Georgia's parole board did more Wednesday than deny clemency for death row inmate Kelly Renee Gissendaner – it created a new state secret.
Virtually every aspect of Gissendaner’s case before the State Board of Pardons and Paroles is – and will remain – confidential. Her clemency hearing on Tuesday was closed to the public, except for a brief photo opportunity at the beginning. Deliberations by the parole board’s five members are private. No public record is kept of how each board member voted – or of whether any favored mercy.
Since the Red Scare days of the 1950s, state law has deemed the vast majority of the parole board’s work to be state secrets. Unlike a court, which typically issues a written opinion, the board gives no public explanation for its rulings. In fact, the board’s members rarely deliberate together or even discuss cases with one another.
The parole board's clandestine nature was the subject of a series of investigative reports last summer and fall in The Atlanta Journal-Constitution. The newspaper reported that the board had quietly allowed hundreds of convicted felons to regain the right to buy, own and carry firearms, a growing number of them violent criminals who had had served time for crimes such as murder, rape and child molestation.
Before the Journal-Constitution published the articles, board members declined requests for interviews and instructed senior staff members not to answer questions about the agency’s operations.
In a later interview, however, the board’s executive director, Michael Nail, explained the clemency process.
The board usually learns of a scheduled execution about two weeks in advance, Nail said, and members turn their attention to the condemned inmate’s case.
“Their business stops with the exception of that,” Nail said.
A member of the board’s staff interviews the inmate by videoconference; board members get a written summary and a copy of the video.
The board’s attorney prepares a summary of the case, based on trial transcripts and prison records.
Later, the board schedules a clemency hearing that, except for the photo op, is held behind closed doors. In what Nail called a “free-flowing conversation” with board members, the inmate’s lawyer can argue for mercy. Then, the prosecutor and, in most cases, members of the victim’s family, come in to oppose clemency. The inmate’s lawyer is not present for the second part of the hearing, and no one representing the inmate is allowed to question the prosecutor or victim’s relatives.
Afterward, the board members meet to discuss the case. Then they split up for individual deliberations. Each member casts a ballot in secret – “yes” to grant clemency, “no” to allow the execution, or “delay” to get more information.
Only two people ever know how the members vote, Nail said: the board’s lawyer, who counts the ballots, and the board chairman.
If the process were open, Nail said, board members might be susceptible to political pressure or mob intimidation. He said board members’ lives were threatened in 2011 while they were considering clemency for Troy Davis, an inmate whose case had drawn international attention. Davis was convicted of killing a Savannah police officer, but his guilt was called into question when virtually every eyewitness to the shooting recanted their trial testimony.
While Davis’ case was pending, Nail said, protestors produced T-shirts with pictures of board members and the caption, “Wanted: Dead or Alive.” As a precaution, Nail said, board members temporarily moved out of their homes.
Appellate courts routinely identify the judges who vote for or against a defendant, and publish their conclusions.
The parole board, though, sees no reason to change, Nail said.
“That’s the way it’s always been,” he said.
State lawmakers may force a change, however. The House is considering a bill that would make repeal many of the board's confidentiality provisions, turning state secrets into public records.
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