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Before His Scheduled Execution, Chris Young Fights The Texas Parole Board

The death row inmate claims that the parole board likely rejected his clemency petition because he is black. The argument highlights a long-standing criticism of clemency in Texas.

Chris Young, sentenced to death for the 2004 shooting of Hasmukh Patel.

In a final fight before his execution, set for Tuesday evening, Chris Young is targeting Texas’ secretive clemency process.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber. Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.

The filing highlights a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing. Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision.

“Their procedures and everything else are internal; you don’t get to see it,” said Keith Hampton, a defense lawyer who worked on two of the three successful capital clemency petitions in Texas in the last 20 years. “They’ve got lawyers back there … they all go over it, but I have no idea why they reject it, and they don’t have to say why.”

Young’s case is a long shot. A Texas appellate court previously upheld the boards’ ability to explain rejections of clemency solely by vote counts. And the state noted in its response that the appeal doesn’t point to any specific evidence of racial discrimination.

On Tuesday morning, U.S. District Judge Keith Ellison rejected the filing, which is now being appealed in federal appellate court. In his rejection, Ellison expressed frustration with his court’s inability to allow for further examination of potential racial bias.

Without direct evidence of racial discrimination, he said, Young is unlikely to succeed if this case is ultimately heard, which forced him to reject the appeal. He acknowledged the task of showing such discrimination with only days between the execution and the clemency ruling is “well-nigh impossible.”

“Those engaging in race discrimination seldom announce their motivations,” Ellison wrote. “It is no small tragedy that in this case neither Plaintiff nor Defendants will ever know what role, if any, racial bias has played.”

Young was 21 when he entered Hasmukh Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.

In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, has also pleaded for the state to spare his father’s killer

They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money.

Whitaker’s father became his strongest advocate, fighting for the life of his son who killed the rest of his family and nearly killed him as well. Others on death row also wrote to the parole board detailing how helpful Whitaker was to his fellow inmates.

“Whitaker and Young are very much alike,” wrote Young’s attorney, David Dow, in the recent filing. “Both Whitaker and Young were transformed. Both expressed genuine remorse. Both were forces of positive good in prison. And perhaps most significantly of all, the closest surviving relatives of the murders opposed the execution.”

Earlier this year, the parole board unanimously voted for Whitaker, recommending that the governor change his sentence to life in prison and halt his upcoming execution. Minutes before his execution, Abbott granted clemency, and Thomas Whitaker has since been moved off death row, though he will still spend the rest of his life behind bars.

Young and Whitaker’s opposite outcomes, according to Young’s attorneys, is probably because Whitaker is white.

“This vote is most likely explained by a single variable — a variable the Constitution precludes decision-makers from taking into account: race,” Dow wrote, citing the racial disparities that plague all aspects of the criminal justice system.

The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s. Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row. The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders.

“Young provides no direct evidence that any member of the Board acted with racial animus and only infers discrimination based on the disparate treatment in Whitaker’s case,” Hoffman wrote.

Jeff Newberry, who is also representing Young, said Monday that Young’s growth from criminal activity toward helping others in prison is what the board should look at, noting that there were no new disciplinary actions against Young after 2012.

“If you’re looking for the maturation process, you definitely see that with Chris Young,” Newberry said.

A veiled decision

Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions.

Clemency petitions are designed to be a final check of the system immediately before an inmate is put to death. Inmates who have received execution dates can petition for the parole board and the governor to change their death sentence to one of life in prison.

Staff gather all relevant materials from other officials and then, generally, the board members fax in their votes for a tally two business days before the execution. If a majority opt for leniency, the recommendation goes to the governor for approval.

This almost never happens.

Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure. He also rejected board recommendations in at least two other cases. The Whitaker clemency was the first and only board recommendation under Abbott so far.

Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades.

In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”

In 2005, then state Sen. Rodney Ellis, D-Houston, unsuccessfully filed legislation to require that the board hold a live hearing for each death row case. Hampton said lawmakers were convinced it would be too costly to hold clemency hearings before every execution.

The board now is able to hold hearings but isn’t required to do so. A spokesman for the parole board said Tuesday that the last time a hearing was held in a capital clemency case was in 1995.

Hampton also noted the lack of guidelines for board members to use in determining whether to grant clemency. For the 2007 case of Kenneth Foster, who also won a rare board recommendation for clemency, Hampton said he wrote multiple versions of the petition because he didn’t know what the board would weigh on.

He said it’s important to note the appeal of a victim’s immediate family member and an inmate’s growth in prison, which were both focused on in Whitaker and Young’s petition. But the center of his argument for Foster was something else.

“I was told years later that the argument that resonated was a religious argument that I had made,” he said. “Knowing that, I made that front and center [in Whitaker’s case].”

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