Clemency Representation
What does the Board of Executive Clemency do?
The Board of Executive Clemency is empowered, as a sole and separate agency of government -- not connected to the Department of Corrections -- to conduct administrative hearings on such matters as: parole, work furlough, home arrest, revocation of releases, commutation of sentence, absolute discharge, reprieves and pardons.
As of January 1, 1994, parole, home arrest and work furlough were eliminated under Arizona's criminal code. Therefore, the only time the Board will conduct such hearings is when they have an "older code" inmate (an inmate sentenced under a criminal code prior to the one which became effective 1/1/94) who is eligible for one of these types of hearings.
Who sits on the Board and how are they appointed?
Presently, there are five members of the Board who are appointed to five-year staggered terms by the Governor. The Chairman of the Board is also appointed by the Governor and is one of the five sitting members of the Board. All members serve at the pleasure of the Governor and can only be removed from their position for "cause."
Current members are:Duane Belcher,
Chairman (term of office expires 1-17-2011)Olivia Meza (term of office expires 1-19-2009)
Leonard Tad Roberts (term of office expires 1-18-2010)
Marian Yim (term of office expires 1-16-2012)
Ellen Stenson (term of office expires 1-16-2012)
What types of hearings before the Board require the services of an attorney?
None. The Board conducts thousands of hearings each year, and the vast majority of prisoners represent themselves. However, most of the hearings are conducted either telephonically or by video-conferencing, which is a disadvantage to the prisoner. He/she can't see the Board members and may not be able to hear the proceedings very well. In the case of an initial commutation of sentence hearing, the prisoner/applicant is not even permitted to attend the hearing at all (either telephonically or in person). It is truly helpful to have an experience advocate on your side.
Our firm works closely with experienced criminal justice consultants who have a very successfull track record in assisting our clients. For ethical and legal reasons, we cannot guarantee the outcome of any hearing. However, we can guarantee that our client's case will be presented to the Board after developing all positive arguments, and by placing the applicant in the best possible light for a favorable outcome. We thoroughly research cases so that we are aware of all information that the Board may ask about during a hearing. In some cases, we begin working on a client's case well in advance of his/her hearing in order to advise the client of certain programming or other criteria which may be well received by the board.
We have represented clients in commutation of sentence applications and parole revocation hearings (old criminal code). Our consultants have experience in pardon, absolute discharge, revocation, commutation, reprieve, parole, home arrest and work furlough hearings.
What is a commutation of sentence?
The Arizona Constitution, as well as applicable Arizona statutes, empower the executive -- the Governor -- to reduce the sentence of a criminal offender who has been sentenced by the judicial branch of government -- the courts. The Governor is not permitted to grant a commutation of sentence unless it has first been recommended for commutation by the Board of Executive Clemency. The Board, on its own, cannot grant reduced sentences; it can only recommend them to the Governor. This is a way of providing for "checks and balances" in government. (In other states outside Arizona, Governors in the past have been involved in corruption for selling commutations to generous campaign donors).
The Board examines a meritorious case and if by a majority vote they feel the sentence was too harsh or should be reduced for other reasons, the recommendation is passed along to the Governor. Once the Governor receives the recommendation, she can grant or deny it. In addition, the Governor has the power to alter the recommendation upward or downward from the one sent to her by the Board.
How does the commutation of sentence process work in Arizona?
First, a prisoner must be eligible to apply for a commutation of sentence. Our firm, for a reasonable fee, can determine through sentencing paperwork and legal research, if a person is actually eligible for a commutation of sentence. Some convictions under the current criminal code automatically exclude a person from ever being eligible to apply for commutation. In other words, the person so sentenced must serve his/her sentence as "flat" time -- day-for-day, calender-year-for-calendar year as imposed by the court. Such sentences would be for first and second degree murder, as an example.
If the client is eligible under the statutes, the Board's own rules state he must have served at least two flat calendar years of the sentence he wishes to have commuted in order to apply. Consecutive sentences are not available for commutation applications because the client can only be two flat calendar years into his current sentence, and not into his consecutive sentence or sentences. Also, according to Board rules, the person cannot be within one year of his earliest release eligibility date when he files an application.
If that criteria is met, our firm then proceeds to obtain a vast array of records from the client, his former attorney, the court, the DOC, and from any other sources. We read all transcripts and study the police reports. We examine the record that the prisoner has developed while in prison, including his work, education, programming, and disciplinary history. If applicable, we also examine his confidential psychological and medical history and records. We provide assistance to the prisoner and his family in developing support letters and provide training and education to the prisoner and his family about the commutation process. We also assist the prisoner in preparing his initial application, as well as a supplemental packet of information, for the Board's consideration.
The Phase I hearing is a "paperwork review" by the Board. The client is not allowed to attend or listen to the hearing on a telephone. His attorney and supporters are permitted to attend the hearing, as are victims, their families and others who participated in prosecuting the case, if interested. It is our job at this hearing to convince the Board to pass the applicant along to the Phase II personal hearing process. We do our best to present a meritorious case so that the Board will be interested enough to grant a Phase II hearing.
The Phase II hearing is conducted about 30 days after Phase I. Here, the prisoner himself, who has been well prepared for the hearing by our firm, presents his case for mercy to the board. His attorney, family and supporters are again permitted to attend, as are the victims and/or their supporters. The hearing is held at one of the prison sites so that the prisoner can be personally present to speak to the board. At the end of the hearing, a vote is taken to determine is the case will be recommended to the Governor.
If the case moves to the Governor's office (at least a simple majority vote of the five-member board is necessary for this to happen), the Board writes a letter of recommendation to the Governor and includes the packet of information that we have submitted on behalf of our client. This packet is very useful for the Governor to refer to when considering what the prisoner has done to address his criminal conduct while in prison.
If the Board voted unanimously to recommend commutation to the Governor, she has 90 days from the date she receives the letter of recommendation from the Board to grant or deny the commutation. If the vote was a majority vote, but not unanimous, by law the Governor may take as long as she wishes to make her decision. Often, however, she still makes a decision within 90 days of receipt of the recommendation.
If denied a commutation, the prisoner must wait a minimum of two years to re-apply. In some cases, due to the passage of recent victim's rights law, the waiting time is extended up to 10 years in some cases.
Are there any special types of commutations?
Yes, there is a commutation referred to as a "603 L" commutation. When a Judge sentences a Defendant in Arizona and feels that the sentence he/she is mandatorialy required to impose (due to a stipulated sentence in a plea agreement or due to mandatory sentencing on its own) is "clearly excessive" for the circumstances of that particular Defendant and that particular crime, the Judge can issue a "603 L" order, which permits the Defendant, within 90 days of sentencing, to apply for a commutation of sentence. In order to qualify for this type of commutation, the Judge must issue the Order at the time of sentencing.
Another type of commutation is an "imminent danger of death" commutation application. If a prisoner can demonstrate via a written doctor's opinion that he/she has six months or less to live, due to a serious medical illness, the prisoner can apply for an expedited commutation hearing to request that the sentence be reduced. Our consultants have successfully worked on such cases which provide a dignified means for a terminally ill prisoner to die outside the prison environment.
CONCLUSION: The commutation of sentence(executive clemency) is designed to be an "act of grace" by the executive of government (Governor). The process operates outside the judicial branch of government; judicial appeals and PCR's can be moving through the courts at the same time as a clemency application is filed. It is a complex process that allows any type of evidence or testimony to be presented -- no Rules of Evidence or other courtroom requirements exist in this forum. Due to new laws in Arizona which protect victims from frequent commutation applications and hearings, it is even more important to have a well-researched, well-prepared presentation to the Board. In some cases, a prisoner will have to wait five or ten years before he/she can re-apply if denied. Very few attorneys are skilled in this area of practice. Our firm not only has experience and interest in this area of the law, but also has the benefit of consultants who have over 20 years of successful experience in such work. Call for fee quotes and an initial consultation.
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