From the Desk of James Boren:

Dear Honorable Members of the Louisiana Board of Pardons,

I am writing regarding the 56 applications for clemency that have recently been filed on behalf of the individuals on Louisiana’s Death Row. I come to you as an attorney who has spent his career studying the death penalty and representing those who face this most severe penalty, but I also come to you on behalf of a diverse group of more than [_____] Louisiana attorneys and scholars. None of us represents the individuals who have filed clemency applications, but we all have a deep interest in the way in which Louisiana metes out punishments.

The signatories on this letter have each come to the conclusion that Louisiana’s death penalty is too flawed to be carried out as it currently exists. Louisiana’s condemned arrived at Death Row not because they committed a crime that was far more heinous than crimes committed by people who received life sentences. They have been condemned to death because of a confluence of arbitrary factors, including poverty, race, and geographical location, and most of the individuals on Death Row suffer from mental health issues, intellectual deficits, or youth which make them less culpable than the worst of the worst.

And there is more: those arbitrary death sentences were imposed within a system with an error rate so high that the vast majority of capital sentences are reversed. The people still sitting on Death Row are no different than the people whose sentences have been reversed. These reversals included cases of innocent people being on Death Row, and the facts and statistics demonstrate that additional innocent people remain on Louisiana’s Death Row.

Given these troubling realities, we cannot look away or remain silent. We are, therefore, unreservedly asking the Board to recommend the commutation of the applicants’ death sentences to life in prison and to promptly send these recommendations to the Governor so that he may exercise his power to commute those death sentences consistent with his values. We ask you to do this in recognition of Louisiana's broken death penalty system and in service to the pursuit of justice.

Louisiana’s Death Penalty System Is Broken

          The flaws in Louisiana’s death penalty are varied, and the statistical evidence of those flaws is significant. To name but a few:

Louisiana’s death penalty system is intolerably error-prone, risking the execution of an innocent person, as well as of those who lack the extreme culpability necessary to justify this irrevocable punishment.

      *Louisiana’s unreliable death penalty system has a reversal rate of more than 80%. That is, over 4 out of 5 death sentences imposed since 1980 have been reversed either by the courts or by agreement of the State.

     *Nine innocent people have been exonerated from Louisiana’s death row in the past 24 years.

   *Six of the nine people exonerated in Louisiana since 1994 were Black; seven of the nine were falsely convicted of killing white victims.

  *There are still individuals on death row in Louisiana today who have compelling claims of actual innocence.

As set forth in great detail in their individual clemency applications, the vast majority of condemned prisoners suffer from some form of mental illness or intellectual disability.

Reflecting its historical links with slavery and lynching, Louisiana’s death penalty is disproportionately implemented against people of color.

   *42 of the 57 people on Louisiana’s death row (74%) are people of color; 38 of them (67%) are Black. Black people, however, make up only one-third (33%) of the state’s general population.

    *Racial disparities are especially stark in those parishes with the highest use of the punishment: All 12 individuals sentenced to death from East Baton Rouge are Black as are all 3 individuals on death row from Orleans Parish are also Black. 6 of the 7 individuals on death row from Jefferson Parish are Black or Hispanic. 13 of the 15 individuals on death row from Caddo Parish are Black.

  *63% of Louisiana’s death row prisoners were convicted of killing a white person; only two white people are under a death sentence in Louisiana for killing a Black person.

  *There are 27 people on Louisiana’s death row who were 25 or younger at the time of their crime; 13 of them were 21 or younger. 22 of these 27 young offenders are Black and one is Hispanic.

  *Several of the Black men on Louisiana’s death row were convicted and sentenced to death by all-white juries.  

Louisiana’s death penalty is geographically arbitrary, with its use concentrated in a few high-use jurisdictions.

  *East Baton Rouge and Caddo account for 42% of the state’s death sentences, and 70% of Louisiana’s death sentences were imposed in just seven of the state’s 64 parishes.

  *22 of the 24 prisoners sentenced to death in Caddo and East Baton Rouge Parishes are Black.

As Justice Breyer of the United States Supreme Court stated about one Caddo case, “[the defendant] may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography. One could reasonably believe that if [the defendant] had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.” Tucker v. Louisiana, 578 U.S. 1018, 1019 (2016) (Breyer, J., dissenting from the denial of certiorari).

It was precisely these problems, and many more, that led Governor John Bel Edwards to ask the Louisiana Legislature this session to abolish the death penalty. As Governor John Bel Edwards explained:

"Our criminal justice system is far from perfect. Over the same 20 years [since the last contested execution] 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 wholly inconsistent with Louisiana’s pro-life values as it quite literally promotes a culture of death."

Governor John Bel Edwards statement, June 16, 2023. The abolition bill, however, died on the committee floor.

Governor Edwards has stated quite clearly his belief that Louisiana’s capital punishment system is deeply flawed, and he should be allowed to exercise the power that he has been given by the Constitution to remedy the injustice before him.      

Executive Clemency In Capital Cases Is Sacrosanct

Clemency in capital cases provides the final safeguard between Life and Death at the hands of the Government.

The executive authority to grant clemency in capital cases is so sacrosanct that every capital jury is instructed that “the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority … commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole.” La. Const. Art. I, § 16. That instruction, previously provided only by statute, was originally struck down by the Louisiana Supreme Court as unconstitutional. The Court found in part that such an instruction “tends to diminish the jury’s sense of responsibility for its action.” State v. Jones, 94-0459 (La. 7/5/94), 639 So. 2d 1144, 1152-53. But in 1995, the legislature passed a constitutional amendment to ensure that capital jurors were instructed clearly about the Governor’s commutation power. The amendment, which makes no reference to the Pardon Board, requires jurors to be informed that the Governor alone has the authority to commute a death sentence. It is not and has never been the case that what happens in the court system is the final word in a capital case, and juries are so instructed at trial. As even Attorney General Jeff Landry recently told the Louisiana Supreme Court, “Only the governor may grant pardons and commutations because this is an exclusive, constitutional power of the executive branch of the State of Louisiana, and not the judicial branch.”[1]

The law is clear that death is different, and clemency is no exception. Louisiana law provides unique procedures for seeking and addressing clemency in capital cases. Title 22 and this Board’s policies and directives reflect the clear difference between capital and non-capital cases, providing for expedited processes, broad waiver rules, and a simple majority vote on applications. That these rules are ultimately intended to place the life and death matter of clemency in a capital case promptly on the Governor’s desk is perhaps best exemplified by the provision allowing the Governor to put capital cases on the Board’s agenda "at any time":

"Notwithstanding any provision to the contrary by Board policy, in any case in which the death sentence has been imposed, the Governor may at any time place the case on the agenda and set a hearing for the next scheduled meeting or at a specially called meeting of the Board."[2]

While the Governor alone has the power to grant clemency, this Board acts as a critical gatekeeper with respect to the clemency cases that will reach the Governor’s desk and has broad discretion over such decisions. We are aware that this Board recently returned the applications of at least 12 of the 56 Death Row applicants without allowing those applications to ever reach the Governor’s desk.

We are now expressly asking that you reinstate any dismissed petitions, recommend clemency to all of the individuals on Death Row, and allow the Governor the opportunity to exercise his constitutional prerogative to determine whether to commute the death sentences to life imprisonment. We ask you to recommend commuting the 56 death sentences to life sentences because Louisiana’s death penalty system has proven itself unable to distinguish between those who should live and those who should die.

While we know that the burden you shoulder on a daily basis is a tremendous one, it has been never more important to the fate of Louisiana than now.

Thank you for considering this request, which is being made on behalf of the signatories listed below.

cc: Governor John Bel Edwards