By: Michael Olson
Bigler Stouffer, who was sentenced to death for the 1985 murder of Putnam City teacher Linda Reaves, and the shooting of Doug Ivens, is scheduled for execution on Thursday, December 9, 2021. Oklahoma Governor Kevin Stitt denied his clemency earlier this month and while Stouffer has appealed to the Supreme Court for a stay of execution, as of now, it appears that the State of Oklahoma is preparing to take his life.
Stouffer’s execution is the final one scheduled in the United States for 2021, and one of two Oklahoma death row inmates who have maintained innocence, the other being Julius Jones, creating a unique situation where the Pardon and Parole Board is looking for remorse and contrition within Stouffer, but he cannot fully do so, because he is maintaining his innocence of the crime of which he was convicted.
The United States Supreme Court has offered contradictory guidance on the efficacy of clemency as a mechanism to police wrongful convictions. In Herrera v. Collins, decided in 1993, the Supreme Court held that clemency is the “fail safe” of the criminal justice system, state clemency processes are the proper mechanism for assessing claims of innocence, and clemency is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted. These holdings affirmed that claims of innocence should be decided through clemency when all other options have been attempted.
However, just five years later, in Ohio Adult Parole Authority, et al. v. Woodward, the Supreme Court afforded only “minimal” due process protections to defendants in clemency hearings. In that decision, the Supreme Court stated that clemency proceedings “[are] not an integral part of the . . . system for finally adjudicating . . . guilt or innocence. Thus, despite the assurances in Collins that clemency is a “fail safe,” they determined that clemency is not integral enough to include due process safeguards as they would during the exercise of the right of first appeal. Despite the Supreme Court’s language, it is apparent from looking at the historical context of clemency and its practice in Oklahoma, that clemency proceedings are uniquely ill equipped to determine innocence.
Historical Review of Clemency
The term “clemency” derives from Clementia, the Roman Goddess of mercy and forgiveness, and as such, a historical look at the practice reveals that throughout much of human history clemency was utilized more as a political tool than a tool to ensure justice. Julius Caesar, Henry I, and Edward I, all used acts of clemency to further political or economic ends. After the founding of the United States, clemency was once again used as a political tool, with Alexander Hamilton, arguing that clemency was a tool that could be used to hold together the Confederation during “seasons of insurrection.” In fact, an analysis of early pardons shows their political nature. George Washington pardoned 31 individuals, with fifteen related to treason and six to violations of unpopular taxation. Further, John Adams, Thomas Jefferson, and James Madison pardoned 97 individuals for either treason, violation of revenue laws, or desertion.
In modern times, the use of clemency as a political tool has continued, however, how it isn’t used has become the main focus. During the 1960s, leading conservatives used criminal justice policies to combat the civil rights movement. As such, the following decades ushered in a “tough on crime” era, wherein criminal justice policies such as mandatory minimums, three strike laws, and the war on drugs, were enacted. With that political climate in place, the use of clemency, both federally and in states fell precipitously. For example, the grants of clemency fell from 18% under President Nixon to just 4% under President George H.W. Bush.
Clemency and Innocence
Thus, it becomes clear that historically, granting clemency, or more recently, denying clemency, has a political motive wholly separated from the pursuit of justice. So why has the Supreme Court argued that clemency is a key component of the Criminal Justice System? There are three main issues with using clemency as a tool to curb wrongful convictions. First, there is a lack of transparency. In Oklahoma, the Pardon and Parole Board publishes the results of their hearings, but does not provide detailed reasons for their decisions. Further, the Governor who makes the final determination, is under no obligation to disclose his or her reasoning. This makes public oversight of the process impossible, or at the least overly burdensome, forcing citizens to file open records requests, and thus makes “public scrutiny of exculpatory issues” difficult, and “thereby prevents innocents from being identified.”
Further, as the final adjudicator of innocence claims, it is essential that clemency, in order “[t]o serve properly . . . as a safeguard . . . be checked, so as to require, at the very least, that all applications for clemency are meaningfully reviewed.” This becomes impossible because of the high thresholds in place for clemency in Oklahoma. For instance, to be eligible for a pardon, a person must have (1) completely discharged the entire sentence; (2) have paid all fines, fees, restitution, court costs, etc., in full; and (3) must not have any pending charges. Meanwhile, commutations undergo a two stage process, in which the first stage is a simple jacket review in order to determine the merit of the commutation without interfacing with the witnesses or evidence first hand. These are not meaningful reviews, and thus, clemency cannot be a safeguard against wrongful conviction when all those who apply are not given a meaningful review. Oklahoma does indicate that clemency claims are investigated but does not clarify the extent or form of the investigations, again raising issues of transparency.
Finally, the Pardon and Parole Board looks for contrition during their hearing and an innocent individual cannot provide that, as they cannot be remorseful for a crime they did not commit. Thus, the requirements for an act of clemency, both those rooted in the law, such as eligibility requirements and transparency issues, and those rooted in practice such as the inability for an innocent person to have remorse for the crime committed, conspire to make clemency ineffective as a tool to liberate the innocent.
Bigler Stouffer remains scheduled for execution despite his claims of innocence. Stouffer has claimed an independent lab investigation found no blood on his clothing, in direct contradiction to evidence put forth during his trial.
However, his execution continues. Clemency has historically been used as a political and economic tool, and thus, is ill equipped to further the interests of justice, conscience, and morals, because the process has multiple barriers, including issues of transparency and eligibility, to determining the innocence of the applicant.