Federal Court Stays Clemency Hearing of Oklahoma Prisoner with December Execution Date

On December 9, 2024, the 10^th Circuit Court of Appeals issued a temporary stay for Kevin Underwood’s clemency hearing scheduled that same-day with the Oklahoma Pardon and Parole Board, which is lacking its full five-member compliment after two resignations in recent months and one last minute addition on December 6. This decision marks the second time Mr. Underwood’s clemency hearing has been canceled. Meanwhile, Mr. Underwood, age 44, is facing a December 19 execution date, and if it were to be carried out, it would mark the state’s fourth execution this year.

Mr. Underwood’s legal team argued that moving forward with a partial board would violate his due process rights as the state constitution explicitly guarantees a five-member board. Three favorable votes are required for a recommendation of clemency, which then must receive final approval by Governor Kevin Stitt, who has only granted clemency once since taking office in 2019. “With any member missing, that is one less opportunity for Underwood to reach three votes,” explained the motion. Following the postponement of Mr. Underwood’s first clemency hearing on December 4, Governor Kevin Stitt appointed Susan Stava to the Pardon and Parole Board on December 6, filling one of the two missing seats left by Edward Konieczny and Calvin Prince III. The motion explained that Governor Stitt’s appointment of “a new member in less than a week” demonstrates that “ensuring a five-member Board is not an insurmountable task, and requiring a five-member Board places a minimal burden on the Governor.”

“The stay is frustrating but we are proceeding with all legal avenues to allow the hearing to take place this week and to keep the execution on schedule,” said Attorney General Gentner Drummond’s press secretary Leslie Berger. AG Drummond has repeatedly expressed reluctance to changing the scheduled execution date. Following the first cancelation, AG Drummond’s office said the victim’s family has “already waited 18 agonizing years to see justice served. Adding further delay is needless and unconscionable.” The press release went on to characterize Mr. Underwood as “a deeply evil monster whose execution absolutely should be carried out without further setback.”

Reverend Don Heath, Chair of the Oklahoma Coalition to Abolish the Death Penalty, has explained that clemency hearings are typically heard several weeks prior to an execution and doesn’t “see what the harm is in putting the execution off…to allow for the normal time frame.” He added that the repeated delays can be attributed to the “state’s failure to act.”

Mr. Underwood, age 26 at the time of the incident, was convicted of the 2006 murder of 10-year-old Jamie Rose Bolin and sentenced to death in 2008. He confessed to investigators that the murder was part of a cannibalistic fantasy, although no evidence of cannibalism was found. Lawyers for Mr. Underwood are seeking mercy based on his history of severe mental illness, with a diagnosis of schizotypal personality disorder, and autism spectrum disorder.