Lawsuit Alleges Unwritten Policy to Wrongfully Deny Parole to Former Ohio Death-Row Prisoners

Two Ohio civ­il rights orga­ni­za­tions have filed suit against the state’s parole board, alleg­ing that the board has an ille­gal pol­i­cy of auto­mat­i­cal­ly deny­ing parole to any­one who was for­mer­ly sen­tenced to death.

On July 28, 2021, the American Civil Liberties Union of Ohio and the Ohio Justice & Policy Center sued the Ohio Parole Board on behalf of Patricia Wernert and George Clayton (pic­tured), both of whom were sen­tenced to death under a law that was declared uncon­sti­tu­tion­al in 1978. Neither Wernert nor Clayton com­mit­ted the mur­ders for which they were sen­tenced to death. After the U.S. Supreme Court struck down Ohio’s death-sen­tenc­ing statute in Lockett v. Ohio — in part because it did not allow the cap­i­tal sen­tencer to con­sid­er their less­er involve­ment in the offense as a rea­son not to impose the death penal­ty — both of their death sen­tences were reduced to life sen­tences with the pos­si­bil­i­ty of parole after 20 years. 

Despite strong re-entry plans, exem­plary behav­ioral records in prison, and par­tic­i­pa­tion in com­mu­ni­ty ser­vice and reha­bil­i­ta­tion pro­grams, both Wernert, who is now 78, and Clayton, who is now 64, have repeat­ed­ly been denied parole. The suit argues that the parole board’s ​“cur­rent prac­tice is con­sis­tent­ly to deny parole to any indi­vid­ual who was once under a death sen­tence,” rather than afford­ing them the ​“mean­ing­ful con­sid­er­a­tion” required by law.

“Under well-set­tled prin­ci­ples of Ohio law, indi­vid­u­als who are eli­gi­ble for parole must receive mean­ing­ful con­sid­er­a­tion for parole release,” the suit says. Though Wernert and Clayton are the only named plain­tiffs, Ohio Justice & Policy Center exec­u­tive direc­tor David Singleton said the board’s pol­i­cy affects 52 oth­er for­mer death row pris­on­ers sen­tenced before 1978.

According to the suit, the parole board has, since at least 2016, denied parole to any per­son who was pre­vi­ous­ly sen­tenced to death ​“regard­less of any oth­er fac­tors or indi­vid­ual cir­cum­stances, includ­ing but not lim­it­ed to demon­strat­ed reha­bil­i­ta­tive progress, lack of threat to the com­mu­ni­ty, reen­try plan, time served, age, or pros­e­cu­tor rec­om­men­da­tions.” As a result, the board has effec­tive­ly increased the sen­tences imposed on those pris­on­ers: ​“Although Ms. Wernert’s and Mr. Clayton’s sen­tences pro­vide for the pos­si­bil­i­ty of parole, the Board’s pol­i­cy or prac­tice has the prac­ti­cal effect of con­vert­ing their sen­tences into life in prison with­out the pos­si­bil­i­ty of parole.”

The suit asks the Franklin County Court of Common Pleas to declare the pol­i­cy ille­gal, enter a per­ma­nent injunc­tion requir­ing the board to cease imple­men­ta­tion of the pol­i­cy, and con­duct new hear­ings for Wernert and Clayton.