Commutation Denied Because Proceedings Not Arbitrary

The following summary is of a federal civil appeal of a 28 U.S.C. § 1983 civil rights action seeking a preliminary injunction, arguing there were various due process violations in his commutation request.  

The State of Idaho denied commutation, but because Idaho is within the Ninth Circuit like California, we present this summary because the law applicable in this case applies to California, too.

In 1981, while serving two life sentences for murders committed in California and Oregon, Thomas Eugene Creech killed fellow inmate David Dale Jensen, who was disabled.  Mr. Creech struck Mr. Jensen repeatedly with a battery-filled sock after Mr. Jensen allegedly came after Mr. Creech with a toothbrush with a razor blade fastened to it.  For killing Mr. Jensen, Mr. Creech was sentenced to death. 

 

In 2023, the State of Idaho granted Mr. Creech a commutation hearing before the Commission of Pardons and Parole, which was held in early 2024.  The Commission ultimately denied the petition for commutation to life without parole and Mr. Creech’s execution was scheduled for February 28, 2024.  

The Commissioners who voted against commutation noted “the sheer number of victims that Mr. Creech has created over his lifetime” and that “Mr. Creech was not interested in telling the truth about his additional crimes.”  The prosecutor alleged at sentencing for Mr. Jensen’s murder that Mr. Creech had killed eleven people.  Creech agreed that he had killed at least nine people, but he claimed that he did not kill one of the people the prosecutor alleged he killed.  It was further noted that Mr. Creech had participated in killing at least 26 people, often in association with another person.  He had killed by shooting, stabbing, beating and strangling to death.  His crimes spanned seven states. 

Mr. Creech then filed a 1983 action, alleging various due process violations during the commutation proceedings and seeking a preliminary injunction of his execution.  He claimed, for example, that the Commission was told that the sock used to beat Mr. Jensen had Mr. Creech’s name on it, implying it belonged to him, when in fact this was never established at trial.  This issue, Mr. Creech claimed, constituted fabricated evidence and violated his due process rights.

The district court denied his petition, finding the name on the sock issue was harmless beyond a reasonable doubt.  Mr. Creech then appealed to the United States Court of Appeal for the Ninth Circuit in Boise.

The Ninth Circuit affirmed the district court.  The Ninth Circuit explained that “[t]he appropriate legal standard to analyze a preliminary injunction motion requires the district court to determine whether a movant has established that (1) he is likely to succeed on the merits of his claim; (2) he is likely to suffer irreparable harm absent the preliminary injunction; (3) the balance of equities tips in his favor; and (4) a preliminary injunction is in the public interest.”  Baird v. Bonta (9th Cir. 2023) 81 F. 4th 1036, 1040; Winter v. Nat. Res. Def. Council Inc. (2008) 555 U.S. 7, 20.

Here, the Ninth Circuit explained, its focus was on “the likelihood of success” element, which is the most important factor.  See Edge v. City of Everett (9th Cir. 2019) 929 F. 3d 657, 663.

The Ninth Circuit then explained that if a state provides a commutation proceeding, the Due Process clause of the Fourteenth Amendment requires only “minimal procedural safeguards . . . “ Ohio Adult Parole Auth. v. Woodard (1998) 523 U.S. 272, 289.

The Ninth Circuit then commented that “the precise contours of our review of a commutation proceeding are unclear.  At least, a procedural due process violation exists ‘if the clemency proceeding’s outcome is wholly arbitrary . . .’” Schad v. Brewer (9th Cir. 2013) 732 F. 3d 946, 947.  “Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Woodard, supra, at 289; see also Anderson v. Davis (9th Cir. 2002) 279 F. 3d 674, 676 (stating other examples of arbitrary behavior or procedural due process violations may be when bribery, personal or political animosity or deliberate fabrication of false evidence”).

The Ninth Circuit then explained that even giving Mr. Creech the benefit of the doubt that the sock used in the murder at issue was not his, this error in the proceeding did not amount to causing an arbitrary result in light of Mr. Creech’s criminal history.