Board of Executive Clemency Info

CLICK HERE FOR MAY 12, 2012 ARTICLE  FROM ARIZONA REPUBLIC ABOUT THE EXECUTIVE CLEMENCY/COMMUTATION PROCESS

Latest Board News:

JUST ADDED JUNE 22, 2012:  AS OF JULY 1, 2012, THE BOARD WILL BEGIN HEARING OVER 100 PHASE I COMMUTATION CASES EACH MONTH, WHICH SHOULD FAIRLY QUICKLY TAKE CARE OF THEIR PREVIOUS EXTREME BACKLOG OF CASES.  AS OF JULY 1ST, THEY WILL HEAR 30 CASES THREE DAYS/MONTH, AND TWO CASES EACH DAY OF THE MONTH.  SO, FOR EXAMPLE, IN JULY THEY WILL HEAR 114 CASES.  THIS MEANS THAT ONCE A PRISONER APPLIES FOR A REGULAR COMMUTATION, HE/SHE WILL NO LONGER HAVE TO WAIT EIGHTEEN MONTHS TO TWO YEARS BEFORE A HEARING IS SCHEDULE.D.  SOON, THE WAITING PERIOD FOR SCHEDULING A HEARING WILL BE BACK TO "NORMAL," WHICH IS ABOUT 3 MONTHS OR SO AFTER AN APPLICATION IS SUBMITTED.  NOTE:  THIS DOES NOT CHANGE THE BOARD'S RULE THAT ONCE A PRISONER IS DENIED AT ANY HEARING, HE MUST WAIT TWO CALENDAR YEARS BEFORE RE-APPLYING.  AND IT DOES NOT CHANGE THE BOARD RULE THAT A PRISONER MUST WAIT UNTIL HE IS AT LEAST TWO CALENDAR YEARS INTO A SENTENCE BEFORE HE CAN APPLY FOR COMMUTATION ON THAT SENTENCE.

  The Board is concerned about the backlog that exists in scheduling commutation hearings.  Hence, they will soon be implementing some new policies which apply ONLY to the following 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.

Posted September 21, 2010:  From November 2009 October 2010, the Board operated on a severely reduced schedule of commutation hearings (for regular Phase I hearings).  During this time frame, the Board only scheduled 25 Phase I commutation hearings per calendar quarter, or 100 per year.   About 1,200 Phase I applications are filed each year that are eligible to be heard at Phase I.   This resulted in a tremendous back-log of applications, so much so that as of September 2010, there was an approximate six-year waiting period for a person filing an application in September 2010 until a hearing could be scheduled for Phase I.  In response to this backlog, the Board has decided to begin scheduling hearings at a rate of 25 cases/month, beginning October 1, 2010.  This accelerated schedule has helped considerably help with the back-log, but it should be noted that there will still be about an 18 month to two year  waiting period from the time that an application is accepted by the Board after having been certified as eligible by the Department of Corrections Time Computation Unit, before a Phase I hearing is scheduled.  Should the Board step-up its hearing schedule even further, we will post that information here.

Current Board Members (as of April 16, 2012)

Jesse Hernandez* (term expires 1/18/16)

Brian Livingston* (term expires 1/16/17)

John (Jack) LaSota (term expires 1/20/14)

Melvin Thomas * (term expires 1/16/17)

Ellen Kirshbaum (term expires 1/19/15)

*  The following information is known about the newest Board members:

Jesse Hernandez:  Works for Congressman David Schweikert as the "Outreach and Government Affairs," Coordinator;was Honorary Chairman of "Patriots for Pearce," Committee -- a political group opposed to the recall of Sen. Russell Pearce;  Chairman of "Mothers Against Gangs;" State Chairman and Founder of Arizona Latino Republican Assn.; former staff member of Dan Quayle Presidential campaign; holds an A.A. degree in Christian Studies from Hillsong International Bible College and a B.A. in Business Management from University of Phoenix.

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.

MelvinThomas:  Holds an A.A. degree from Phoenix College, 1982 and a B.A. in Psychology from Ottawa University, 1986; worked for GEO Group as Warden (private prison); worked as Warden for Arizona State Prison system in Phoenix, Florence and Safford; also worked as Deputy Warden, CSO, CPO, etc.; former President of Arizona Correctional Officers Assn; performs volunteer work for Thunderbird Dialysis Center; is a former member of National Assn. of Blacks in Criminal Justice.

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.

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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.

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.

See: May 22, 2005 "Clemency Voice Goes Unheeded," The Arizona Republic

See:  November 21, 2005 article "Clemency Is No Political Kiss of Death for Governors," below:

Conventional wisdom says governors who grant clemency to murderers suffer political consequences.  But California Gov. Arnold Schwarzenegger, who has the opportunity to spare the life of Stanley "Tookie" Williams, should know that the facts show otherwise, the writer says.

As Gov. Arnold Schwarzenegger ponders the fate of death-row inmate Stanley "Tookie" Williams, he might examine the political fortunes of Sen. George Allen, former governor of Virginia.

In 1990, residents of Danville, Virginia, were shocked at the execution-style murder of a local businessman during what police described as a bungled drug deal.  A jury swiftly convicted William Saunders of the killing.  The betting odds were that Saunders would get the death penalty.  The odds were even greater that he'd be executed.  Virginia ranks close to Texas as an "execute 'em, and in large numbers" death penalty state.

Guilt was not an issue in his case.  Saunders purportedly killed in cold blood.  But later he had a jailhouse epiphany, and had become a strong advocate against drugs and violence.  There were also hints of improprieties in his sentencing.  Authorities praised Saunders as a changed man.

Governors are scared stiff of being tagged as soft on crime and of subverting the people's will.  They routinely duck and run from granting clemency to convicted murderers.  Yet, in Sept. 1997, conservative Republican Gov. George Allen did what many thought unthinkable:  He spared Saunders' life.

Six months after granting clemency to Saunders, Allen's approval rating was far higher than a year earlier.  Allen's clemency grant may not have caused his approval rating to climb, but the act didn't hurt him either.  This defied the conventional wisdom that outraged voters punish governors who grant executive clemency to death row inmates.

Allen's political career didn't miss a beat.  He left the governors post, ran and won a Senate seat.

Allen is no aberration.  In the decade since 1993, 15 governors have granted clemency in capital punishment cases, mostly on humanitarian grounds.  Only one of the governors failed to win re-election.  In nearly every case, the approval ratings of the governors who granted clemency remained steady or climbed.

That's no guarantee that if California Gov. Arnold Schwarzenegger grants clemency to Stanley "Tookie" Williams, scheduled for execution December 13, 2005, there'll be an instant numbers reversal in his plummeting popularity.  But clemency won't be the death knell for Schwarzenegger's re-election  bid.  Nor was it for the governors who granted clemency during the 1950's and 1960's, when the death penalty was commonly used.  In those years,  governors granted clemency to roughly one in four death row inmates.  California Gov. Pat Brown topped that rate.  During the late 1950's and 1960's, with no public outcry, Brown granted clemency to one out of three death row inmates.

That abruptly changed after the Supreme Court reinstated capital punishment in 1976.  Since that time, governors have cringed at being branded as soft on crime and insensitive to victims, and they also believe they will go down in flaming political defeat should they grant a clemency appeal.  They distort, ignore or misread the legal and moral importance of clemency.

Supreme Court Chief Justice William Rehnquist, never one to be mistaken for a bleeding heart on crime and punishment, put clemency in the right frame.  In the 1993 Herrera v. Collins decision, he called clemency the "fail-safe" that governors have at hand to right a legal wrong or prevent a miscarriage of justice.  It's also their legal means to simply do the humane thing when it serves justice.

Rehinquist's apt read of what clemency is supposed to be about is doubly important because the Court in that same case severely narrowed the grounds in which federal courts could intervene and grant habeas corpus to a prisoner who claimed innocence in a capital case.  That further added to the burden held by prisoners who seek legal relief in the courts.  Judges are loath to overturn lower court convictions in death penalty cases even when there are outrageous examples of prosecutorial misconduct, witness tampering or the use of flimsy or non-existent physical evidence to obtain convictions.

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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 describe 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.