penalty system depends on the willingness of actors to treat each stage of the process with the care and gravity that the ultimate punishment demands. Unfortunately, clemency has received relatively little attention as compared to other stages of the death penalty process. In response, the ABA has funded the Capital Clemency Resource Initiative (CCRI) in an effort to reinvigorate both practitioners’ and decision makers’ treatment of clemency. Without renewed concentration on this crucial issue, cases such as Holiday’s may become more frequent, and clemency will cease to operate as the “fail-safe” the courts have long envisioned.