HB 3903 would place strict limits on reviews of death penalty cases (Capitol Update)

House Bill 3903 by Rep. John Pfeiffer, R-Orlando, that passed out of the Judiciary-Criminal Committee last week, exposes an ongoing dispute between the state’s prosecution forces and the Pardon and Parole Board and governor. A recent battle between the Oklahoma County District Attorney’s Office, the Attorney General’s Office, and the Pardon and Parole Board culminated with a recent decision by Gov. Stitt to commute the death sentence of Julius Jones after the Board had recommended clemency. Jones’ request for clemency was partially based on his claim of innocence. 

HB 3903 puts strict new limits on defendants, the board, and the governor in death cases. First, the bill provides if an inmate commits a misconduct after requesting commutation, the commutation request shall be denied. Denying a chance for a defendant to avoid the death penalty based on a prison rule infraction, regardless of how trivial it might be, lacks any sense of proportionality, to say the least. It pretty much says any excuse will do to deny clemency.   

Second, the bill says if an inmate receives or has received a favorable recommendation for commutation, the inmate may not receive or apply for any additional commutation on the same sentence. This would seem to say if a defendant has gotten a favorable recommendation by the board, regardless of the governor’s action, the defendant would be forever barred from bringing another request before a new board or a new governor. 

Third, clemency for an inmate sentenced to death may only be considered when execution is imminent, meaning an execution date is pending. This could delay clemency consideration for years in the case of a moratorium on the death penalty or a lengthy appeal process, no matter how meritorious the case for clemency. 

Fourth, the board may only recommend to the governor the grant of clemency for a death sentence to a sentence of life without the possibility of parole. This is obviously meant to circumvent the chief executive’s judgment and limit his clemency powers. 

And finally, the most egregious provision of the bill says the Pardon and Parole Board is empowered to consider recommendation of clemency for an inmate sentenced to death for the sole reason of mercy or leniency. The board may not hear a claim of actual innocence as that is the role of the Oklahoma Court of Criminal Appeals. Both Rep. Pfeiffer, who is a thoughtful legislator, and the assistant attorney general who was helping him present the bill in committee said the sole determiner of actual innocence is the court system. Case closed. The Pardon and Parole Board, and therefore the governor, should have no role in reviewing that determination. 

That is simply incorrect, for a very good reason. In court, once a trier of fact — the judge or jury — has determined what the facts are, if that factual determination is wrong, it is extremely difficult for the courts to correct the mistake. All subsequent decisions are based on the previously determined “facts.” Realizing that, the legislature in 1987 passed the Post-Conviction Relief Act to give a defendant another chance to convince a court that a mistake was made. But that Act has strict legal limitations which are quite difficult to overcome. Rightly so, because at some point the court system must reach finality. 

But HB 3903 fails to respect the role of the chief executive as a separate actor who has power to grant clemency for whatever reason he considers proper, and the Pardon and Parole Board to make a recommendation to him. In death cases, above all, one last chance to avoid a mistake should be left in the law as it currently exists.

If the governor, in a rare event, hears enough to put a doubt in his mind whether he is executing an innocent person, and if that doubt is bolstered by the recommendation of the Pardon and Parole Board, he should be able to keep from having the blood on his hands. Even the most ardent proponent of the death penalty does not want to see an innocent person executed, and no one can rationally argue it has not happened. If prosecutors and the attorney general are so sure they got it right they should trust the governor, who is senior to them in executive authority to get it right, too.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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