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citizen member and is the chairman of the board. The citizen member of the board devotes practically full time to clemency matters and receives as compensation for his services the sum of $7 per day while attending the meetings of the board, and each one of the members receives his necessary or actual travel and hotel expenses while engaged in the performance of his duties.

The parole clerk at the State prison acts as secretary of the board. The board has power to make rules and regulations for the conduct of its business."

Persons eligible.-As already indicated all convicted persons are eligible to pardon, except upon impeachment. Persons convicted of treason can be pardoned only by the legislature. Persons sentenced to death are eligible to pardon, subject only to the requirements of publicity to the Governor's action in such case.10

There is a statute which states that no pardon or commutation shall ever be granted to any prisoner in any case where the prisoner has been twice convicted of a felony, unless upon the written recommendation of a majority of the judges of the supreme court.11 No attention is paid to this provision in practice. The justices of the supreme court several years ago informally told the chairman of the board that they considered this statute an improper delegation of power to the judiciary. While no case has ever arisen on the point, this would undoubtedly be the holding and, consequently, the board ignores the provision. The statute is copied from a similar one in the California Penal Code; however, in California, the statute is based on a constitutional provision,12 while in Arizona theer is no such constitutional requirement.

No application for commutation or pardon filed by a prisoner whose minimum sentence is 5 years or more is to be considered by the board until he has served a period of

8 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5219.

• Id. § 5223.

10 See ante, p. 73.

11 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5318; Rules of the Board, No. 28.

12 Cal. Const. art. VII §1; Cal. Penal Code (Deering, 1937) § 14, 18.

1 year, nor is such application to be considered if his minimum sentence is less than 5 years unless he has served 6 months. Exceptions to this rule may be made where there is prima facie evidence of innocence or of a lesser degree of guilt than that for which the prisoner was convicted.13

No application for executive clemency is to be considered by the board in a case where a prisoner has escaped until the applicant has served at least 1 year in addition to his minimum sentence.1 Where an applicant has been denied executive clemency, he may not again apply for consideration until 6 months have elapsed.15

Procedure: Application.-When application is made for a pardon, the board may require the judge or county attorney in the county where the case was tried to submit without delay a statement of facts proved at the trial and of any other facts having reference to the propriety of granting or refusing the pardon.10

At least 10 days before the board acts on an application for a pardon, written notice of intention to apply signed by the person applying must be served on the county attorney of the county where the defendant was convicted and proof of such service must be presented to the board. A copy of the notice must also be published for 30 days in a newspaper in the county in which the defendant was convicted. Such notice and publication may be dispensed with by the Governor. These requirements apply only to applications for full pardon and not to commutations or reprieves, but similar requirements apply to commutations.18

No application for executive clemency is entertained by the board during the pendency of an appeal to the supreme court taken by the defendant or at any time before judgment and commitment by the superior court has been pronounced.19

13 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5220; Bules of the Board, No. 12.

14 Rules of the Board, No. 24.

15 Id. No. 17.

16 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5221.

" Id. § 5222; Rules of the Board, Nos. 13-15.

18 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5320, as amended, Ariz. Laws 1937, c. 28.

19 Rules of the Board, No. 18.

An application for a pardon filed by a prisoner on parole must be accompanied by a sworn statement by two citizens of good repute, that the applicant's conduct for a period of at least 1 year preceding the filing of the application has been consistent with good morals and right living.20

Procedure: Hearing.-The board is required to meet quarterly at the prison. However, the present board follows the practice of meeting there every 2 months. Any case coming before the board must first be heard at such a meeting, although the hearing may be continued for final disposition to a meeting of the board at the State capitol. An office is provided in the capitol building for the chairman of the board of pardons and paroles and the other two members are State officials with their offices in the same building. It is, therefore, convenient for the three members to confer at almost any time. With very few exceptions every person whose case is heard by the board appears personally before the board, is questioned by the members and is permitted to make any statement he wishes. Friends and relatives frequently appear with the prisoner and occasionally an attorney appears. The policy of the present board is to discourage the appearance of counsel on behalf of the prisoner.

Because the chairman is the only member of the board who does not hold another full-time public office, he is the only member who has an opportunity to make a preliminary study of the case before the hearing. The other two members of the board depend on the limited information in the records at hand for their knowledge and understanding of the case. The members of the board have a tendency to cross-examine the defendant in their questioning and, in a sense, to retry the original case. While undoubtedly a pardon board should properly give consideration to the motivation of the offender in committing his crime, a hearing designed to determine whether or not a prisoner is ready to be released should not place too much emphasis on the offense committed. When the board completes the inter

20 Id. No. 16.

view, the prisoner retires and the board after a very brief discussion of the case makes its decision.21

The supreme court has said that the board of pardons and paroles has the power, not possessed by the supreme court, to go outside the record and examine affidavits and hear evidence, after affirmance of the conviction by the supreme court, and where innocent defendants may have been convicted, this procedure was suggested as the remedy.22 But this statement by the court was pure dictum and in the particular case was probably an effort to shift the responsibility for final action on the case to the pardon board.

Absolute dicharge.-There are a statute 23 and a rule of the board 2 which provide that only convicts who have served their minimum term may be given an opportunity to apply for release on parole or for an absolute discharge. Although in one case the Arizona supreme court seemed to assume that this provision applied to pardons,25 this was mere dictum. In another case, the court distinguished the "absolute discharge" mentioned in this section from pardon.26 Probably all the term was intended to refer to is the

"The regional director of the Attorney General's Survey of Release Procedures attended a meeting of the board held July 20, 1936. At this meeting, in a morning and afternoon session totaling 5 hours, the board considered 52 cases. This is an average of only 6 minutes devoted to each case. Of course, many cases took even less time. In some a mere glance at the defendant's former record was sufficient for the board to deny the application. One or two cases consumed as long as 20 to 25 minutes. Of the 52 cases considered, 14 of them were persons whose minimums were expiring during the months of August or September, 1936, and who were, therefore, receiving consideration for parole. But the largest number of cases heard at this meeting were applications for commutation of minimum sentence. Of 31 such cases, 11 were recommended for commutation and parole; 11 were denied such a recommendation; 7 were passed; in 2 the board did not take any action. This means that in the last two cases mentioned subsequent action would be taken in a meeting at the State Capitol. The other three cases considered involved: the recommendation of commutation of the maximum sentence of a life termer, the consideration of an application for full pardon on which no action was taken and the granting of an application for parole for one person confined in a county jail.

22 Sam v. State, 33 Ariz. 383, 265 Pac. 609 (1928).

22 Ariz. Rev. Stat. Ann. (Struckmeyer, 1928) §§ 5320, 5326.

Rules of the Board, No. 3.

25 Clark v. State, 23 Ariz. 470, 477, 204 Pac. 1032 (1922) ("a convict serving an indeterminate sentence shall not be permitted to file an application for a pardon or absolute discharge until his minimum term has expired").

"Orme v. Rogers, 32 Ariz. 502, 513, 260 Pac. 199 (1927) ("this discharge is more than a parole in that it releases the prisoner from any further imprisonment for the same offense, no matter what his conduct thereafter, but less than a pardon in that it does not restore his right to vote, sit on a jury, etc.").

release of a parolee from the legal custody and supervision of the penal authorities, at the successful termination of parole. As a matter of fact no formal "absolute discharge" is ever granted, and so this provision of the statute is, in fact, a dead letter. The consensus of opinion of the present members of the board (which, it is to be observed, includes the members of the supreme court and the attorney general) is that such an "absolute discharge" cannot be granted by the board, because it is in the nature of a pardon.

Conditional pardon.-The constitution expressly provides that the governor may grant reprieves, pardons, and commutations "upon such conditions and with such restrictions and limitations as may be provided by law." 27 The statute authorizes him to do so upon such conditions and with such restrictions and limitations "as he may think proper." 28

Commutation.-Many applications for commutation are heard by the board. The reason for this is that Arizona judges often impose minimum and maximum sentences without any apparent conception of the action of the two kinds of "good-time" deductions on the maximum sentence. Consequently unless minimums are commuted, the maximum with good time-credits expires before the minimum in a large number of cases.29 Therefore, the board in such cases frequently commutes the minimum sentence, in order to allow the person to be released on parole for a period before the expiration of his maximum sentence.30

Commutations recommended by the board have to be approved by the Governor before they take effect. In practice recommendations for commutation made by the board in a meeting are generally acted upon by the Governor within the week following the meeting and, where the action is favorable, the prisoner is released as soon as official notice of the Governor's approval is received.

Usually when the board recommends the commutation of a minimum sentence, they also include the recommenda

27 Ariz. Const. art. V, § 5.

28 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5215.

See, e. g., Clark v. State, 23 Ariz. 470, 204 Pac. 1032 (1922).

30 For a discussion of this problem see the Arizona digest on Parole, infra

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