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its decision immediately after hearing each case. The session lasts for 1 day only. Sometimes the board disposes of over fifty cases in a 5-hour session.

The boards considers cases of parole violation at the same meeting.

Hearing: Disposition.-The board acts on majority vote, and it may grant parole, deny parole or pass the case.32 The board is required not to grant a parole unless it affirmatively appears that there is a reasonable probability that the prisoner will remain at liberty without violating the law.33

Conditions for parole. The board specifies certain conditions in every parole 34 and may add others as it chooses.

Upon release each prisoner is given his own belongings and a suit, $5, and an "untransferable" railroad ticket for 300 miles. For 3 months previous to release he may grow hair, beard and mustache.35

Supervision.-A prisoner released on parole is in the legal custody and under the control of the parole clerk and the superintendent of the prison until the expiration of the maximum sentence, but no provision is made for parole agents or for systematic parole supervision."

36

"If the case is passed it may be taken up before 6 months elapse as is necessary in case of a denial of parole.

2 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5322. Rules of the Board, No. 7. This relates to the sufficiency of showing and is not jurisdictional. State v. Super. Ct., 30 Ariz. 332, 246 Pac. 1033 (1926).

The parole proclamation contains this language:

"This parole is granted upon the following terms and conditions which shall be in effect until the maximum sentence of said prisoner shall have expired: "First-He shall abstain from the use of intoxicants, and not frequent places where intoxicants are manufactured, sold, disposed of or given away.

"Second-He shall not engage in any form of gambling or frequent places where gambling is done, including pool halls and other such places.

"Third-He shall abstain from vicious, lewd, or unworthy companions and associates, keeping his conduct at all times consistent with that of the best and most worthy citizen of the community.

"Fourth-He shall report to the parole clerk at Florence, Ariz., in writing on the 1st day of each month:

"(a) Stating his residence, and with whom residing (indicating whether alone, with parents, wife and family, relatives, etc.);

"(b) By whom employed, and address of employer; "(c) Give an account of earnings for previous month." Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5329. Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5322. No. 8.

Rules of the Board,

37 The chairman of the board of pardons and paroles gives about half of his time to supervisory work and he is kept informed by some peace officers throughout the State. He is assisted to some extent by adult probation officers.

38

Monthly reports from the parolees constitute the principal means of contact between parolees and the board, but the reports are not made systematically. Not all persons are required to report, and few are required to report after 1 year. When reports are not required, nothing more is heard from the parolee unless information is received that he has committed a crime. Reports are sent to the State supervisor of parolees.40

The parole clerk is required to assist parolees and discharged prisoners in securing employment, to inform the superintendent of the prison as to the conduct of parolees, and to make a monthly report thereof as to each prisoner.*1

Procedure on violation of parole.-When a parolee is arrested for a new crime, and frequently when a parolee is involved in a disturbance, the chairman of the board is notified. He makes an investigation, and if he feels such action justifiable, he issues a warrant for the return of the parolee to the State prison. The warrant may be issued by the parole clerk, the prison superintendent, or any member of the board for the retaking of a prisoner prior to the expiration of his maximum sentence.42 The warrant may be served by any prison officer or other officer authorized to serve criminal process.13

When a parolee is returned for violation, he is given a hearing at the next meeting of the board. At the hearing

44

83 Each parolee is given forms for reporting his name and address, the name of his employer, the length of employment, the amount of his earnings, with whom he has resided, whether he has been arrested or violated his parole and, if so, the reasons for such violation. A false statement in a report constitutes a violation, according to the printed parole form.

A parolee is not required to report on these forms, however. He may send a letter giving his name, address, and occupation. Few failures to report are considered violations.

89 Over 10 percent of the prisoners are native Mexicans who are paroled to the United States Immigration Service for deportation. No reports are required from them.

In cases where parolees are allowed to leave the United States, reports are expected, but since no action is taken upon failure to report, few of these parolees report regularly.

40 The reports are filed by an inmate assistant, and the chairman of the board is informed of cases of failure to report.

"Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5327. No regular procedure is followed in this respect, although prison officials frequently assist prisoners in finding employment when released.

49 Id. § 5323; Rules of the Board, No. 10.

43 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5324.

44 Id. § 5325; Rules of the Board, No. 11.

the chairman presents the information which he has concerning the case, and the parolee is given an opportunity to explain his violation. The board then takes positive action, usually revoking the parole.45

Parole may be revoked on evidence of a violation even if the parolee has not been returned to custody.1o

Recommitment: Effect on original sentence.-A parole violator when recommitted is required to serve the balance of his maximum sentence remaining at the time parole was granted," with or without benefit of credits earned, as the board determines.48

Recommitment: Effect and eligibility for further parole. Apparently a recommitted parole violator is eligible for parole at any time, and there is no limit on the number of times a prisoner may be reparoled.

50

Final discharge.-A prisoner on parole may apply, before expiration of his maximum term, for an absolute discharge, which may be granted if there appears to the board to be a reasonable probability that the action would be compatible with the welfare of society. Such a discharge has been said to be less than a pardon,51 but since no discharge has been granted by the board the constitutional question of conflict with the pardoning power of the Governor has not arisen.52

If no action of the board intervenes the parole of a prisoner terminates with the expiration of the maximum sentence. This has been interpreted as allowing deductions for statutory good time even while on parole.

53

This especially is true if the parolee has committed another crime or made himself obnoxious to his community. If the violation is not flagrant or if he is needed to support his dependents he may be reinstated on parole. 4 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5325. Apparently the warrant must have been issued, however, before such action can be taken by the board.

Id. § 5325. But see Orme v. Rogers, 32 Ariz. 502, 260 Pac. 190 (1927), to the effect that parole is looked upon as service of the sentence outside prison walls.

4 Such credits are subject to forfeiture, the board being the sole judge as to such action. Id. §§ 5318, 5319.

49 This is evident from the language of the statute:

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to Id. § 4326; Rules of the Board, No. 9.

* Orme v. Rogers, 32 Ariz. 502, 260 Pac. 190 (1927).

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unless sooner

52 The opinion of the members is that such a discharge would not be upheld

if tested in the courts.

La Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5322.

EXECUTIVE CLEMENCY

Power in Governor and board.-The Constitution of Arizona declares that the Governor shall have the power to grant reprieves, commutations, and pardons after convictions, for all offenses except in cases of treason and impeachment, upon such conditions and with such restrictions and limitations as may be provided by law. Under this provision until 1915, the pardoning power seems to have been exercised solely by the Governor.

It is evident that there was dissatisfaction with the freedom with which the Governor issued pardons in Arizona from 1910 to 1915. The legislature passed an act placing some limitations on the right of the Governor to pardon by providing for a board which was to recommend the granting of pardons. Under this act the Governor could not grant a pardon until it was recommended by the board. The law was vetoed by the Governor but in 1915 similar legislation was enacted by means of an initiative measure passed by the people. This act created a board of pardons and paroles consisting of three members. The board was given the power to pass upon reprieves, commutations, paroles, and pardons, and the Governor was prohibited from exercising any executive clemency unless first recommended by the board. It further provided that all applications for executive clemency made to the Governor were to be transmitted by him to the chairman of the board of pardons and paroles for its recommendation.2

The limitation thus placed upon the power of the Governor to grant pardons or other acts of executive clemency was immediately challenged in the courts. The legislation adopted by the people was upheld as constitutional by a divided court in the case of Laird v. Sims. The majority of the court upheld the restrictions on the power of the Governor although fully recognizing that they were departing from decisions made under similar provisions in other States. They justified their conclusion on the ground that the restriction on the Governor's power was probably in accordance with the intent of the members of the Arizona

1 Ariz. Const. art. V. § 5.

2 Ariz. Rev. Code Ann. (Struckmeyer, 1928) §§ 5215-5222. 16 Ariz. 521, 147 Pac. 738 (1915).

Constitutional Convention when they framed article V, section 5, of the Constitution.

The power to grant executive clemency in Arizona, therefore, rests primarily in the hands of the board of pardons and paroles. The only power the Governor has is that of vetoing a favorable recommendation on the part of the board.

In cases of treason the Governor is given the power to suspend the execution of sentence until the next legislative session and the legislature is the body which must finally dispose of such a case.*

The law provides that the Governor must report at the beginning of each session of the legislature every case of reprieve, commutation, or pardon, stating the name of the convict, the crime of which he was convicted, the sentence and its date, the date of commutation, pardon, or reprieve and the reasons for granting the same. Whenever a reprieve or stay of execution is granted in the case where a sentence of death has been imposed, the Governor must within 10 days after granting such reprieve or stay, publish a statement setting forth the reasons for his action in a newspaper of general circulation, and in the county where the conviction was had."

Pardons are not common in Arizona. Apparently only one person was released from the Arizona State prison on pardon during the 8 years 1928-35. A number of pardons were granted after the person had been out on parole for a period.

Board of pardons and paroles.-The board of pardons and paroles consists of the State superintendent of public instruction, the attorney general, and a third member seleccted by those two. The third member is known as the

Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5216.

"Id., § 5218.

• Id. § 5217.

In 1935, 1 of the ex officio members of the board was newly elected to office and 1 was reelected. The newly elected member was desirous of changing the board chairman but the reelected member did not desire a change. A test case was taken to the supreme court. The holding was that the board of pardons and paroles was a continuing body despite changes in membership; after the citizen member is appointed, he can only be removed by joint action of the two officers appointing him; and in the absence of a vacancy, the citizen member continues in office until the qualification of his successor. Hofman v. Frohmiller, 45 Ariz. 365, P. (2d) 1007 (1935).

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