Tennessee

The information on this page provides a brief overview of capital clemency in Tennessee and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information and sources, please see the full Tennessee Clemency Memo (October 2020) prepared by the ABA Capital Clemency Resource Initiative.

Tennessee Capital Clemency Memo

The Power Defined

The Tennessee Constitution Art. III § 6 vests the governor with the power to “grant reprieves and pardons, after conviction, except in cases of impeachment.” Although the governor alone may grant clemency, the Tennessee Board of Parole (“Board”) has delegated authority to review clemency applications and make a non-binding recommendation for or against clemency following a formal hearing. Alternatively, the Board may unilaterally deny any non-capital application for clemency that it feels does not merit a formal hearing; this decision does not get forwarded to the governor for review. In capital cases, the involvement of the Board in issuing a recommendation is left to the discretion of the governor. The Board is not currently involved in the review of capital clemency recommendations, though it has been in past gubernatorial administrations.

Tennessee’s Code of Criminal Procedure further clarifies the governor’s clemency power and provides for the lesser grant of commutation in death penalty cases where a pardon is requested. Under Tenn. Code. Ann. § 40-27-105 (West), “[u]pon application for a pardon by a person sentenced to capital punishment, if the governor is of opinion that the facts and circumstances adduced are not sufficient to warrant a total pardon, the governor may commute the punishment of death to imprisonment for life in the penitentiary.” A separate provision also enables the governor to “commute the punishment from death to imprisonment for life, upon the certificate of the supreme court, entered on the minutes of the court, that in its opinion, there were extenuating circumstances attending the case, and that the punishment ought to be commuted.” (Tenn. Code Ann. § 40-27-106 (West)). A third provision, Tenn. Code Ann. § 40-27-109 (West), grants the governor the power to fully exonerate any person whom he or she finds did not commit the crime for which that person was convicted after consideration of the “facts, circumstances, and any newly discovered evidence.” Such exonerations are unconditional and automatically expunge the crime from the person’s record, and the governor may choose to exonerate someone who previously applied for a pardon or convert a past or proposed pardon to a full exoneration. According to archived information, the Board’s Executive Clemency Unit processes all non-capital commutation, exoneration, and pardon applications, while the governor’s office handles reprieves (more typically made in capital cases).

The Decision Maker(s)

As discussed above, while the governor has the sole authority to grant clemency, the Board has delegated authority to review non-capital applications for pardon, commutation, or exoneration and make non-binding recommendations for action based on criteria established by the governor. The Board does not currently outline any procedure for review in capital cases, and Tennessee death penalty attorneys indicate that current practice is to bring applications for clemency in capital cases to the governor’s office directly.

Although the Board is not currently involved in capital case clemency review, because there is precedent for their involvement if the governor so wishes, we are including information about their statutory authority and makeup here.

There are seven members of the Board, who are appointed by the governor. Members serve six-year terms and are eligible for reappointment. The governor also appoints a chair, who serves two-year terms. There are no formal requirements for appointment; however, the governor is instructed to give “preference” to candidates with experience in “the criminal justice system, law, corrections, medicine, education, social work or the behavioral sciences.”

How Petitions are Brought

In non-capital cases, a clemency petitioner must submit an application for the type of relief being sought to the Board’s Executive Clemency Unit. Applications for pardons, exonerations, and non-capital commutations are currently available on the Board’s website under “Executive Clemency Unit.” Although the current commutation application provided by the Executive Clemency Unit does not include a portion for capital cases, a 2017 commutation application containing instructions for capital commutation and reprieve requests has been archived. It is being included here because the possibility remains that current or future gubernatorial administrations may wish to engage the Board in review of capital clemency cases.

Hearing Practice

In Governor Lee’s administration to date, no formal clemency hearings have been held in capital cases. Prior Tennessee governors had asked the Board to review applications for death penalty clemency and hold hearings, but it is left to the discretion of each administration whether to involve the Board in this manner. Although attorneys for death penalty prisoners seeking clemency have had opportunities to speak with members of Governor Lee’s administration concerning the merits of their clients’ cases for clemency, they have not been granted a formal hearing as has been done in the past.

Responding to a Petition

Tennessee law requires that “[t]he governor shall cause to be entered, in a book kept for that purpose, any reasons for granting pardons or commuting punishment, and preserve on file all documents on which the governor acted, and submit the same to the general assembly when requested.” This statutory provision suggests that in cases where the governor determines that clemency should be granted, the General Assembly is empowered to request information about the decision and the records on which it was based. In addition, in 2011 the law was modified to require that in cases where clemency is granted, before the intention to grant clemency is made public, “the governor shall notify or cause to be notified the attorney general and reporter and the district attorney general of the judicial district in which the conviction occurred of the impending clemency action.” This code provision also specifies that “[p]rior to notice of the clemency action being made public, the district attorney general, through the victim-witness coordinator, shall notify the victim or victims of the offense for which the person is receiving clemency, or the victim’s representative, of the impending grant of clemency.”

The governor is not under any statutory obligation to disclose information as to why clemency has been denied, however.

Current Clemency Decision Maker(s)

Governor Bill Lee (R) was elected in 2018, after the previous Governor Bill Haslam (R) was term-limited out of office. Prior to taking office, Governor Lee worked solely in the private sector, most recently as chief executive officer of his family business, Lee Company. After graduating from college, Lee returned home to join the family business, where he held several roles before becoming president of the company in 1992. Governor Lee’s stated priorities during his tenure include “good jobs, great schools, and safe neighborhoods.” Regarding the death penalty, Lee has said he would allow death penalty sentences to proceed, unless extraordinary circumstances forced his hand. Lee has said he expected the most difficult decisions he would face as governor would be weighing the fate of a prisoner’s life, but that the death penalty is “appropriate for those most heinous of crimes.” Governor Lee considers his family to be “people of strong faith.” He is an active member of Grace Chapel Church and participates in numerous faith-based ministries.

Board Members

Note: Although the Board is not currently involved in the review of clemency applications in capital cases, because Board involvement in capital clemency case review may be requested by the governor at any point, the PDF of the Tennessee Capital Clemency Memo includes biographical information about the Board members.

Past Capital Clemency Decisions

Grants

Michael Joe Boyd: In September 2007, Governor Bredesen commuted the death sentence of Michael Joe Boyd, whose execution was scheduled for October 24, 2007, to life in prison without parole, citing ineffective legal counsel at his sentencing and procedural limitations on his appeals. Boyd had been convicted of a murder committed in the course of a 1986 Memphis robbery. He claimed the shooting had been an accident. According to Governor Bredesen, he commuted Boyd’s sentence because the claims were never comprehensively reviewed due to ineffective post-conviction counsel. Governor Bredesen released a statement at the time that said: “his appears to me an extraordinary death penalty case where the grossly inadequate legal representation received by the defendant at his post-conviction hearing, combined with procedural limitations, has prevented the judicial system from ever comprehensively reviewing his legitimate claims of having received ineffective assistance of counsel at the sentencing phase of his trial . . . this combination of inadequate representation and procedural limitations within the judicial system raises in my mind a substantial and unresolved doubt that the trial jury would have imposed the death penalty had the defendant received competent legal representation.”

Gaile Owens was convicted and sentenced to death for hiring a man to kill her husband in 1986. Governor Bredesen commuted her sentence to life in prison on July 14, 2010. She had been scheduled to be executed in September of that year. Owens originally agreed to plead guilty in exchange for life in prison, but the plea deal was withdrawn when the hitman, with whom she was being tried jointly, refused the same offer. Additionally, though Owens claimed to have been abused by her husband, and the forensic coordinator at the local jail said that Owens demonstrated clear signs of battered woman syndrome, the defense was never raised at trial. Owens’ son Stephen, a witness against her at her trial, later reconciled with his mother and advocated for the governor to grant clemency. In commuting Owens’ sentence, Governor Bredesen cited both the rescinded plea deal and possible abuse, as well as the desire to bring Owens’ sentence in line with similar crimes, as reasons for granting clemency. A year after her commutation, Owens was released based on good conduct during the 26 years she spent in prison.

Edward Jerome Harbison was convicted of murdering Edith Russell in 1983. Governor Bredesen commuted his sentence to life in prison without parole on January 11, 2011. Harbison was found by the courts to be borderline intellectually disabled and had a history of childhood trauma. Governor Bredesen’s commutation of Harbison was accompanied by 22 non-capital pardons, all done in the final days before Bredesen exited office.  Bredesen said he spoke with then-governor-elect Bill Haslam before commuting Harbison’s sentence since Harbison’s execution was scheduled to occur under Haslam’s governorship. Governor Bredesen explained the commutation by saying: “It’s obviously a heinous crime, but when I compare it to others I don’t think it rose to the level of a death penalty crime, so I knocked it down one notch to life without parole.” Before his commutation, Harbison’s case was heard by the U.S. Supreme Court, which held that indigent death row prisoners have a right to federally appointed counsel in their clemency proceedings.

Recent Reprieve: Harold Wayne Nichols (2020)

On July 17, 2020, Governor Lee granted Harold Wayne Nichols—due to be executed on August 4, 2020, amid the global COVID-19 pandemic—a reprieve of execution for the remainder of 2020. This was the first time Governor Lee has used his clemency authority to substantively delay the execution of a prisoner scheduled to be put to death during his term. In granting the reprieve, Governor Lee noted that moving forward with the execution during the pandemic was “not the right thing to do,” and also stated that it would not be fair to move forward with the execution given that the attorneys’ ability to prepare and present the case for clemency was so hampered by COVID-19 restrictions. Lee stated, “That individual, the inmate there, is allowed due process in order to get to a place where they can present a clemency request and they did not believe they had the appropriate environment to provide a clemency request. […] And it’s important that we look at every single case completely and their clemency requests completely and because that couldn’t be done, it didn’t make sense to move forward there.” Lee also mentioned that his clemency decision was influenced by the fact that the state’s prisons were almost entirely closed due to the threat of COVID-19, which compromised Nichols’ ability to visit or communicate with his religious advisor while he remained under execution warrant. Before Governor Lee announced the reprieve, attorneys for Mr. Nichols had filed a federal civil rights lawsuit in a Tennessee district court alleging that, among other things, proceeding with Mr. Nichols’ execution during the pandemic was a violation of his constitutional rights because of the limitations the pandemic placed on consultation with counsel and visitation with his spiritual advisor.

Denials (where newsworthy or controversial)

David Earl Miller (2018)

David Earl Miller was sentenced to death in 1982. Though Miller chose to be executed by the electric chair after the Tennessee Supreme Court denied challenges to the state’s three-drug injection protocol, he argued that his choice of electrocution instead of lethal injection was coerced and that both methods were unconstitutionally cruel and unusual. Miller had a long history of mental illness and suffered extensive sexual and physical abuse throughout his childhood, which was detailed in an expansive 89-page clemency petition to Governor Bill Haslam. Governor Haslam rejected the petition with a single sentence: “After careful consideration of David Earl Miller’s clemency request, I am declining to intervene in this case.”

Donnie Edward Johnson (2019)

Donnie Edward Johnson killed his wife, Connie Johnson, in 1984. Johnson never contested his guilt and refused any final appeals as his execution date approached. Instead, the month before his scheduled execution, Johnson petitioned for clemency from Governor Bill Lee based on Johnson’s religious conversion while in prison and the positive impact he had on his fellow prisoners. During the decades he spent on death row, Johnson rose to the rank of Ordained Elder in the Seventh Day Adventist Church. Johnson’s clemency appeal was bolstered by the support of prison ministers, volunteers, and, in particular, his stepdaughter, the daughter of his victim. Connie Johnson’s daughter reconciled with Don Johnson in 2012 and spoke out against his execution, going so far as to request a meeting with Governor Bill Lee to share her story of “Christian forgiveness.” Governor Lee chose not to intervene in Johnson’s execution, stating: “After a prayerful and deliberate consideration of Don Johnson’s request for clemency, and after a thorough review of the case, I am upholding the sentence of the state of Tennessee and will not be intervening.” Johnson was executed by lethal injection on May 16, 2019.

Charles Walton Wright (2019)

Charles Walton Wright was sentenced to death in 1985. His execution was scheduled for October 10, 2019, but he was later diagnosed with cancer and expected to die before he could be executed by the state. Wright’s legal team quickly petitioned for the governor to either reduce his sentence to time served or to life without parole, either of which would have allowed Wright to receive a medical furlough to spend his remaining days with his family. Death row prisoners are not eligible for medical furlough.

Although his clemency petition was bolstered by a letter of support from Bob Clement, a former U.S. Representative and son of a former Tennessee governor, Wright was not one of the 23 prisoners granted clemency by Governor Bill Haslam on his final day in office. Haslam’s successor, Governor Bill Lee, never formally issued a statement regarding Wright’s clemency petition. Wright died of natural causes in May 2019, hours after Wright’s friend and fellow death row prisoner, Don Johnson, was executed.

Stephen Michael West (2019)

Stephen Michael West was sentenced to death in 1987. West was convicted for the kidnapping and murder of Wanda Romines and the kidnapping, rape, and murder of her daughter, Sheila Romines. In his clemency plea to Governor Bill Lee, West wrote that his accomplice, Ronnie Martin, was the person that actually killed both victims, and, during trial, West’s defense attorney decided not to play the recording of Martin admitting as much. West also argued that the jury never heard about his abusive upbringing, and West further petitioned that he had been treating a previously existing mental illness while in prison. Finally, West wrote to the governor that, while in prison, he had become involved with the prison ministries organization, Men of Valor. Prior to becoming governor, Lee had been a mentor and board member for Men of Valor for many years, and he participated in the organization’s all-day criminal justice reform conference as the keynote speaker on September 20, 2019. Lee decided not to intervene in West’s execution, stating that, “The criminal justice process made a determination years and years ago about this case and I trust that system and that process, and that’s what I rely on as I go through this process.” West was executed by electrocution on August 15, 2019.

Leroy Hall Jr. (2019)

Leroy Hall Jr. was sentenced to death in 1992. During Hall’s time in prison, his attorneys say that he became functionally blind as a result of improperly treated glaucoma. After becoming blind, Hall’s lawyers argued that executing a blind prisoner would be a “spectacle” that would “offend humanity.” In Hall’s petition to Governor Bill Lee, his attorneys argued that one of the jurors had been a victim of sexual and domestic abuse before the trial, and the juror had not disclosed it during jury selection. In her 2019 declaration, the juror conceded that she was biased against Hall, and she admitted that she hated Hall because he reminded her of her abusive husband. Hall’s petition argued that this juror’s undisclosed bias made it impossible for him to have received a fair trial. However, Governor Bill Lee denied Hall’s petition, stating that, “The justice system has extensively reviewed Lee Hall’s case over the course of almost 30 years, including additional review and rulings by the Tennessee Supreme Court yesterday and today. The judgement and sentence stand based on these rulings, and I will not intervene in this case.” Hall was executed by electrocution on December 5, 2019.

Nicholas Sutton (2020)

Nicholas Sutton was sentenced to death in 1986 after killing another prisoner. Prior to receiving this sentence, Sutton was already serving life in prison for the murder of three people. Former federal judge Kevin Sharp represented Mr. Sutton in his petition for executive clemency before Governor Lee, and he stated that Sutton was “a once-in-a-lifetime case for clemency.” In his petition to Governor Bill Lee, Sutton presented affidavits affirming that Sutton had saved the lives of three corrections officers and two prisoners while on death row, and that both correctional staff and prisoners would be safer with Sutton in prison. Additionally, Sutton’s petition included numerous accounts in support of his clemency from family members of some of his victims, as well as some of the jurors that sentenced Sutton to death. Further, his petition argued that the jury did not see evidence that, as a child, Sutton had suffered severe abuse from his father and had even become addicted to drugs after using them with his father at age 12. Sutton’s petition stated that, while on death row, he was able to use the stable environment to overcome his addiction and become a reformed prisoner. In denying Sutton’s petition, Lee said, “After careful consideration of Nicholas Sutton’s request for clemency and a thorough review of the case, I am upholding the sentence of the State of Tennessee and will not be intervening.” Sutton was executed by electric chair on February 20, 2020.

Click here for more information and resources related to Tennessee capital clemency.

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