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November 19, 2021

Can Oklahoma's current governor really preclude all future governors from further clemency grants for Julius Jones?

I just had a chance this morning to look at this actual executive order that Oklahoma Governor J. Kevin Stitt signed to commute the death sentence of Julius Jones to life imprisonment without the possibility of parole.  The document is interesting in part because it states that the Pardon and Parole Board's recommendation of a commutation to a "sentence of life with the possibility of parole" was not authorized by the Oklahoma Constitution or Oklahoma law and that the "Oklahoma Constitution and other laws of the State also do not provide the Governor authority to grant any such recommendation."  But speaking of a lack of authorization, I was especially struck by this additional part of the executive order:

The Governor has the power to grant commutations "upon such conditions and with such restrictions and limitations as the Governor may deem proper .... "  I hereby place the following conditions upon this commutation:

Julius Darius Jones shall not be eligible to apply for or be considered for a commutation, pardon, or parole for the remainder of his life.

In addition to laws prohibiting the Pardon and Parole Board from recommending and the Governor from granting to Julius Jones life with parole, now or in the future, the Pardon and Parole Board's Rules prevent Jones from re-applying for commutation.  Title 515, Chapter 15, Subchapter 15 of the Oklahoma Administrative Code states, "After receiving a favorable commutation of a sentence from the Governor, an Inmate is ineligible to apply for an additional commutation on the same sentence."

Though I strongly dislike and disfavor any policy of ever precluding a person from ever re-applying for clemency, I suppose I can see some viable legal basis for state laws or rules to preclude repeated clemency applications.  But, critically, this order seems to be trying to preclude all future Oklahoma executive officials from being able to even "consider" Jones "for a commutation, pardon, or parole for the remainder of his life."  And at the start of this order, Gov Stitt states his condition even more broadly: "I ... hereby commute the death sentence of Julius Darius Jones to life imprisonment without the possibility of parole, on the conditions that he shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole."  (Emphasis added.)

Jones is likely to live in prison for many decades, and further evidence of his innocence or other changed circumstances in the years ahead might want some future governor to consider and possibly grant some other form of clemency.  I do not think there is any legal basis for a current governor to tie the hands of all future governors in the way, but I suspect Jones and his allies will be disinclined to worry or litigate about this future issue while still celebrating his removal from Oklahoma's death row.

A few prior related posts:

November 19, 2021 at 09:55 AM | Permalink


Disclaiming any knowledge beyond press reports, I am inclined to disagree with the prediction in the last sentence.
My bet would be that Jones and his supporters, who strongly believe in his innocence case and just as strongly believe that the Governor of Oklahoma can hardly by proclamation preclude his release on those grounds, will want to take advantage of the currrent momentum and attention to press the case forward with vigor.

Posted by: Eric | Nov 19, 2021 10:30:46 AM

I agree that Jones supporters may seek court action to get relief there directly on innocence claims, and nothing in this clemency grant condition precludes that kind of court effort. But any challenge to future clemency limits might not be wise while Stitt is still gov (when he could still push for legislation to create more clemency limits).

Posted by: Doug B. | Nov 19, 2021 10:54:34 AM

My gut feeling is while the pardon conditions might be able to tie Jones' hands, they can't do that to a future gov.

BUT, assuming I got the math right, Stitt's only about halfway into a 4-year term. Plus he can run once for another term, and, while I don't follow OK politics in the slightest, I'm not aware of any notable impediments to his reelection. So, prudence would seem to counsel not rocking the boat at least while Stitt remains in office.

I don't know if under OK or maybe federal law, Jones can challenge the condition right away without having to wait for a future gov to actually extend a pardon. But even if he could, it seems like the best remedy possible there is nullifying the condition. And what good does that do if a different, more pardon-inclined gov. hasn't even taken office yet?

Posted by: kotodama | Nov 19, 2021 8:08:52 PM

I think Doug's analysis of this is spot on. The prohibition on receiving commutation is not binding on this (or any future) governor, since the power to commute is not established by the Oklahoma Administrative Code.

I think the language regarding the unconstitutionality of sentence recommendations for clemency grants by the Pardon and Parole Board has a lot to do with the likelihood that the Board will be considering a slew of new death penalty clemency requests in the coming months, now that Governor Stitt's administration has established a specific process for doing so.

Posted by: Stephen Galoob | Nov 19, 2021 9:11:17 PM

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