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.
New Information: The Board of Executive Clemency has recently revised and update many of its operating policies. In addition, it has revised its applications for commutation of sentence, pardon and absolute discharge. You should visit their website (just type Arizona Board of Executive Clemency into your search engine and bookmark their website) to review these materials. The commutation application, for example, has gone from 3 pages to 11 pages in length. We are currently in the process of challenging some of the questions on the application, and will keep everyone posted on our progress with this issue.
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.
Current Board Members (As of April 2014)
Brian Livingston* (term expires 1/16/17) Chairman/Executive Director
Ellen Kirshbaum (term expires 1/19/15)
Laura Steele, begins on 3/2/14
Note: There is still one vacancy on the Board which will likely be appointed prior to the end of Gov. Brewer's term in early January 2015
Board Telephone Number: (602) 542-5656
Address: 1645 W. Jefferson Avenue, Phoenix, Arizona 85007 (Southeast corner of 17th Avenue and Jefferson)
Parking: North of the Board's building (across Jefferson Ave.); parking is free for the duration of your hearing
The Board has recently changed a policy that allowed any applicant for commutation of sentence who had previously been recommended to the governor for commutation to submit a subsequent application (two years after denial) and automatically be moved to a Phase II hearing. Now, only those whose applications were denied by the governor who were applying under the provisions of a court order (ARS 13-603 (L) issued by their sentencing judge at time of sentencing) will automatically be moved to Phase II at time of re-application. All others must start at the Phase I hearing. For those who applied under the provisions of 13-603 (L), their re-applications can also include requests to commute consecutive sentences whereas those applying under "regular" commutation status may only apply for commutation on their current sentence.
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, Pardon, 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.