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).

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

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.

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.14 Where an applicant has been denied executive clemency, he may not again apply for consideration until 6 months have elapsed.1

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.

17 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.