Inside NACDL: Mercy on Death Row

Mercy does not surface often on death row. That is what makes the story of Jason McGehee so remarkable.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

NACDL’s commitment to clemency, particularly the commutation of unnecessarily harsh prison sentences, is now well known to all. NACDL and its Foundation for Criminal Justice were early and critical supporters of Clemency Project 2014. That project was one of the largest and most successful pro bono projects ever undertaken by the legal profession. It led to nearly 900 federal prisoners securing early release from prison as part of the Obama administration clemency initiative. And earlier this year, NACDL partnered with Families Against Mandatory Minimums to found the NACDL/FAMM State Clemency Project. That project is now in a full-fledged partnership with New York state to process hundreds of clemency applicants under an initiative launched by Gov. Andrew Cuomo.

The focus of these programs has been to obtain early release for long-serving inmates pursuant to an executive branch effort to systematically identify prisoners who have earned this consideration. Unfortunately, short of a universal moratorium on capital punishment, no executive has launched any such clemency project for prisoners who are facing a death sentence. But evidence of rehabilitation is no less possible even among those condemned to death. To underscore the universal virtue of the clemency power, I am pleased to devote this month’s Inside NACDL column to an uplifting story by Rick Stack that underscores that fundamental truth. — Norman L. Reimer 

When a sunbeam bursts through a sky saturated by gloomy storm clouds, the contrast and uplift make us take note. Similarly, when a ray of hope escapes a dark, desperate and depressing prison, it is something to celebrate.

It does not happen often that mercy surfaces on death row. These last-resort holding facilities of our misnamed “corrections” or “rehabilitation” systems are where hope goes to die. The derivation of the word “penitentiary” is penance, defined in part as “demonstrating contrition for sin.” Yet the principle of absolution following penance is largely ignored.

That is what makes a story emanating from the Arkansas state penitentiary so remarkable as the pace of executions in the United States accelerates. In October 2017 alone, three states — Texas, Alabama, and Florida — scheduled six executions. Eight more are set before spring.

The case of Jason McGehee is fairly well known and pretty much resolved in the Arkansas judicial system. The facts are clear cut and uncontested as to McGehee’s role in the kidnapping and killing of John Melbourne, Jr. The victim was 15 years old when he was fatally beaten in 1996. McGehee was 20. On Jan. 8, 1998, several boys were convicted, along with McGehee, for the apparent retaliation of Melbourne’s reporting to police about the group’s petty offenses.

Court transcripts and McGehee’s confession place him in the middle of the murder. However, even the state’s attorneys never accused McGehee of landing the lethal punch. They did nail him for being part of the gang that took the victim’s life. The defendant convicted of delivering the fatal blow was too young to receive the death penalty. He is eligible for parole in less than 10 years. Only McGehee, the non-minor, was sentenced to die.

This past spring, during the midst of Arkansas’ execution frenzy in which eight inmates were scheduled for lethal injections within a 10-day period, the state’s Parole Board intervened to spare McGehee, now 41. The administrative body sent its recommendation to Gov. Asa Hutchinson, who announced in August his intention to grant McGehee clemency. The commutation from a death sentence to life in prison without the possibility of parole means McGehee likely will live the rest of his days behind bars but will not come face-to-face with Arkansas’ executioner.

The governor explained that his intent to grant McGehee clemency was “based partly on the recommendation of the Parole Board to commute his sentence.” In reaching his decision, Hutchinson said he “considered many factors including the entire trial transcript, meetings with members of the victim’s family, and the recommendation of the Parole Board.” He added, “The disparity in sentence given to Mr. McGehee compared to the sentences of his co-defendants was a factor in my decision, as well.”

Several other considerations also weighed in McGehee’s favor. His trial judge wrote a letter to the state recommending clemency, a first for this long-standing respected jurist. The former director of the Department of Corrections put in a good word for McGehee. The clergy who provide pastoral counseling to those on death row noted McGehee helped prepare church lessons.

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Further, the murder victim’s sister, Carissa Renee Melbourne, asked the governor to spare the life of her brother’s killer. “I believe Jason has a purpose on the earth,” Melbourne wrote. “He will be such a positive influence on other inmates. Not to mention the positive things he can do, even if it is from a prison cell.”

Ms. Melbourne’s insights bring to mind the case of Stanley “Tookie” Williams. Mr. Williams was executed by the state of California in December 2005 after both clemency and a four-week stay of execution were rejected by Gov. Arnold Schwarzenegger. Williams was convicted of murdering four people. He may have been best known as a co-founder of the Crips street gang in South Central Los Angeles.

During the argument to avoid execution, it was highlighted that Mr. Williams had written Pulitzer Prize-nominated children’s books aimed at keeping kids from joining gangs. His work even earned a nomination for a Nobel Peace Prize. Gov. Schwarzenegger was not moved. The execution proceeded.

As the death penalty debate unfolded, notions of rehabilitation and what a convict might contribute to society were central to the discussion. Certainly Mr. Williams was an extreme example of a talent that could make major impact on the world outside of prison. But participation in a “Scared Straight” program, in which an inmate’s mere sharing of his life story may motivate a behavioral change in a juvenile offender, can turn any prisoner into a positive difference-maker, even behind bars.

In Jason McGehee’s situation, all associated with him attest that he has become an example to emulate. He accepted responsibility for his actions and sought forgiveness. He has been a model inmate, assisting other prisoners when he can.

An op-ed entitled “The Governor’s Call,” published Aug. 30, 2017, in the Arkansas Democrat Gazette, had this to say: “If Jason McGehee doesn’t deserve clemency — with all the details available in his criminal case and all the people who spoke on his behalf, including family members of his victim — then what possible motive could other inmates have to be model prisoners?”

If all hope is extinguished inside the penitentiary, what is the point of striving to better oneself whether facing an extremely long sentence or on death row? Clemency is factored into the criminal justice system to underscore that mitigating circumstances, individualized judgment and, above all, mercy, are significant components of justice too.

McGehee’s attorney, John C. Williams, commended Gov. Hutchinson for accepting what the Parole Board had acknowledged: that Jason’s youth when the crime was committed and his rehabilitation since make him a worthy candidate for clemency. “This is a just outcome given that Jason’s equally culpable co-defendants are serving sentences less than death. Jason’s case is a prime example of why clemency is a necessary part of capital sentencing,” John Williams said in a statement on Aug. 25, 2017.

Indeed, the McGehee case is a perfect example of why clemency should always be available whether the sentence is death, life imprisonment, or many more years longer than necessary to punish wrongdoing and protect society. May this merciful example be the ray of hope followed by other jurisdictions.

About the Author

Professor Rick Stack is a professor in the School of Communication at American University. He and Professor Maggie Stogner produced the 2018 documentary In The Executioner’s Shadow.

Professor Rick Stack
American University
Washington, D.C.
202-885-2856
rstack@american.edu