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. Sam v. State, 33 Ariz. 383, 265 Pac. 609 (1928). 23 Ariz. Rev. Stat. Ann. (Struckmeyer, 1928) §§ 5320, 5326. 24 Rules of the Board, No. 3. 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"). 25 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 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 p. 64. tion that when the commutation becomes effective on approval of the Governor, the defendant be granted an immediate parole. Commutations in Arizona are in effect a combination of executive clemency and parole. The sole purpose of the recommendation of a commutation of the minimum sentence is usually to effect a parole. While the Governor usually approves the recommendations of the board in executive clemency cases, he does not always do so. Recently there has been considerable public criticism in Arizona of parole and the release of prisoners. In several cases where the board has recommended commutations, the Governor, because of this criticism, has refused his approval. It is, of course, possible to commute the maximum sentence, and this is sometimes done, although not as often as commutation of the minimum. The effect of a commutation of the maximum is to entitle the convict to unconditional release at the expiration of the new maximum, less any good time allowance. Reprieve.-The Governor has power to grant reprieves, but it seems that this power is also limited by the statute creating the board of pardons, i. e., he can only grant reprieves, like pardons, upon recommendation of the board.31 There is no limitation on the length of time for which a reprieve may be given, nor the number of reprieves possible.32 Whenever a reprieve or stay of execution is granted to a person under sentence of death, the Governor is required within 10 days to publish a statement of his reasons for such action in a newspaper of general circulation and in the county where the conviction was had.83 Parole. The same board which passes upon pardons also administers parole, but in this latter function the board's power is exclusive; the Governor has nothing to do with the paroling of prisoners.34 31 See State v. Sims, 17 Ariz. 410, 413, 153 Pac. 451 (1915). * Rodriguez v. State, 18 Ariz. 74, 156 Pac. 94 (1916) (7 successive reprieves granted, covering a period of 2%1⁄2 years); Peralta v. State, 18 Ariz. 79, 156 Pac. 96 (1916); Chavez v. State, 18 Ariz. 80, 156 Pac. 97 (1916); Perez v. State, 18 Ariz. 81, 156 Pac. 97 (1916). Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5217. 34 Id. § 5220; State v. Superior Court, 30 Ariz. 332, 246 Pac. 1033 (1926). 73115-39-VOL, I-7 Effect of pardon.-The granting of a pardon ends all imprisonment or penal control over the person pardoned and also restores full citizenship privileges. A reprieve merely postpones the execution of judgment and does not and cannot defeat its ultimate execution.35 GOOD-TIME DEDUCTIONS History-As early as 1901, during territorial days, a law dealing with good-time deductions was passed in Arizona which was substantially the same as the existing law. The only change that has taken place is with reference to the administrative body. Under the law of 1901 good-time deductions were handled by a board of control which had charge of all penal institutions.1 In 1928 the board in charge of good time deductions became the board of pardons and paroles.2 By whom administered.—The matter of good-time deductions is administered by the State board of pardons and paroles.3 Persons eligible.-Every convict faithfully performing the labor required of him and being in all respects obedient to the prison rules, or if unable to work, yet faithful and obedient, is entitled as a matter of right to good-time deductions." Amount of deduction.-Eligible prisoners are entitled to a deduction of 2 months from each of the first 2 years, 4 months from each of the next 2 years, and 5 months from each of the remaining years of the term. In addition, all prisoners in the State prison, while working on the public highways, the prison farms or holding any other position of confidence and trust, while working as trusties, outside the 35 Rodriguez v. Sims, 18 Ariz. 74, 156 Pac. 94 (1916). 1 Ariz. Rev. Stat. (1901) §§ 3563, 3589. Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5318. 8 Ibid. 4 Ibid. Id. § 5318. The deduction must be from the maximum term of sentence and not from the minimum in indeterminate sentence cases. Clark v. State, 28 Ariz. 470, 204 Pac. 1032 (1922); Orme v. Rogers, 32 Ariz. 502, 260 Pac. 190 (1927). Where the minimum and maximum sentences are close together the prisoner may be released before the end of the minimum sentence because of good-time deductions. Clark v. State, 23 Ariz. 470, 204 Pac. 1032 (1922). prison walls and without requiring armed guards, are allowed a deduction of half their term of sentence." Forfeiture.-Any convict assaulting or in any way endangering the life of any person connected with the prison or committing any flagrant violation of the rules, loses all good time allowance theretofore earned. But the board may order a forfeit only after due proof of the offense and notice to the offender. Furthermore, the forfeiture may not be imposed for a violation of rules committed without violence or evil intent. The board is sole judge as to what constitutes violence or evil intent.' The board may also forfeit the double time earned by trusties, in case of breach of trust in any manner and upon recommendation of the superintendent of the prison. Restoration.-No provision has been found in regard to the matter of restoring lost good-time credits. EXPIRATION OF SENTENCE Effect of release.-It is provided by statute that a sentence of imprisonment in a State prison for any term less than for life suspends all the civil rights of the defendant and forfeits all public offices and all private trusts, authority or power during the term. Upon discharge his civil rights, including the rights of suffrage, are automatically restored, and it is not necessary that a pardon be granted by the board of pardons and paroles before the defendant is entitled to vote.2 Discharge gratuities.-Discharged prisoners are given $5 in cash and a suit of clothes costing not more than $15. They also receive a nontransferable ticket on any railroad adjacent to the place of discharge for any continuous distance not to exceed 300 miles. The ticket is void unless used Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5319. * Id. § 5318. ® Id. § 5319. 1 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 4903. 2 Opinion Att'y Gen. (June 24, 1936). Released felons returning on the prison grounds in the night time are guilty of a felony. Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 4578. |