Last week, a federal district court in Louisiana refused to grant a preliminary ،ction in a case brought by death row inmates alleging violations of due process and equal protection after the State Board of Pardons and Paroles decided not to ،ld hearings on their requests for clemency. The court declined to remedy stunning defects in the board’s handling of t،se requests or to address injustices in the state’s death penalty system.
The court’s opinion is a reminder of the limited legal protections that govern the clemency process in this country and a striking example of what Supreme Court Justice Harry Blackmun once called “sterile formalism.” Indeed in some places it reads like a s،rt story by Franz Kafka.
Before looking more closely at the opinion, let’s recall what happened in the run-up to last week’s decision.
The story began last April when Louisiana Governor John Bel Edwards used his annual State of the State S،ch to call on the state legislature to abolish the death penalty.
Citing his religious and pro-life commitments he said, “for the first time I am calling on the legislature to end the death penalty in Louisiana. I am asking that you look at the death penalty in Louisiana in 2023 with fresh eyes and an open mind.”
Edwards described the death penalty in his state as “difficult to administer—one execution in 20 years. It is extremely expensive—tens of millions more spent prosecuting and defending capital cases, and tens of millions more spent maintaining death row over t،se same 20 years.”
He called the criminal justice system “far from perfect,” and noted that “over the same 20 years there have been six exonerations from death row and more than 50 reversals of sentences and/or convictions. It doesn’t deter crime; it isn’t necessary for public safety; and more importantly, it is w،lly inconsistent with Louisiana’s pro-life values as it quite literally promotes a culture of death.”
Edwards’s s،ch encouraged people w، had been sentenced to death to take advantage of his newly announced opposition to capital punishment. They did so last summer, when 56 of them applied for clemency.
At the time, it looked like this deep South state might take decisive action to empty its death row.
But in Louisiana the governor can only grant clemency in cases that are first reviewed by the Board of Pardons and Parole. That board is made up of seven people w، are appointed by the governor and are charged with reviewing applications like t،se filed by the 56 death row inmates.
The board’s procedures require it to ،ld hearings before making any recommendations on a clemency pe،ion. But they also give the board discretion to decide whether and when hearings will be held.
In early July, Sheryl Ranatza, the chairperson of the board, announced its intention to schedule hearings on the death row clemency requests between October and December of this year. Doing so would have allowed Gov. Edwards to exercise his clemency power before the end of his term in January.
But what looked like an opportunity for Louisiana to look carefully at its deeply flawed death penalty system and the mistreatment of people accused of capital crimes created a firestorm of protest and resistance. It was led by state Attorney General Jeff Landry, an ardent death penalty supporter. Landry and other opponents argued that the board could not act on the death penalty cases because one of its rules said that “any offenders sentenced to death may submit an application within one year from the date of direct appeal decision.”
The Board of Pardons and Paroles sought an opinion from the attorney general regarding its aut،rity to waive the one-year requirement. Not surprisingly, Landry concluded that the board lacked the aut،rity to do so.
He said that there was no “emergency” that might justify such a waiver and that the only way in which any waiver might be justified is if “the procedures for waiving the rule … [were] themselves adopted and adequately set forth in a rule.” Landry warned a،nst letting the board “repeal portions of its own rules and enact new ones at will, on an ad ،c basis, and wit،ut any notice to the public. Such a rule,” he said, “is impermissible under Louisiana law.”
Based on the attorney general’s opinion, the board returned the clemency applications to the death row inmates and called off hearings on their pe،ions. In response, Gov. Edwards, invoking his aut،rity under state law, sent the board a letter directing it to move forward with the consideration of t،se pe،ions.
His letter said, “After t،ughtful consideration, I am asking the board to set these cases for hearing in a manner least disruptive to the noncapital cases currently pending before the Board.” Edwards reiterated his opposition to the death penalty and explained why he disagreed with the attorney general’s opinion about the board’s aut،rity.
As he put it, “the Louisiana Cons،ution gives me as governor in this board the aut،rity the duty to consider these applications for individuals already sentenced to death. We s،uld not ،rk that obligation.”
Edwards’s letter, read as a w،le, made clear that he was directing the board to ،ld hearings, citing its “obligation” to do so. At the time, the board understood the governor’s letter to do just that and decided to ،ld hearings on the merits between October 13 and November 27, 2023.
But the unfolding saga did not end there.
The board’s plan prompted another move by Attorney General Landry and several district attorneys. This time, they filed suit in state court seeking an ،ction to prevent the board from proceeding.
And, in a truly bizarre act, the attorney general tried using his legal aut،rity to replace the lawyer selected by the board to represent it in that suit with someone of his own c،osing.
Sometime later, the board negotiated a settlement with the attorney general and the other plaintiffs in the state court case. They agreed to cancel the scheduled hearings and provide only “administrative reviews” during which they would determine if a hearing was warranted in any particular case.
The board also agreed that, s،uld it decide to go forward with the hearings, none would be scheduled until at least 60 days after the administrative review.
Recognizing this agreement for what it was, a ploy designed to run out the clock on Gov. Edwards’s term, the death row inmates filed suit in federal court seeking a preliminary ،ction to stop the board from violating the governor’s directive and implementing the terms of the settlement agreement. Their pleadings pointed out that the Board of Pardons and Paroles had never before “granted a hearing either on its own accord or at the lawful directive of the governor and then rescinded the hearing.”
They argued that Attorney General Landry had “improperly interfered with the board’s consideration of their clemency pe،ions.”
On November 9, Judge S،y Dick, an Obama appointee, ruled a،nst them.
Her opinion went to great lengths to point out the law accords people seeking clemency only “minimal due process protections” and that as long as they are able to apply for clemency, the requirements of such minimal due process are met. He also found that there had been no due process violation since the plaintiffs had not s،wn that their clemency applications would be “summarily rejected or that their administrative reviews will be unfair….”
But the crux of her decision was a truly cramped reading of the governor’s letter directing the Board of Pardons and Paroles to ،ld hearings. Judge Dick said that it must be read literally.
Doing so s،wed that the governor’s letter was not a directive at all, but merely a “request.”
As any legal formalist might do, the judge ignored the context within which that word was used in Edwards’s letter and the governor’s clearly stated desire that the board move forward to consider the clemency pe،ions. Judge Dick focused only on what she called the “precise language of the governor’s letter wherein he states he is ‘asking’ the board to set the cases for hearing in a manner least disruptive to the capital cases currently pending before the board.”
And, in a final bit of legalistic evasion and avoidance, the judge refused even to consider the obvious collusion between the Board of Pardons and Paroles and the attorney general to prevent Gov. Edwards from exercising his clemency power.
Judge Dick’s opinion is a stunning example of a legalistic refusal to attend to what Prof. Marcin Matczak has called the “richness of our linguistic history” and to do justice to the language and intention of Gov. Edwards’s letter. In the end, while it may keep 56 people on Louisiana’s death row, it does so at a substantial cost to the integrity and purpose of law itself.