On January 17, 2017, President Barack Obama (pic­tured) com­mut­ed the death sen­tences of Abelardo Arboleda Ortiz, a fed­er­al death row pris­on­er, and Dwight Loving, a mil­i­tary death row pris­on­er. The two men were among 209 com­mu­ta­tions and 64 par­dons announced by the White House on the 17th. Ortiz’s lawyers sought clemen­cy from the President on the grounds that Ortiz was intel­lec­tu­al­ly dis­abled, his right to con­sular noti­fi­ca­tion under the Vienna Convention had been vio­lat­ed, he did not him­self com­mit the mur­der and was not in the room when it occurred, and he had been denied effec­tive assis­tance of coun­sel at tri­al. Loving’s attor­neys argued for clemen­cy on the basis of inef­fec­tive assis­tance of coun­sel, racial and gen­der bias in the selec­tion of mem­bers of his court-mar­tial, and Supreme Court rul­ings that called into ques­tion the con­sti­tu­tion­al­i­ty of the process by which the mil­i­tary impos­es the death penal­ty. In Loving’s clemen­cy peti­tion, his lawyers state, ​“Issues of com­mand influ­ence, racial dis­crim­i­na­tion, and improp­er pan­el vot­ing pro­ce­dures – which were ignored by the courts based on tech­ni­cal legal evi­den­tiary rules – will for­ev­er over­shad­ow Loving’s death sen­tence. Executing him [will] not pro­mote jus­tice or ensure good order and dis­ci­pline any more than a sen­tence of life impris­on­ment.” Ortiz’s lawyers said they were ​“incred­i­bly grate­ful” to President Obama for the com­mu­ta­tion. In a state­ment, Amy Gershenfeld Donnella said, ​“Mr. Arboleda Ortiz’s case high­lights sev­er­al of the glar­ing prob­lems that plague the fed­er­al sys­tem no less than state sys­tems: dread­ful lawyer­ing by defense coun­sel; dis­pro­por­tion­ate sen­tenc­ing even among co-defen­dants; sig­nif­i­cant racial, eco­nom­ic and geo­graph­ic dis­par­i­ties in the choice of those who will be tried cap­i­tal­ly; and pro­ce­dur­al con­straints that make it vir­tu­al­ly impos­si­ble to cor­rect a con­vic­tion or sen­tence imposed, even in vio­la­tion of the Constitution, when new evi­dence comes to light.” His case, she said, ​“epit­o­mizes the bro­ken fed­er­al death penal­ty sys­tem.” Although fed­er­al law and the U.S. Constitution both pro­hib­it using the death penal­ty against per­sons who are intel­lec­tu­al­ly dis­abled, Ortiz’s tri­al lawyer nev­er inves­ti­gat­ed his intel­lec­tu­al dis­abil­i­ty, Donnella said. As a result, the jurors made their deci­sion on life or death ​“in a com­plete vac­cu­um” and ​“an intel­lec­tu­al­ly dis­abled per­son of col­or with an IQ of 54 who was nev­er able to learn to read, write, or do sim­ple arith­metic, and could not even tie his shoes until he was ten years old” was sen­tenced to die. Both Ortiz and Loving will now serve sen­tences of life in prison with­out the pos­si­bil­i­ty of parole.

(J. Vitkovskaya, ​“Along with Chelsea Manning, here are the oth­er peo­ple who received par­dons and com­mu­ta­tions from Obama,” The Washington Post, January 17, 2017.) Read the state­ment by Abelardo Arboleda Ortiz’s attor­ney. Read Dwight Loving’s clemen­cy peti­tion and let­ter to the Judge Advocate General of the Army. See Clemency, Foreign Nationals, and U.S. Military.

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