| Executing an innocent person is an American nightmare. Executing people who were the victims of miscarriages of justice is, unfortunately, an American reality. |
| While it is impossible to know for sure whether innocent people have been put to death in this country, the Death Penalty Information Center lists the names of twenty-one people who were executed despite having “cases with strong evidence of innocence.” Unless Tennessee Governor Bill Lee intervenes, Tony Carruthers could soon be added to that list. |
| Carruthers is scheduled to be executed on May 21 for the 1994 murders of Marcellos Anderson, Anderson’s friend, Frederick Tucker, and Anderson’s mother. No physical evidence links Carruthers to those crimes, and, as his clemency petition notes, he “was convicted based on the testimony of unreliable liars.” |
| That petition, which was submitted to the governor’s office on April 20, carefully documents the numerous problems that plagued the handling of Carruthers’ case, as well as his own severe mental illness. Governor Bill Lee should act in the name of justice and extend mercy to Tony Carruthers. |
| Lee is no stranger to clemency. In December 2024, he used it for 43 individuals and a year later for another thirty-three people. However, most of them had “completed their sentences and [had] been living freely in their communities for at least five years.” |
| To date, he has not granted clemency in a capital case. In fact, he has not asked the Tennessee Board of Parole to review any clemency application in such cases and to make a recommendation to him. |
| In 2022, Lee halted executions in his state and initiated a review after the state failed to properly test drugs in a lethal injection. Lee has also granted reprieves. |
| He is, however, a longtime supporter of the death penalty. In May 2024, he signed a bill authorizing it in child rape cases, even though the bill would be unconstitutional under Supreme Court precedent. |
| But death penalty proponents have as much of an interest in ensuring that it is applied fairly and that innocent people are not executed as those who oppose it. That’s why the governor should intervene in Carruthers’ case. |
| Clemency is a kind of magic power, possessed by governors and presidents who can grant it for good reason, bad reason, or no reason at all. The New York Timesquotes Richard Burr, former director of the Capital Punishment Project at the NAACP Legal Defense and Educational Fund, who described clemency as “'totally discretionary.’” |
| “Some governors,” he said, “may have personal guidelines, but they’re not made public, so it’s kind of a 'Wizard of Oz’ process. They play God, and you don’t get to see them, or communicate with them, or hear what their concerns are.” |
| Beyond that, as Professor Cathleen Burnett observes, “There is no constitutional right to clemency, and thus there is no appeal from the governor’s decision.” |
| Former Chief Justice William Rehnquist once called the clemency power a “fail-safe” in the legal system that prevents miscarriages of justice. However, a look at the uses of that power in capital cases suggests, Burnett argues, that the fail-safe has “failed.” |
| As Burnett puts it, “executive clemency is so fraught with political considerations that governors, like politicians, prosecutors, and judges, are reluctant to act when correction is necessary.” That helps explain why grants of clemency in individual capital cases (as opposed to mass clemency of the kind done by former President Joe Biden) are “rare.” |
| I have previously noted that “during the 1990s, from one to eight death row inmates had their sentences commuted every year-out if approximately twenty to ninety executions. This represents a radical shift from several decades ago when governors granted clemency in twenty to twenty-five percent of their death penalty cases they reviewed.” |
| Little has changed in the intervening decades, even as support for capital punishment has plummeted. |
| The Death Penalty Information Center reports that among the reasons chief executives give when they do commute capital sentences, “Mitigating factors was the most often cited reason, in nearly a third of all cases, closely followed by concerns about comparative culpability or excessive sentence, possible wrongful conviction, and official misconduct or unfair legal practices.” |
| Almost all |
| those factors are present in Carruthers’ case. |
| On the issue of a possible wrongful conviction, his clemency petition states that “There is still unmatched and untested forensic evidence, that may establish, if examined, that Mr. Carruthers is innocent of the murders. The State did not present any forensic evidence or firsthand eyewitness testimony of Mr. Carruthers’s guilt, or even his purported role in the killings.” |
| On the fairness of the process and official misconduct, the clemency petition notes that “The State secured an indictment from the grand jury that was solely based on false testimony from a confidential informant who then recanted his testimony. The State relied on this same witness’s testimony to obtain Mr. Carruthers’s conviction and death sentence. Since 1996, the State withheld information and lied on the record claiming that this confidential informant was not an informant.” |
| In addition, “The state argued vigorously for the death penalty because the victims were buried alive. That aggravating factor has since been debunked…. The State’s medical examiner, who testified to that fact at trial, later recanted his testimony.” |
| As if that were not enough, Carruthers was forced to represent himself during his trial after a series of lawyers withdrew. Not surprisingly, for a defendant with “schizoaffective disorder, bipolar type, and brain damage, severe symptoms of mental illness, including pervasive delusions and paranoia,” that task proved too much for him. |
| His clemency petition contends that “If Mr. Carruthers is executed on May 21, 2026, he will be the first person in more than a century to be executed after being forced to represent himself at trial.” |
| On comparative culpability, “The State was willing to settle Mr. Carruthers’s case for a life sentence and, in 2006 allowed his co-defendant to plead best-interest for a sentence of 27 years; the co-defendant was in fact released from prison in 2015. That is, while Mr. Carruthers is facing execution, his codefendant, who from the State’s proof was at least equally culpable, has been a free man for more than a decade.” |
| His petition makes a compelling, justice-based case that Carruthers does not deserve to be put to death. It also provides a basis for Governor Lee to extend grace to him. As it notes, Carruthers “did not choose to have a serious mental illness.” |
| Bryan Stevenson has famously said, “We are all broken…. We all share the condition of brokenness even if our brokenness is not equivalent.… But our shared brokenness connected us…and our brokenness is also the source of our common humanity.” |
| “We have a choice,” Stevenson adds, “We can embrace our humanness, which means embracing our broken natures and the compassion that remains our best hope for healing. Or we can deny our brokenness, forswear compassion, and, as a result, deny our own humanity.” |
| That is the choice Governor Lee faces. He should choose compassion and healing and spare Tony Carruthers’ life. |
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