Georgia

The information on this page provides a brief overview of capital clemency in Georgia and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information, please see the full Georgia Clemency Memo prepared by the ABA Capital Clemency Resource Initiative:

Georgia Capital Clemency Memo

The Power Defined

The Georgia Constitution vests the exclusive power to grant clemency (including in capital cases) with the State Board of Pardons and Paroles (“the Board”).

[T]he State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction. (Ga. Const. art. IV, § II, ¶ II).

The Board has the power to commute a sentence of death to one of life imprisonment after an affirmative vote by a majority of Board members. The General Assembly has the power to prohibit the Board from granting a pardon or parole to:

(1) Any person incarcerated for a second or subsequent time for any offense for which such person could have been sentenced to life imprisonment; and (2) Any person who has received consecutive life sentences as a result of offenses occurring during the same series of acts. (Ga. Const. art. IV, § II, ¶ II).

The Constitution makes no mention of executive participation in the clemency process apart from appointing members to the Board.

The Decision Maker(s)

The Board consists of five members appointed by the governor, subject to confirmation by the state Senate. All members serve a staggered term of seven years. The members must select one member to serve as chairperson. (Ga. Const. art. IV, § II, ¶ I).

How Petitions are Brought

In Georgia, a clemency petition may be submitted in written form and must contain the grounds on which the request for commutation is based. However, the Board may also consider the following information in reaching a decision:

1. A report or testimony reflecting the petitioner’s conduct in prison;
2. Testimony, written or live, from family members, loved ones, friends, co-workers, former attorneys, religious authorities, or anyone else who may have helpful information;
3. Testimony, written or live, from expert witnesses, including mental health and forensic experts;
4. Letters from those who support clemency;
5. The results of any physical and mental examination(s);
6. The extent to which the person appears to have responded to the efforts made to improve his or her social attitude;
7. The educational programs in which the person has participated and the level of education which the person has attained;
8. Any written statements or oral testimony of the district attorney of the circuit in which the person was sentenced expressing views and making any recommendation as to a commutation of a death sentence; and
9. The written, oral, audiotaped, or videotaped testimony of the victim, the victim’s family, or a witness having personal knowledge of the victim’s personal characteristics, including any information prepared by the victim or any individual offering or preparing information on behalf of the victim, for the purpose of the Board’s consideration of a pardon or commutation of a death sentence if the victim has provided such information to the Board.

The Board is required to consider a death row petitioner’s initial application for commutation, but has discretion over consideration of any subsequent applications by the same petitioner.

Hearing Practice

Once a petition has been filed, the Board may interview the petitioner in person or send one or more investigators on behalf of the Board to interview the petitioner in prison. Attorneys are permitted to be present during these interviews, which are video recorded and then played back for Board members prior to the hearing. The prisoner’s hearing is held a few days later, usually the day prior to the scheduled execution. This hearing is for the prisoner’s counsel and witnesses only. The prisoner does not attend the hearing, either.  The Board may come prepared to the hearing with follow-up questions for the petitioner’s attorneys based on the video recorded interview. Representatives of the State do not attend the prisoner’s session, but have their own private session before the Board.

Capital clemency hearings held by the Board are not open to the public. However, the clemency application itself is ordinarily declassified and released to the public shortly after submission. Counsel should be aware that the contents of the petition will be made public. Counsel may request that the petition be redacted or remain classified in the interests of privacy.

Within 72 hours of receiving a request to commute a death sentence, the Board is required to provide written notification of the hearing date to the district attorney of the circuit in which the petitioner was sentenced. The district attorney also has a separate opportunity to submit information for consideration by the Board and respond to the clemency request.

There are no rules governing the evidence submitted with the petition or presented during the hearing.  Neither side is allowed to hear the other’s argument or object to the evidence presented. There is no procedure in place for either side to rebut the other. However, it is fair to assume that State representatives will probably hear about or infer the contours of evidence presented at the prisoner’s session.

Responding to a Petition

As of May 2015, the Board is required to provide a written decision for public inspection relating to a commutation grant. This includes the Board’s findings that reflect consideration of the evidence offered which supports the Board’s decision. The bill requiring an increase in transparency was introduced shortly after the Atlanta Journal Constitution published an article in 2014 regarding the Board’s secret decision-making, indicating that grants of clemency were often made without even notifying victims of the decisions. HB 71 passed in the state House of Representatives by an overwhelming majority of 170-3, and was signed without protest by Governor Deal on May 1, 2015.

Whether the statute also requires the Board to disclose the reasoning behind a denial of clemency remains unclear, but the Board’s practice has been to leave denials unexplained. The Board’s orders denying clemency for each of the twelve petitioners that have been executed since May 2015 can be found on the Board’s website. None of the orders contain reasoning behind the Board’s decision to deny clemency.

Current Clemency Decision Makers

As noted above, the members of the Board are appointed by the governor and confirmed by the state Senate to serve seven-year staggered terms. However, there are no required qualifications for appointees. Of the current members sitting on the Board, two of them are former State Representatives. The other three members all have experience in law enforcement.

Current members are: Chairman, Terry E. Barnard (term expires 2024); James W. Mills (term expires 2018); Jacqueline Bunn (term expires 2023); David J. Herring (term expires 2025); and, Brian Owens (term expires 2022). More detailed information about the current members and their biographies is available on the Georgia State Board of Pardons and Paroles website.

There is no indication that members are required to undergo any training once they are seated on the Board; however, the Board website indicates that members occasionally do take part in conferences and events related to criminal justice, law enforcement, and victim services.

Past Capital Clemency Decisions

Grants

Georgia has been a key state involved in U.S. Supreme Court death penalty decisions. In 1972, Furman v. Georgia struck down the death penalty nationwide in a 5-4 decision. In 1976, Gregg v. Georgia reinstated the death penalty so long as the death sentence is not imposed in an “arbitrary and capricious” manner. Since 1976, ten death row inmates in Georgia have been granted commutations, making Georgia the second highest state for individual capital commutations in the country.

Five most recent grants of capital clemency in Georgia:

Alexander Williams: Alexander Williams was found guilty of the rape and murder of a 16-year-old girl in 1986. Williams would have been the first prisoner in the United States who had to be forcibly medicated due to his schizophrenia to render him sane enough to be executed. Williams’ case drew lots of attention, including from former First Lady Rosalynn Carter, who sent a letter to the Board calling for clemency. The Board granted Williams’ petition for clemency in 2002, citing his history of mental illness and the fact that Williams was a juvenile at the time of the crime. Williams was found dead in his prison cell due to apparent suicide late in 2002 at the age of 34.

Willie James Hall: Willie Hall was convicted and sentenced to death for fatally stabbing his estranged wife. The Board granted clemency to Hall in 2004 after six jurors testified that they would have recommended life imprisonment without parole had it been offered at trial. The Board also considered Hall’s exemplary prison behavior and lack of a criminal record prior to his arrest for the murder in their decision to grant clemency.

Samuel David Crowe: Samuel Crowe admitted to killing a retail manager of a lumber company in 1988, and was sentenced to death. At his clemency hearing, Crowe’s counsel presented evidence demonstrating Crowe’s remorse and good behavior behind bars. The Board granted clemency two hours before Crowe was set to die in 2008 without providing a reason.

Daniel Greene: In 1991, Daniel Greene killed his former classmate and then proceeded to attack an elderly couple and a store clerk in pursuit of money for cocaine. In 2012, the Board granted Greene’s petition for clemency after hearing testimony from the prosecutor indicating that he would have pursued a life sentence if life without parole had existed at the time of Greene’s trial. The Board also heard testimony from members of the community and prison staff regarding Greene’s overall upstanding character, aside from one incident of violence instigated by intoxication.

Tommy Waldrip: Tommy Waldrip was found guilty of the 1991 murder of a college student who was preparing to testify against Waldrip’s son in the re-trial of an armed robbery case against him. In 2014, the Board granted clemency to Waldrip without explanation; however, there was some speculation that the decision resulted from the presentation of evidence that Waldrip’s sentence was not proportionate to the sentences that his accomplices received.

Jimmy Meders: The Board commuted Jimmy Meders’ sentence on January 16, 2020, just hours before Mr. Meders was set to be executed for the murder of Don Anderson. In his petition for clemency, Mr. Meders took full responsibility for the death of Mr. Anderson. “Because of the actions of Meders and his accomplices, Anderson’s family lost a beloved family member whose absence has been felt for more than thirty years.” The petition went on to state that the jury initially wanted to sentence Meders to Life Without Parole (LWOP), which had not been an option at the time of trial; that all living jurors confirmed this fact; that Mr. Meders had only one disciplinary infraction in 30+ years on death row; and that he had no criminal record prior to the crime, showing that his actions then were an “aberration.” The Board – which as of 2015 now has to state reasons for granting clemency – noted all of these factors in issuing its order granting Mr. Meders’ commutation.

Denials (where newsworthy or controversial)

Warren Hill  petitioned the Board for clemency in early 2015. Hill was sentenced to death for the killing of his cellmate after Hill had already been imprisoned for the death of his girlfriend. Hill had an IQ of 70, and his counsel urged the Board to consider his mental impairment and likely intellectual disability in their decision making. Hill previously petitioned for clemency in 2012, but that request was denied despite pleas for mercy from former President Carter and wife Rosalynn Carter. The Board denied Hill’s request in January of 2015 without explanation. Hill was executed on January 27, 2015.

In September of 2015, the Board was presented with a petition for clemency from the only woman on Georgia’s death row. Kelly Gissendaner was convicted of convincing her boyfriend Gregory Owen to kill her husband. Owen stabbed Gissendaner’s husband to death in 1997 and accepted a life sentence with the possibility of parole in exchange for his testimony against Gissendaner. Gissendaner refused a similar deal and was found guilty of the murder and sentenced to death in 1998. Counsel for Gissendaner petitioned the Board for clemency several times. They first requested clemency in February of 2015 on the grounds that the death sentence with disproportionate to the sentence that Owen received in exchange for his testimony. In support of a second petition, Gissendaner’s children submitted a video to the Board asking for mercy, and State Corrections Deputy Director Vanessa O’Donnell and former Chief Justice of the Georgia Supreme Court Norman Fletcher wrote to the Board asking for clemency. The Board denied all of Gissendaner’s clemency requests, citing to the fact that Gissendaner’s conviction was upheld through her numerous appeals, including the U.S. Supreme Court’s refusal to hear her case in 2014. Gissendaner was executed on September 30, 2015.

The September 21, 2011 execution of Troy Davis sparked protests nationally and globally. Davis was convicted and sentenced to death for the 1989 killing of an off-duty police officer. Davis maintained his innocence until his death, telling the members of the victim’s family present at his execution, “I did not personally kill your son, father, brother.” Although seven out of the nine key witnesses who testified against him at trial recanted at least part, if not all, of their testimony, Davis was denied a new trial by both state and federal judges. Aside from these eyewitness statements, there was no physical evidence linking Davis to the crime. World figures, including former President Jimmy Carter, Pope Benedict XVI, and the French foreign ministry, publicly pushed for clemency. Davis’ execution was put on hold for three hours while the Supreme Court considered, but ultimately denied, a last minute stay. Due to what many considered to be strong evidence of innocence, Davis’ execution prompted international outrage and a renewed call for a global moratorium on the death penalty.

Current Newsworthy Case: Keith Tharpe

Keith Tharpe is currently on death row in Georgia for the killing of his sister-in-law, Jacqueline Freedman, in the course of kidnapping and raping his estranged wife. In 2017, the U.S. Supreme Court stayed his scheduled execution, and in 2018, sent his appeal concerning whether racism on the jury improperly affected his death sentence back to the 11th Circuit Court of Appeals. In the appeal, Tharpe argued that he was unconstitutionally sentenced to death because a juror imposed the death penalty because of race. Juror Bernard Gattie signed an affidavit stating there are two types of black people—“good black folks” and “ni**ers.” Gattie further claimed, “After studying the Bible, I have wondered if Black people even have souls.” The Supreme Court vacated the lower court judgement by a 6-3 vote, observing “Gattie’s remarkable affidavit—which he never retracted—presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.” In August 2018, the 11th Circuit again denied Mr. Tharpe’s appeal, finding that 1) the claim should have been raised sooner, and 2) the Supreme Court decision in Peña-Rodriguez v. Colorado – directing courts to examine racial bias in juries if there is a factual basis for doing so – could not be applied because it was not retroactive. On March 18, 2018, the Supreme Court upheld the 11th Circuit’s decision, with a concurrence by Justice Sotomayor stating that while the facts of the case and the contents of the juror affidavit were incredibly troubling, she did not disagree that the procedural obstacles made the issue uncognizable on appeal. Justice Sotomayor wrote,

We should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review. […] It may be tempting to dismiss Tharpe’s case as an outlier, but racial bias is “a familiar and recurring evil.” […] That evil often presents itself far more subtly than it has here. Yet Gattie’s sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system.

Georgia Resources

Click here to view Georgia resources for download, including clemency petitions and other relevant practice materials. Please note that not all of the content will be visible to users who are not currently logged in or do not otherwise have practitioner-access to the website.

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