1) A death warrant is
signed by a state court judge setting the
2) A clemency petition
is filed with the Texas Board of Pardons
and Paroles by the defence on behalf of the prisoner.
3) Members of the Texas
Board of Pardons and Paroles review the
petition and cast a vote on whether to recommend a commutation,
conditional pardon or reprieve. They also decide whether or not a
hearing will be convened on the clemency petition to hear
testimony from witnesses.
4) If a majority of the
Board votes for a commutation, the Board
recommends to the Governor that clemency be granted.
5) The Governor has full
discretion to either accept or reject
the Board's recommendation on clemency.
6) The Board has no independent
power to grant relief, but can
only make recommendations to the Governor.
Powers of the Governor
** If the Board
votes against clemency, the Governor has no
independent power to commute the sentence. The Governor can only
commute a death sentence upon the recommendation of the Board of
Pardons and Paroles.
** Under Texas law,
the Governor has the power to grant a
condemned prisoner one 30-day stay of execution. No
recommendation from the Board is necessary for the Governor to
take this action. Any further executive reprieves require
approval by the majority of the Board, who then make the
recommendation to the Governor.
** The Governor may formally
request that the Board consider
convening a full clemency hearing to review the petition of a
Other Sources of a Stay of Execution
** Aside from the
one-time stay that the Governor may grant,
both the Board and a court of law can issue a stay of execution
at any time and for any duration.
TEXAS CLEMENCY PROCEDURES FAIL
TO PREVENT WRONGFUL EXECUTIONS
There is no meaningful clemency process in Texas
** In Texas (and
elsewhere in the United States), clemency is
seen not as a due process right of all condemned prisoners, but
rather as a privilege to be dispensed or withheld as the state
executive authority sees fit. There is no judicial oversight of
clemency procedures and no legal guarantee of access to
meaningful clemency review.
** The deliberations of
the 18-member Board of Pardons and
Paroles are shrouded in secrecy. Board members are appointed by
the Governor and are not directly accountable for their decisions
to the public or to any legislative body. There seem to be no
formal rules in place to guide the Board's decision-making
** Board members
are scattered across 8 regional offices
throughout Texas. The Board does not convene (even in a closed
meeting) to discuss the clemency petition and hear the views of
its members. Instead, members often communicate their individual
decisions on clemency petitions by fax.
** Board decisions
on clemency are generally taken without
convening a clemency hearing. Members are thus unable to
collectively hear all of the material presented in the clemency
petition, to observe the demeanour of witnesses or to seek
** The Board does
not allow the prisoner's lawyer to review and
respond to material presented by the prosecution in opposition to
clemency. Without the opportunity to rebut, the defence is
powerless if the prosecution fabricates material or makes
exaggerated allegations in order to persuade the Board to deny
** In the one recent case
in which the Board did convene a
clemency hearing (Johnny Garrett, 1991), the prisoner was not
allowed to attend.
** Board members have
responsibility for all pardon and parole
cases in Texas: over 20,000 cases come through their offices each
Killing without mercy: the Texas formula
Despite persuasive grounds
for mercy in scores of cases, the
Board of Pardons and Paroles allows executions to proceed without
meaningful clemency review. Even compelling evidence of innocence
is not sufficient to obtain a hearing. Since 1991, at least 5
prisoners with unresolved claims of innocence have been executed
in Texas; none were granted a clemency hearing.
In 1992, Texas death row
inmate Leonel Herrera uncovered
startling new evidence of his innocence. Attorneys for Texas
opposed his appeal to the US Supreme Court, arguing that late
claims of innocence should be resolved by a clemency hearing. The
Supreme Court agreed, finding that late evidence of innocence
does not ordinarily entitle a defendant to a new legal hearing.
"Clemency", the Court stated, "is the historic remedy for
preventing miscarriages of justice". Three months later, Texas
executed Leonel Herrera, after the Board of Pardons refused to
convene a clemency hearing.
return to the CCADP Homepage: www.ccadp.org
This page was last updated October 25, 1998
Canadian Coalition Against the Death Penalty
This page maintained and updated by Dave Parkinson and Tracy Lamourie