Texas's Failed Clemency Process

Yesterday evening at 6:18 p.m. CST, the State of Texas executed a man who posed no danger to society; a man who was universally understood to have undergone complete transformation and rehabilitation since his 1993 conviction for burglary and murder. Willie Earl Pondexter, executed two days shy of his 35th birthday, was a changed man.

Undisputedly, Texas did not execute the same violent, young person who committed his crime over 15 years ago. In the words of a corrections officer who had come to know Pondexter during his incarceration, he "could safely live out his days in a structured environment." The officer stated, "You would be hard-pressed to find anyone to say something bad about Pondexter."

Texas justifies its death sentences on a jury's finding that a convicted capital murderer will constitute a threat of future danger if not executed. In 1976, in Jurek v. Texas, the Supreme Court approved this sentencing scheme, stating that a jury's determination of future dangerousness is no "different from the task performed countless times each day throughout the American system of criminal justice." The Court cited bail as but one example. But while a wrong bail decision can later be modified if turns out a defendant is not a flight risk or risk to the public, there is no solution when it turns out a jury's determination of future dangerousness — and resulting death sentence — has proven wrong.

Texas law provides no formal mechanism for revisiting a jury's determination of future dangerousness — something that could well spare a condemned person who, like Pondexter, turns out not to be violent. That leaves the state's executive clemency process, the procedure the U.S. Supreme Court in Herrera v. Collins, called our criminal justice system's "fail safe."

But the fail safe utterly failed in Pondexter's case. The State of Texas thwarted the clemency process by reportedly harassing Pondexter's legal team. His attorneys sought to interview corrections officers and obtain statements that would affirm his transformation during incarceration. But according to published accounts and a lawsuit filed by Pondexter's attorneys, two Harvard law students who had sought to interview a corrections officer in Polk County, near Texas's death row, were reportedly directed by a sheriff's deputy to the sheriff's office, issued trespassing warnings, interrogated, told they likely would be jailed if they returned to the guard's property, and told to advise the sheriff's office before returning to the county. Other officers whom the defense team approached said they feared being written up or fired if they spoke with the defense team about Pondexter or signed an affidavit in his favor.

Without the information the guards had to impart about Pondexter, of course, neither the Texas Board of Pardons and Parole nor the Governor could make an accurate determination of whether Pondexter's extraordinary rehabilitation warranted sparing him the death penalty in favor of living out the rest of his days in prison. Pondexter had no meaningful access to the "fail safe" of clemency.

If Texas' process for determining who lives and who dies cannot be relied upon — and Pondexter's case clearly exposes that it cannot be — then the state should forfeit its right to execute anyone.