Example of Middle Ground's Advocacy: Thanks to the work of Middle Ground, when a prisoner's community supervision or parole is attempted to be revoked by the Board of Clemency, the hearing for such revocation proceedings is now generally held within sixty (60) days of arrest. In the past, we noted that there was sometimes a gap of 90 to 100 days of more before a person would have a revocation hearing. We performed a study of 90-days worth of hearings and presented our findings to the Board. They concurred that the hearings needed to be more in the spirit of Morrisey v. Brewer, which requires a "due process" (timely) hearing, which is generally accepted to be within sixty days of being taken into custody. Periodically, we sit in on revocation hearings of the Board to insure that they are meeting the 60-day requirement for a due process hearing. As a resul of our efforts on this matter, a person will no longer have to sit in a revocation unit of the ADOC for 3 months or more wondering if his parole or community release will be formally revoked. These decisions of the Board affect the families and children, not to mention employers and landlords, of prisoners. We have been advised that the Department of Corrections strongly objected to the pressure put on them by the Board of Clemency to send their paperwork to the Board in time for the Board to schedule revocation hearings within 60 days. We are pleased that the Board Chairman stood up to the DOC Director on this important issue.
EFFECTIVE AUGUST 26, 2013: After many years of our urging to the Chairman of the Board, the Board of Executive Clemency has begun conducting hearings at some prison locations via video-conferencing. Our thanks to former BOEC Chairman Jesse Hernandez for listening. Not all prison institutions are on-line for this service, but it is hoped that all institutions, including private prisons, will eventually have the capability of conducting video-conferencing hearings. There are kinks that need to be worked out, but -- overall -- we are pleased to see this opportunity for inmates to appear face-to-face before the board. During criminal jury trials, jurors are advised that they can judge the credibility of witnesses, in part, by their demeanor, etc. If this method of determining credibility is good enough for trial witnesses and is one reliable way to determine the guilt or innocence of a defendant, then it surely is a useful tool for board members when making release decisions. We applaud the Board's efforts to do so and will encourage expansion of the technology to all prison units. At some units, the Board is conducting face-to-face hearings at the actual unit, but this is only happening at limited locations.
EFFECTIVE JULY 2013: The Board of Executive Clemenc briefly began during July 2013 to hear cases in person in some prison units. For many years, the Board has conducted virtually all its hearings via telephone. The only time they physically went to a prison institution to conduct a hearing was when they were at SMU II for a Reprieve/Commutation hearing for a death penalty case. Now, the Board will begin to schedule some of its hearings as in-person hearings. Be sure to visit their website to see which hearings will be held at the prison site. In order to attend a PUBLIC HEARING OF THE BOARD THAT IS HELD INSIDE A PRISON, YOU: (1) Do not have to be an approved visitor to that inmate or to any other; (2) Can bring papers and a tape recorder (not a cellphone) to the hearing; (3) Do not have to make an appointment or give any notice in advance that you are attending the hearing; (4) Cannot be denied attendance at the hearing for any other reason that a legitimate (and documented) issue of concern that your presence would affect the safe, secure and orderly operation of the prison (4) You should wear conservative and appropriate clothing, but the same restrictions on visitors cannot apply to persons who wish to attend public hearings which happen to be held inside a prison. As always, we discourage parents from bringing children under age 16 or so to any board hearing. Middle Ground applauds the Board for making the decision to conduct more and more hearings in-person. The personal eye contact and ability to access an offender's demeanor are valuable tools for the Board to use to make informed decisions about release to the community. Meanwhile, as noted above, the Board is also setting up video-conferencing for those hearings that they do not conduct in person. Bravo! Note: Since August 2013 (after Jesse Hernandez left the Board), the Board has stopped conducting in-person hearings and appears to be restorting entirely to video-conferencing at some prisons. In the prisons where vdeo-conferencing is not available, the Board is conducting those hearings by telephone.
SCHEDULING OF COMMUTATION HEARINGS: SOME INFORMATION
Here are some policies on commutation that will apply ONLY to the following category of applicants:
1. To prisoners who have previously been recommended for commutation of sentence to the Governor on the same cause (case number) that they are currently applying.
For anyone who applies who has previously been recommended to the Governor on the same case/cause number, the applicant will not have to be heard at Phase I -- their case will automatically move to a personal (telephonic) hearing at Phase II, and the person's application will be scheduled for a hearing as soon as practical within the Board's schedule (the applicant will not have to join the backlog list). Note: These applicants will still have to wait a period of two (2) years from the date of denial to the date that a new/subsequent application can be filed. For all other applicants, there will be an approximate 18 month to two-year delay between the time they file their application (after attaining eligibility to do so) and the time their Phase I hearing is scheduled. Again, the above information applies ONLY to those who have previously been recommended to the Governor (but denied) and who are applying for commutation of the same sentence that was previously denied by the Governor.
Current Board Members (As of September, 2013)
Brian Livingston* (term expires 1/16/17) Acting Chairman/Executive Director
John (Jack) LaSota (term expires 1/20/14)
Ellen Kirshbaum (term expires 1/19/15)
Donna Harris (formerly, Knutson)
* The following information is known about the newest Board members:
Brian Livingston: Executive Director, Arizona Police Assn; is a retired City of Police officer; served in United States Air Force; has worked with victim's groups; graduated from Indiana Law Enforcement Academy in 1981; the Phoenix Regional Police Academy in 1987; has been recipientof Medals of lifesaving; merit, polic shield and Elks Lodge Officer of the Year awards.
Donna Harris (formerly Knutson) is a former Time Computation Supervisor with the Dept. of Corrections. She retired from that position several years ago, but has been brought back as an appointed member of the Board of Executive Clemency.
Board Telephone Number: (602) 542-5656
LAWS YOU SHOULD KNOW ABOUT : See A.R.S. 31-403 (Commutation; restrictions on consideration):
Currently, a prisoner is permitted to apply for commutation of sentence (if otherwise eligible by law under his/her sentencing statute) after serving two flat calendar years of the current sentence, and -- after being denied -- every two years thereafter. After January 1, 2006, this will no longer be the case FOR THOSE WHOSE OFFENSES ARE COMMITTED ON OR AFTER THE EFFECTIVE DATE OF THE NEW STATUTE. Under a new law, which was prompted by complaints of victims who were not pleased about having to re-live their victimization or worry about an inmate's possible release every two years, inmates whose crimes were committed on or after the effective date of the new statute will now be allowed to file their FIRST commutation application after serving two flat calendar years on their current sentence, which includes the time they were given for pre-trial jail credits, but will be restricted as to when they can re-apply.
For example, for those who are convicted of a crime which involved the death of the victim (ARS 13-1104 or 1105); serious physical injury if the person was sentenced pursuant to ARS 13-604; a dangerous crime against children as defined in 13-604.01; or a felony offense in violation of Title 13, Chapter 14 or 35.1, the person will not be allowed to re-apply for commutation of sentence for a period of (at least) five years following the date of the board's denial of the commutation application.
If, in the board's sole discretion, the board determines that the person committed an offense that involved serious physical injury as defined in section 13-105 and that the person wasn't actually sentenced pursuant to 13-604 (due to reduced charges arising from a plea agreement, for example), the board may still order that the person shall not be allowed to file an application for commutation of sentence for a period of five-years from the date of denial of a commutation application.
Additionally, at the time of denial, the board may lengthen the five-year period of time for re-application for a period of up to ten years, AND, for those whose offenses were the most serious, as listed above (death to victim; serious physical injury; dangerous crime against children, etc.) the board may lengthen the period of time to even greater than ten years if: (1) a majority affirmative vote if four or more members consider the action; (2) a unanimous affirmative vote if three members consider the action; (3) a unanimous affirmative vote if two members consider the action and if the chairman concurs after reviewing the information.
All of the above considerations may be waived by the board if: (1) the applicant is in imminent danger of death due to a medical condition, as determined by the board; the person is the subject of a warrant of execution; the sentence for which commutation is sought is the subject of a special order issued by the court pursuant to 13-603 (L).
As noted earlier, the new law will apply only to those who offenses are committed on or after the effective date of the section. Therefore, there will be people in prison who will be allowed to apply for commutation of sentence every two years, as is currently the case, no matter what the crime, and there will eventually be a body of the inmate population who will be restricted to a set number of years, which will vary according to the board's determination, from re-applying for commutation of sentence, according to the new statute.
We hope this information will clear up some of the confusion which is bound to occur.
General Information: The Arizona Board of Executive Clemency is a sole and separate agency with its own inherent powers and duties. It does not have any official connection to the Department of Corrections. Currently, under state law, five members are appointed by the governor to the Board and they serve staggered five-year terms. The chairman is selected by the governor and serves at the pleasure, as do each of the members. A person can only be removed from office for good cause prior to expiration of a term. By law, the five members can come from any background, but two members of the same background are not supposed to be appointed to the board at the same time.
The Board offices are located at: 1645 W. Jefferson, Phoenix, Arizona 85007. Letters of support (or opposition) may be sent to this address. Letters should contain the Inmate Name and DOC #. The telephone is: (602) 542-5656. Upon request, the board will mail an application for Pardon or Absolute Discharge to any person who calls. Ordinarily, an inmate seeking a Commutation of Sentence will obtain an application at the prison from his/her assigned CPO. However, the board will also provide such applications or the application can be downloaded and printed from the Board of Executive Clemency's website.
All hearings of the Board are subject to the Open Meeting Law. No business (except personnel and legal liability issues) can be conducted behind closed doors. All vote-taking by the board on any issue must take place in the "sunshine" (in open public meetings). Persons wishing to sit as observers of board business, including hearings on inmate cases, may do so at any time. This includes attending hearings held in various prisons throughout the state, which are generally limited to hearings on death penalty reprieves and commutations. The DOC is not permitted to exclude any person from a board hearing that is held inside a prison unit, except if that person poses an immediate and serious threat to prison security. Attendance at board hearings, including those pending execution, do not require the person to be on a prisoner's visitation list. A photo ID is required for attendance at prison-unit hearings, but no entrance requirements are needed for hearings held at the board offices in Phoenix. If any person is denied entry to a board hearing held at a prison unit in any location where public hearings are being conducted, they should immediately contact Middle Ground.
Types of Hearings Conducted and Eligibility Requirements: The Board is authorized to conduct several types of hearings. These include: Parole, Home Arrest, Reprieve, Commutation, Parole and/or Community Supervision Revocation. All eligibility for certain hearings is governed by law. A prisoner must qualify under the law for a type of hearing; it is not scheduled just because he/she desires it or applies for it. For example, only those prisoners who were convicted of crimes occurring prior to January 1, 1994 are eligible for parole and home arrest consideration. Parole/ Home arrest is not even available as an option for those who committed crimes on or after January 1, 1994. The board cannot consider a release category unless the prisoner is statutorily eligible for such release.
For questions or additional information, please call Middle Ground (480) 966-8116. Donna Leone Hamm has been qualified in the state courts as an expert witness on Board of Executive Clemency matters. If you wish to retain professional assistance to present a case before the Board of Executive Clemency for commutation of sentence, pardon, parole or revocation, imminent danger of death commutation, etc., please contact Donna for fee information.
INFORMATION ABOUT APPLYING FOR A COMMUTATION FOR FEDERAL PRISONERS:
If you are interested in an application for commutation of sentence (or presidential pardon) for a federal prisoner, the application must be filled out and sent to the Office of The Pardon Attorney in Washington, D.C. Before filling out the application and submitting it, the following documents should be thoroughly read:
1. "Information and Instructions on Commutations and Remissions," which are instructions for filling out each part of the application form.
2. Sections 1.2110 to 1.2113 of the United States Attorney's Manual, "Standards for Consideration of Clemency Petitions." This describes what the Office of the Pardon Attorney does, how United States Attorneys are involved in the process, and the general factors that are considered when a application is reviewed.
3. Sections 1.1 to 1.11 of Title 28 of the Code of Federal Regulations. These rules describe how the application process works, from start to finish.
You can locate all of the above documents and the application forms at: www.usdoj.gov/pardon
You can also request them (if you are in a federal prison) from your Case Manager, or by writing or calling the Office of the Pardon Attorney, 1425 New York Avenue, N.W., Suite 11000, Washington, D.C. 20530. The telephone is: (202) 616-6070.
NOTE: STATE PRISONERS ARE NOT ELIGIBLE FOR COMMUTATIONS OR PARDONS GRANTED BY THE PRESIDENT. THE PRESIDENT OF THE UNITED STATES HAS NO LEGAL AUTHORITY TO CONSIDER OR GRANT CLEMENCY FOR A STATE-SENTENCED PRISONER. LIKEWISE, A STATE GOVERNOR AND A STATE BOARD OF CLEMENCY HAS NO AUTHORITY TO COMMUTE OR PARDON A FEDERALLY-SENTENCED PRISONER.