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No Mercy

If the death penalty is supposed to be a deterrent, executing a rehabilitated man will serve as a deterrent to redemption.
 
 
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On August 26, Texas is scheduled to execute James Allridge III for the 1985 murder of 21-year-old Brian Clendennen, who died from two gunshots fired in the course of the botched robbery of a Fort Worth-area convenience store. At his trial, Tarrant Co. prosecutors argued that Allridge, then 21, killed Clendennen on Feb. 4, 1985, while on a "crime spree" with his 23-year-old brother, Ronald. (Ronald, implicated with James in a string of area robberies, had been sentenced to death in 1986 for the murder of Carla McMillian, killed during the robbery of a Whataburger a month after Clendennen's death. He was executed in 1995.)

In 1987, after finding James Allridge guilty of Clendennen's murder, his trial jurors were faced with choosing a punishment: life in prison with a possibility of parole (after 20 years), or a death sentence. Allridge had no prior criminal record, but the jurors were not instructed to consider his past, or his troubled relationship with his brother Ronald. Instead, their determination would be based solely on their answers to the two "special questions" asked of Texas' capital-case jurors prior to 1990. First, they were asked, was the crime deliberate? And, second, did they believe "beyond a reasonable doubt" that "there is a probability" that Allridge would commit additional "acts of violence" in the future, making him a "continuing threat" to society?

If the jurors had answered "no" to either question, Allridge would have received a life sentence; but following deliberation, the jurors answered "yes" to both, and James Allridge was sentenced to die. (In 1993, Allridge also pled guilty to four counts of aggravated robbery stemming from the 1985 crimes. He received a life sentence.)

After reading the verdict, District Judge Joe Drago III asked Allridge if there was anything he wanted to say. Allridge turned to face the Clendennen family and apologized for killing their son. "The only thing on my mind at the time wasn't what the jury had decided what they were going to do to me or what my future might hold, none of that," Allridge recently recalled. "It was that I wanted to say I was sorry to Brian's mom; that's what I wanted to do."

A Question of Clemency

Seventeen years later, James Allridge and his supporters – including four of the original jurors, his family, attorneys, two former death row prison guards, a retired prison system administrator, a Fort Worth city councilman, one of Allridge's former employers, and a handful of others – have joined forces to ask that the state Board of Pardons and Paroles and Gov. Rick Perry commute Allridge's death sentence to life behind bars.

Allridge's bid for a life sentence is not based on a claim of innocence or on a lack of due process. Instead, his plea for commutation is based on his apparent rehabilitation while in prison and his quest for redemption – two factors that Allridge's supporters, criminal-justice reformers, and policymakers say should play a key role in Texas' clemency decisions, especially since the state's capital statute emphasizes, as it did in Allridge's sentence to death row, the "future dangerousness" of the accused.

"[W]e ask that you consider whether the interests of the criminal justice system – including deterrence and rehabilitation – are best served by executing a rehabilitated person who, while carrying responsibility and remorse for his actions in his heart, is trying to give something back by furthering the safety and stability of the prison environment and struggling to redeem himself," attorneys Jim Marcus and Lisa Fine wrote in Allridge's petition to the BPP. "Our request for mercy is premised on the belief that the open-ended ability to commute a death sentence in Texas ... should be exercised in the extraordinary rare instance that a compelling record demonstrates true rehabilitation."

Allridge's supporters say that in the 17 years he has been in prison he has become a model inmate – that he accepts responsibility for Clendennen's murder and strives for redemption, in behavior that he models for other inmates. He is a calming force on the row, and former guards say he has made the unit a safer place. He has honed his writing skills, teaches other inmates to read and write, and has taught himself to paint and draw. Allridge's art – primarily brightly colored, highly professional renderings of flowers in full bloom against a deep black background – has been featured in art shows across the country and in Europe and have attracted considerable attention – both positive and negative. To his supporters, Allridge's art is a symbol of his rehabilitation – a tangible and graphic example of the man he has become. "It's quite natural that when people get out of a certain environment, they change," said Richard Deiter, executive director of the Washington, D.C.-based Death Penalty Information Center. "It is particularly important in Texas that a person show that [change], because the death penalty statute is focused on 'future dangerousness.' That is the key. When that [prediction] turns out to be wrong, it seems like good grounds for clemency."

Although the question of whether a defendant poses a continuing threat to society – both outside and inside prison – is integral to deciding a death sentence in Texas, rehabilitation has not played a correspondingly significant role in deciding clemency. Indeed, since the reinstatement of the death penalty, Texas has never once granted a commutation based on rehabilitation or in the interest of redemption.

To the opponents of Allridge's bid for mercy – including the Tarrant Co. District Attorney's Office and, reportedly, the Clendennen family – his personal transformation in prison carries little weight, and they consider his art, and the recognition it has earned him, an unending stream of salt in the wounds of their loss. "My ... son, Brian, was also an artist and a writer who got up and preached in church," Doris Clendennen told the Associated Press. "But he never got to fulfill his dreams."

Allridge and his supporters do not claim that his rehabilitation somehow erases the tragedy visited upon the Clendennen family. Rather, their argument is that in order to maintain the integrity of the state's death penalty system, and to ensure that the ultimate punishment is reserved for the most egregious crimes and irredeemable offenders, the system must also demonstrate moderation and mercy. In the case of James Allridge, supporters argue, the remorse is genuine, the rehabilitation exemplary – and a formal acknowledgement of his quest for true redemption will only serve to strengthen the system.

In short, with Allridge set for execution on Aug. 26, there is one question left to answer: Is there any mercy for the condemned? "If the death penalty is a deterrent," proposes Allridge's attorney Lisa Fine, "executing James Allridge will serve as a deterrent to striving for redemption."

A Merciless Excess

Whatever the current state of his character, the odds of Allridge receiving a commutation are extremely low. Since 1999, the Board of Pardons and Paroles has received over 120 requests for clemency in capital cases. It has denied all but three, each brought to them this year. Moreover, a nod from the board means nothing unless the governor chooses to accept the recommendation: Of the three clemency recommendations he's received, Perry has acted on only one. That one, for killer Robert Smith, was based on a claim of mental retardation and was essentially mandatory, given that the U.S. Supreme Court ruled in 2002 that executing the mentally retarded is unconstitutional.

In 2001, Perry had vetoed state legislation that would have barred the execution of the mentally retarded. And in May, Perry demonstrated a seemingly callous indifference to the idea of mercy by rejecting the board's 5-1 vote to grant clemency to paranoid schizophrenic Kelsey Patterson – earning worldwide attention and scorn.

The Supreme Court has also opined that some provision of clemency is necessary to render a capital statute constitutional, and the board has the power to grant clemency on any grounds. "That's the thing, it's an open-ended remedy," said Marcus, executive director of the Texas Defender Service. "There is no restriction on the power of the board. We don't have to show any particular circumstances. They can grant clemency or a commutation for any basis. Rehabilitation is a classic reason to commute a sentence." Despite that wide latitude, clemency in Texas has been more illusion than reality, raising eyebrows from the federal judiciary. In December 1998, U.S. District Judge Sam Sparks upheld the state's procedures but cautioned that the system is "extremely poor and certainly minimal." "The goal," he said, "is more to protect the secrecy and autonomy of the system rather than carrying out an efficient, legally sound system."

Indeed, in the modern era of the death penalty in Texas, rehabilitation has never formed the basis of a board commutation recommendation – even though inmates have occasionally sought mercy on those grounds.

Rehabilitation was a central basis of Karla Faye Tucker's 1998 bid for clemency. Tucker and co-defendant Daniel Ryan Garrett were convicted and sentenced to die for the gruesome 1983 pickaxe murders of Jerry Dean and Deborah Thornton. While in prison Tucker underwent a religious conversion that her supporters – among them Pope John Paul II, conservative preachers Pat Robertson and Jerry Falwell, and Thornton's brother Ronald Carlson – argued was the cornerstone of her successful rehabilitation. The board unanimously rejected Tucker's plea.

Even without a board recommendation, the governor is empowered to grant one 30-day reprieve; but Tucker's rehabilitation and redemption failed to sway the self-proclaimed born-again and reformed Gov. George W. Bush. "Many of Tucker's supporters are basing their request for clemency upon her gender and her religious conversion," Alberto Gonzales, Bush's general counsel, wrote in a memo to Bush the day before Tucker's execution. "Neither of these factors have been given weight in previous decisions made by you in death penalty cases."

Tucker had become a poster child for mercy, and her execution, which embittered supporters, reformers, and policymakers, transformed her into an international example of the absence of mercy in Texas' death system. "It ought to concern all of Texas. It should concern all of the United States. It should concern the world because there is no mercy in Texas," Tucker's attorney David Botsford told The Dallas Morning News. "Clemency is a farce."

By contrast, evidence of rehabilitation has resulted in clemency elsewhere. In 1997, Republican Virginia Gov. George Allen – whose state has the nation's second-most active death chamber – granted a sentence commutation to convicted murderer William Saunders, because Saunders had "established a model record on death row." Most recently, in January, the Georgia parole board granted a commutation to Willie James Hall, based in part on his record of "excellent behavior" while in prison, reported The Atlanta Journal-Constitution.

Similar demonstrations of behavior modification have not impressed Texas' decision-makers. "Texas is one of very few states that requires a finding of future dangerousness to impose the death penalty," said UT law professor Jordan Steiker. While it might appear that standard is, in theory, generous to defendants, Steiker adds that in practice it has transformed the punishment phase of a capital trial to allow the state to introduce every "bad thing you've ever done" as a predictor of future behavior. Those predictions are often wrong - but because of the "malleable" nature of the question, Steiker says, "You would think that it would give some political coverage to the executive branch" to grant clemency based on rehabilitation. "It is ironic because they haven't acknowledged redemption and rehabilitation," he said. "It would seem that the [board and governor] would take an interest in not executing when execution is not necessary. That is almost the textbook definition of excessiveness."

The Man From Murderabilia

Steiker's argument does not impress longtime Tarrant Co. District Attorney Tim Curry, whose office prosecuted Ronald Allridge in 1986 and James Allridge in 1987. In more than 30 years as DA, Curry has never "filed anything supporting clemency, and we won't be in this case," said Curry spokesman David Montague. "I don't think anyone's ever presented anything that we feel justifies it."

Andy Kahan, who has directed the Houston mayor's crime-victim's assistance office for 12 years, shares Montague's position. In contrast to Allridge's supporters, who consider his art a reflection of his focused rehabilitation, Kahan judges Allridge's artistic endeavors as nothing more than a means to capitalize on his death row status in order to make a buck. "He is absolutely nothing except that he has murdered somebody in cold blood," Kahan said.

For a decade Allridge's art has attracted free-world buyers. Allridge has a web site that features some of his work, certain of his drawings sell for over $300, and many are featured on inmate-designed greeting cards created by the advocacy group Citizens United for the Rehabilitation of Errants, which sell for $10 a box. According to Allridge's web site, profits from the sale of his art are used to pay his legal fees.

This does not matter to Kahan, who for five years has gained notoriety for his quest to keep condemned inmates from "profiting" from their crimes. Kahan was instrumental in the 2001 passage of Texas' so-called "murderabilia" law – a term Kahan says he coined and that, God willing, with a little help from his friends (whom he prods to use the term more often in casual conversation), he hopes will some day become a dictionary entry. The law is designed to prohibit convicted criminals from profiting from the sale of items marketed based on their inmate status, and it allows the state to confiscate any profits to use for victim compensation.

The law has never been tested. Kahan said he has been tracking Allridge's enterprise for years but only recently decided that his should serve as a test case. "I've always been of the opinion that it is nice to pass laws, but not if you can't or don't enforce them," he said. Kahan has filed a formal complaint with the Polk Co. DA's office (home to the Texas Department of Criminal Justice's Livingston Unit, which houses death row inmates), and with TDCJ, asking them to shut down Allridge's Web site. (TDCJ's Office of Inspector General is investigating Kahan's complaint, and the Polk DA has appointed a special prosecutor to look into the matter.) What prompted Kahan's current indignation? "Two words," he said. "Susan Sarandon."

Sarandon has been corresponding with Allridge for nearly eight years, and on July 14 made a trip to Livingston to visit him and say goodbye. Why has Kahan waited to act until now? "The public wasn't familiar with James Allridge; he was not a household name," Kahan said, until Sarandon came to town. Kahan had been "looking for a reason" to pursue a legal case against Allridge, which Sarandon gave him. "Because of her visit, that gave him publicity that he didn't have before," he said. "That has bumped him up to a celebrity status ... and that is why I requested an investigation." In sum, Kahan insists, the only reason anyone is interested in Allridge's art is because of his "status on death row." "The [Clendennen] family is obviously outraged that he is using his death row status," he said. "From the [viewpoint] of the victims' families, let me tell you, there is nothing more nauseating."

Kahan is not persuaded by the claim that Allridge's art is part of his effort at rehabilitation – or by the idea that Allridge could use his art to compensate the Clendennens if his sentence were commuted. "More power to James Allridge for turning his life around," Kahan said. "[But] you're not put on death row to rehabilitate."

Justice Tempered

Other victim advocates reject Kahan's position and consider rehabilitation and mercy extremely important. "They should be rehabilitated - it's all the hope we have," says Linda White, spokeswoman for the Texas branch of the advocacy group Murder Victims' Families for Reconciliation. White's daughter was raped and murdered in 1986 by two 15-year-old boys. Although certified to stand trial as adults, and therefore eligible for a death sentence, the two pled guilty to the crime and are currently serving 54- and 55-year prison sentences. At the time, White said, people would make comments to her about how "it was a shame we couldn't fry them." But White never agreed, she says, and she does not believe that a jury's prediction of "future dangerousness" should forever nullify a chance for mercy. "If you see that a person has made significant gains, what sense does it make to continue the process without commutations or clemency?" She points to Tucker's case as an example. "[T]here was no good reason to execute that woman, no good reason," she said. "And she could've been put into the general [prison] population and could've been a wonderful help to other people, helped to turn other people around."

MVFR member Jeanette Popp agrees. Her daughter was the victim of Austin's notorious 1986 Pizza Hut murder, for which two innocent men, Christopher Ochoa and Richard Danziger, served more than a decade in prison before being exonerated. The two were freed after the actual killer, Achim Josef Marino, confessed to the crime; Popp implored Travis Co. prosecutors not to seek the death penalty for Marino.

"There is no such thing in Texas as rehabilitation, or clemency due to rehabilitation. They have no idea how to temper justice with mercy," she said. But Allridge, like Tucker before him, is a remarkable example of an inmate who has rehabilitated himself "in spite of the system," she said. "The case of Karla Faye Tucker breaks my heart every time I think about it. And James Allridge is probably going to be another waste – another horrible waste."

Popp agrees that convicted killers should not be allowed to profit from their crimes but doesn't see any sense in trying to extract compensation from a death row inmate. "Think about it – if we gave [Allridge] clemency he could continue his artwork and compensate his victim's family," she said. "Let him do what he can to make up for what he did. Execution is an easy way out, and no one gets anything out of it. The family isn't going to have their rage reduced. ... It isn't going to go with [Allridge], that is for sure."

The Quality of Mercy

Time is running out for James Allridge. His supporters know that, realistically, there is only a slim chance that he'll be granted a commutation – but that has not erased their hope, or Allridge's. "I do have hope despite my situation," Allridge said in an interview posted on his web site. "I think that you should never take away someone's hope because it destroys the soul and can create a monster that no one is going to want to deal with. I think that everyone, no matter what they have done, should be given the opportunity to become rehabilitated."

Interestingly, it appears that Charles Aycock, a member of the six-member Board of Pardons and Paroles, might share that opinion. In May, Aycock, a longtime county attorney in the Panhandle and former president of the State Bar Association, was the only board member to vote in favor of granting a commutation to David Ray Harris – whose false testimony in the late Seventies landed Randall Dale Adams on death row for the murder of a Dallas police officer. (Errol Morris told Adams' story in his 1988 documentary The Thin Blue Line ; Adams was released from prison in 1989.)

In June, Harris was facing execution for a different murder, committed in 1985 during a bungled burglary attempt. In his commutation petition, Harris recounted his difficult childhood and the events leading up to the murder. As reported by Rick Casey in the Houston Chronicle, Harris recounted his religious conversion and explained that while in jail he'd earned an associate's degree in theology from Calvary Bible Institute. Harris was asking the board for a commutation based on rehabilitation.

Aycock declined to comment on his vote in favor of Harris' bid, but Casey reported that Harris' petition included a quote from Aycock that had appeared in a previous Chronicle story. "I respectfully submit that clemency decisions are not about whether the person facing death has had his case reviewed by one court or ten courts," Harris wrote. "Clemency is not about a rigid legal standard – or even a legal standard capable of articulation. Rather, it is about mercy."

Jordan Smith is a staff writer at the Austin Chronicle.