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torial power over all institutions to which any person is committed on a criminal charge, whether such institutions are wholly or partially supported by public funds.22

Hearing: When held and how conducted.—It is provided that the board must convene once every 3 months to consider the advisability of granting certain paroles,28 although it appears that, as a matter of fact, the board actually meets 1 day each month for such purpose.

24

The 1937 parole act does not refer to the manner in which the board of pardons and paroles shall conduct its parole hearings. Prior to the enactment of this act, hearings on parole were conducted by the prison board and were, of necessity, conducted in a summary fashion.25

Hearing: Disposition.-If a majority of the members of the board are of the opinion that the interests of the State and of the prisoner will be advanced by a parole, the same may be granted.20

Conditions for parole.-The law of 1937 authorizes the granting of paroles on condition,27 and the majority of the

22 Ibid.

23 Ark. Dig. Stat. (Pope, 1937) § 12734.

24 "The board of penal institutions meets as a parole board 1 day each month at the capitol, although the law provides that it shall be the duty of the State board * to convene on the first Monday in June, 1907,

and on the same date each 3 months following.'" The Prison Labor Problem in Arkansas, a survey by The Prison Industries Reorganization Administration (1936) 40.

25 Hearings by old prison board:

"Prisoners are not interviewed by the board. Attorneys or others are not allowed to appear at the meeting, but they interview members of the board at other times. A representative from the State comptroller's office sits with the board, and also the superintendent of the penitentiary, who presents the records of all prisoners eligible for parole. Application not granted may be rejected, in which event new applications must be prepared (and may be at any time) but are usually deferred until the next meeting. On the parole day in June 1936, there were 243 cases to be considered, of which 77 (an unusually large number) were granted. Concurrence of three members of the board is required.

"The superintendent of the penitentiary presents the legal history and prison record. The board requires a statement from the prosecutor that no other indictments are pending against the prisoner. Recommendations from the judge, sheriff, members of the jury, or citizens are considered. In cases recommended by the Governor, parole is granted without further investigation. "In view of the large number of cases to be gone over in 1 day, it has become the practice to pass over without much consideration cases of prisoners who have served previous prison terms or who have been convicted of certain serious offenses. Paroles of women are left largely to the women members, who confer with the superintendent of the women's division". Id. at 40-41. 26 Ark. Dig. Stat. (Pope, 1937) § 12771.

27 Ibid.

board are empowered to impose just and proper conditions.28 Employment for the parolee as a condition precedent to granting of a parole is made mandatory by statute.29 When a prisoner is discharged on parole he is given a suit of clothes and $2.50 in money. In addition he receives a certificate of discharge which indicates that he has a right to be at large.

Supervision.-Responsibility for proper supervision of all parolees devolves upon the director of probation and parole.30

The supervisory system under the former law was patently inadequate, a condition which was undoubtedly an important factor underlying the enactment of the 1937 Parole Act.

State police officers and other peace officers may now be called upon by the State director of probation and parole to aid in the enforcement of the 1937 Parole Act.31

Procedure on violation of parole.-The new act establishes no definite procedure to be followed upon violation of parole, although the board is given power to revoke parole at any time before expiration of the prisoner's term of sentence.32

A paroled prisoner fleeing beyond the limits of the State may be returned as a fugitive from justice.

33

Recommitment: Effect on original sentence.—The statutes do not indicate the effect which recommitment has on the original sentence of a parole violator. However, as a matter of practice, the entire period during which the person was out on parole is disregarded with reference to the original sentence.

Recommitment: Effect on eligibility for further parole.— The recent parole law does not indicate whether a parole violator is again eligible for parole. Under the rules of the former prison board a violator was liable, when arrested, to serve out the unexpired period of his maximum possible

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punishment. In practice violators were rarely granted further paroles.

Final discharge. The statute provides that "when a prisoner who has acceptably served not less than 6 months of his parole and has given evidence that he will remain at liberty without violating the law and that his final release is not against the welfare of society, and when it appears to the board's satisfaction that the prisoner has faithfully served the term of his parole and in its opinion the prisoner can safely be trusted at liberty and his final release will not be against the welfare of society, the board may enter an order discharging the prisoner, which operates as a complete discharge when it is approved by the Governor and a certified copy thereof is delivered to the prisoner." " In practice, however, the former prison board adopted the practice of continuing the parole period until the time at which each parolee's maximum term of sentence, less good time deductions,85 had expired.

EXECUTIVE CLEMENCY

34

Power in Governor with advisory board.-The constitution of Arkansas provides that "in all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction; and to remit fines and forfeitures under such rules and regulations as shall be prescribed by law. In cases of treason he shall have power, by and with the advice and consent of the senate, to grant reprieves and pardons; and he may, in the recess of the senate, respite the sentence until the adjournment of the next regular session of the general assembly." 1

The Governor's power under this provision is not absolute, but is subject in its exercise to such regulations as the legislature may see proper to impose and which do not sub

34 Ark. Dig. Stat. (Pope, 1937) § 12737.

35 Commutations for exemplary conduct.—It is the Governor's duty to commute the sentence of a prisoner whose conduct has been exemplary, said commutation to be as follows: 1 month from the first year's term of confinement, 2 for the second, 3 for the third and each succeeding year until the tenth year, and 6 months for each succeeding year thereafter. Id. § 12732.

1 Ark. Const. art. VI, § 18; Ark. Dig. Stat. (Pope, 1937) § 5396.

stantially deprive the chief executive of this power. A legislative act prohibiting the Governor from granting any pardon except upon application and publication of notice was accordingly held valid."

Moreover, the courts have power to inquire whether the legislative requirements have been met, and if not, to declare the pardon void.

The Governor is required to communicate to the general assembly at every regular session each case of reprieve, commutation, or pardon, with his reasons therefor, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon, or reprieve.*

The Governor's power is further limited to granting clemency to individuals under sentence or judgment for crime, penalty, or forfeiture, and does not extend to the granting of general amnesty, or relief from civil penalties and forfeitures."

While the Governor has no power to grant a pardon before conviction, the legislature has. Such an act is not an invasion of the executive power (there being no power in the executive to grant pardons before conviction). And at least if the act of the legislature occurs before indictment, it is no interference with the judiciary, whose jurisdiction has not yet attached."

Board of pardons and paroles.-In 1937 the State penal board was declared to be a board of pardons and paroles, with power to grant paroles and to "investigate and consider all applications for executive clemency and make recommendations thereon to the Governor."7

*

The phrase in the constitutional provision, "under such terms and regulations as shall be prescribed by law," refers to the entire sentence. "The fact that a semicolon follows the word 'conviction' instead of a comma, as in the similar clause of the constitution of 1836, cannot be treated as altering the meaning of the sentence." Hutton v. McCleskey, 132 Ark. 391, 394, 200 S. W. 1032 (1918); Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926). Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926). Ark. Const. art. VI, § 18; Ark. Dig. Stat. (Pope, 1937) § 5396. Hutton v. McClesky, 132 Ark. 391, 200 8. W. 1032 (1918) (general remis. sion by the Governor of the statutory penalty imposed on owners who failed properly to assess their property held invalid).

• State v. Nichols, 26 Ark. 76 (1870) (legislative "Act of Pardon and Amnesty" of 1867 upheld).

'Ark. Dig. Stat. (Pope, 1937) § 12773.

Persons eligible.-The executive pardoning power may be exercised only "after convicton" except in case of impeachment. In cases of treason, the advice and consent of the senate must be obtained. The phrase "after conviction" is construed to be after conviction in a lower court. Thus, the Governor may grant a pardon while the case is pending on appeal.s

*

Procedure.-It will be recalled that the constitutional grant of the pardoning power to the Governor provides that it shall be exercised "under such rules and regulations as shall be prescribed by law." Acting under this provision the legislature has prescribed in some detail the manner in which the power of clemency may be exercised. For example, it has prohibited the Governor from considering any application for clemency "until there is filed in his office a certificate of the county clerk, or the affidavit of two persons known to be credible, that the application has been published as hereinafter provided." The statute goes on to prescribe that in all felonies, and in the offenses of wife-beating, unlawful carrying of weapons and unlawful sales of liquor, an application, "setting forth the grounds upon which the pardon is being asked, together with the list of signers or petitioners uniting in the request for pardon, must be published in two insertions in a weekly paper, if one be published therein, in the county where the conviction was had, or, if the conviction was had in a county other than that in which the offense took place, then in both counties." In other cases publication may be made by posting on the courthouse door of the county or counties for a period of 10 days prior to the presentation of the application to the Governor."

The Governor has the right to grant a pardon without publication when he acts on his own initiative or is prompted thereto by the result of an investigation made at his instance. But in such case the Governor must state on the face of the certificate that it was granted by him without application being made to him by any attorney or paid representative of the person pardoned. Also, when it appears that the applicant is unable to pay for publication,

Ark. Const. art. VI, § 18; Cole v. State, 84 Ark. 473, 106 S. W. 673 (1907). Ark. Dig. Stat. (Pope, 1937) §§ 4218-4220.

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