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.