clemency board is a farce Original Article Clemency voice goes unheeded Board's advice on sentences largely ignored by governor Amanda J. Crawford and Ryan Konig The Arizona Republic May. 22, 2005 12:00 AM Arizona governors are largely ignoring advice from the state's clemency board, leaving hundreds of prisoners serving time that the board has said doesn't fit their crimes. A decade ago, Arizona abolished parole, leaving the governor with the final say if any inmates should be let out of prison early. Since then, the number of inmates recommended to the governor for shortened prison terms by the Board of Executive Clemency has skyrocketed. But in the vast majority of cases, even in those where the trial judge agrees with the board that a sentence is too long, the governor has rejected the board's recommendations. Experts say governors may be too concerned about the political ramifications of their actions to take the risk that clemency poses if an inmate commits another crime. This has left some to see the clemency process as futile, too influenced by politics and unable to fulfill its role as the only "safety valve" in a system rigid with mandatory sentences. The Board of Executive Clemency is the only place where the length of a sentence can be reviewed and the only place judges can turn when they think justice has not been done by a mandatory sentence or plea bargain handed down in their courtrooms. "There ought to be a fail-safe in any system because there are always going to be mistakes or injustices," says Margaret Colgate Love, a former U.S. Department of Justice official responsible for the federal clemency program from 1990 to 1997. "Because of the politicization of crime and the fearfulness of politicians, I think that governors tend to be fearful of making a mistake." Last year, the board recommended reducing or "commuting" the sentences of 75 inmates, including 16 who had their sentencing judges' support. Gov. Janet Napolitano granted seven, four of whom were inmates on their deathbeds. The governor's attorneys say she looks for the best cases among those recommended by the clemency board that warrant her special intervention. Though the governor does not have to give a reason for denying clemency, her attorneys cited prior offenses or the use of a weapon as reasons for denying some commutations. Robert Sheldon, a 23-year-old from Peoria, was among those recommended for a commutation by the board last year. Sheldon is serving a seven-year prison term for a drunken-driving accident when he was 18 that killed his best friend. The clemency board recommended that Sheldon be released in July, 32 months early, but the governor denied the commutation. "Why do we even have a clemency board if nothing they say means anything?" asks Debbie Oleson, Sheldon's mother. "They gave us false hope. . . . I was so happy, and then, boom. In a heartbeat that all changed to a stamped 'no.' " A national issue The infrequent use of the clemency power has become an issue nationwide. In a 2003 speech to the American Bar Association, U.S. Supreme Court Justice Anthony Kennedy said he believed that the process had "been drained of its moral force" at a crucial time and could be reinvigorated to address shortcomings in the justice system, a recommendation taken up by the ABA in a subsequent report on sentencing and corrections issues. But the problem may be even more acute in Arizona, which has more people per capita in prison than any other Western state, tougher sentencing laws than most states and no parole. An Arizona Republic analysis of sentence commutations shows: The number of applications for commutations has skyrocketed to 1,014 last year from 28 in 1994. Recommendations for sentence reductions have grown from three to 75 a year in the same time period. The most commutations granted in one year by an Arizona governor was 12 in 2002 by Gov. Jane Hull. Even in cases in which the judge supports the application and has filed a "603L" order saying the sentence required by law is "clearly excessive," relief is seldom granted. Of the 20 "603L" cases heard by the board last year, the board recommended reduced prison terms in 16 cases. The governor granted only one, reducing the sentence of a middle-age man sent to prison for drug possession to seven from 10 years. The clemency board had recommended a three-year sentence. Arizona law provides one political out for its governors: If a clemency board vote is unanimous, as it was in 46 of the 75 recommendations last year, the commutation happens automatically if the governor does not act. While Hull allowed six commutations to go into effect without acting, Napolitano has never allowed that to happen. Eliminating parole In 1994, the state Legislature made major changes to the criminal code. Among the changes was the elimination of parole for all new inmates, even non-violent offenders. Before, most inmates could apply for parole after serving half of their prison terms. If granted parole, an inmate would be released early but his sentence remained intact and he could be returned to prison if he violated conditions of his release. Now, under "Truth in Sentencing" guidelines, inmates must serve at least 85 percent of their sentence before they can be released, a decision made administratively by the Department of Corrections. With the elimination of parole, commutations became more popular since they were the only way an inmate could get a midterm review. With an increase in mandatory sentencing guidelines, the process also took on added importance as the only way inmates could appeal the length of their terms. But a commutation is different than parole in that it actually shortens the length of the sentence. With the changes in 1994, the parole board was reborn as the Board of Executive Clemency and has toiled away in relative obscurity since, hearing an ever-increasing number of cases each year as Arizona's population and its prison system have grown. The board's five members are full-time state employees paid $44,995 a year each and appointed by the governor to staggered five-year terms. In addition to commutations, the board handles pardon requests (also part of the clemency process), violations of community supervision and parole for pre-1994 inmates. Young and old, rich and poor, drug addicts and violent criminals - board members see it all. After serving two years in prison, any inmate with at least one year left on his or her sentence can apply for a commutation. Few get past the first stage. Of the 1,014 commutation cases heard by the board last year, most were denied after an initial hearing. Only 112 cases made it to the board's "second phase," a more detailed hearing in which the inmate and interested parties are usually present. Those inmates who have their judge's support or who are near death automatically go on to the second phase, and are more likely to get the board's recommendation. Check and balance Duane Belcher, the clemency board's chairman and executive director, said that Arizona's commutation process was not designed for the number of cases it is hearing but that its mission is "critical." "Everything does not fit into the nice little picture we'd like it to fit, and that is what clemency is all about," he said, referring to mandatory sentence rules passed by the Legislature that dictate sentencing ranges for some offenses. "There are errors made in our criminal-justice system. . . . And there are those individuals who genuinely have not been given a fair shake by our criminal-justice system based on inadequate legal representation or a number of other factors." In Arizona, the clemency process has become the only check and balance in a system where much of the discretion over the length of prison terms now rests in the hands of elected prosecutors. Like many state Legislatures and the U.S. Congress over the past 30 years, Arizona legislators sought to address disparities in judicial sentencing by passing laws that dictate sentencing ranges for some offenses. Now, prosecutors decide whether to file a charge with a mandatory sentence, whether to add "enhancements" for prior offenses or other reasons and whether to offer a plea bargain with a lighter sentence. The only option for a judge who disagrees with a plea bargain or mandatory sentence is to file a 603L order calling the sentence "clearly excessive" and enabling a direct appeal to the clemency board. Take the case of Linda Johnson. In October 2001, Johnson had a fight with her adult daughter. A former alcoholic who suffered from depression, Johnson went home, drank two bottles of Greek wine, took half a bottle of Prozac and returned to her daughter's house with a gun she said she knew did not work. She waived the gun at her daughter, a neighbor and then at the police, screaming, "Kill me!" She eventually surrendered peacefully. Johnson, who admitted she was attempting "suicide by cop," faced a mandatory 10 1/2 -year prison sentence, if convicted. Because she was technically guilty, she accepted instead a plea bargain for seven years in prison. Judge Pamela Franks of Maricopa County Superior Court said she believed Johnson didn't deserve to go to prison at all because no one was hurt and Johnson's mental health clearly played a role. Franks said she wanted to see Johnson get probation and one year in the county jail. The judge sent the prosecutor back to her office to seek a better deal for the then 46-year-old. Then-County Attorney Rick Romley's office refused to budge on the length of the prison term because Johnson had pointed a gun at police. So Franks filed a 603L order allowing Johnson a direct appeal to the clemency board. The board voted unanimously last year that Johnson should be let out of prison after serving nearly three years. The governor denied the commutation. Tim Nelson, chief counsel for Napolitano, said Johnson was not a good candidate for a commutation. "When you are putting law enforcement lives in jeopardy or fear that their lives are in jeopardy, I don't think that is too long of a sentence," he said. A few special cases Nelson and assistant counsel Nicole Davis, who both review clemency applications and make recommendations to the governor, are looking for the few special cases among the dozens referred by the board that might warrant the governor's intervention. They said that they consider the crime committed, the person's prior record and the likelihood the person will reoffend, all things the clemency board considers, too. A prior record or the use of a weapon stands among the primary reasons they cited for not granting commutations. The clemency board plays an important role by making the first cut, they said. From there, the governor and her staff look for cases so "compelling that the system we have set up should be disrupted in some way," Nelson said. "I don't think it is the proper role of the executive branch to undermine the sentencing guidelines established by the legislative branch and administered by the judicial branch," he said about the small percentage of commutations approved. Leonardo Ruiz, division chief of the criminal trial division for the Maricopa County Attorney's Office, questions the resources devoted to commutation process. He said he does not believe there needs to be a "check" on his or other prosecutors offices. Discretion appropriately rests with prosecutors who, unlike judges, are politicians and thus accountable to the people, he said. "We try to use the discretion we are given in the system fairly and when somebody gets sentenced to a long prison term, typically it is because they deserve it," Ruiz said. But critics say legislators, in response to high profile crimes, often pass rules calling for sentences that are unnecessarily long or unwarranted in some cases. Prosecutors sometimes push for harsher sentences to appear tough on crime. And governors, who like prosecutors and legislators always have another campaign around the corner, may be reluctant to act for fear of making a wrong choice and it coming back to haunt them politically. Former Justice Department official Love and other experts say the 1988 presidential race between Democrat Michael Dukakis and Republican George H.W. Bush provided a poignant lesson for politicians. Willie Horton, a Black man released from prison in Massachusetts while Dukakis was governor, fled to Maryland where he committed a rape. Bush's campaign latched onto the Horton story to portray Dukakis as "soft on crime" even though Horton was released on a routine prison furlough, not by any specific action of Dukakis. A commission formed by the ABA in response to Justice Kennedy's speech pointed to the Horton case as one that has helped shaped the current trends. Bucking the trend Commutations are rare across the country, though they are more likely in the six states with boards that act independently of the governor or can bind the governor's actions, said Love, who helped draft the ABA report. They are also somewhat more likely in the eight states where a board advises the governor, as in Arizona, than where the governor acts independently and has no such political insulation, she said. Arizona is among the states that buck that trend. Napolitano, like other Arizona governors, has been much more likely to grant commutations in "imminent danger" cases where doctors have certified that inmates are within weeks of death. These decisions are much easier because the likelihood the individual will commit another crime is "practically nil," Nelson said. Napolitano has granted all but one of the imminent-danger cases referred to her, he said, and this was the reason for four of the seven commutations she granted last year. Two of the other three cases granted by the governor last year were drug offenders whose previous drug arrests had landed them prison terms longer than those given in many violent crimes. In both of those cases, the governor did not reduce the sentence as much as the clemency board had recommended. In the third case, a young man who fought a conviction in an armed robbery claiming his innocence, and with some compelling evidence of an alibi, landed a much longer sentence than those who admitted guilt in the case. His term was reduced but not as much as was recommended by the clemency board. "If that person goes out and commits another crime, that victim is the real concern," Nelson said about the decision-making behind the commutations. "And there is, obviously, political consequences to the governor." Easy to say no Mel McDonald, a former federal prosecutor and prominent Phoenix defense attorney, has represented several clients before Arizona's clemency board but complains that the process is "futile" with the governor involved. "It is just too politically easy to say no," he said. "Nobody is going to criticize you if you say no, other than the family of the person who applies for clemency. The process doesn't work, and it is not fair with the governor in the loop." A bill introduced in the Legislature this year by Republican Sens. Linda Gray, Robert Blendu and Thayer Verschoor would have asked voters to approve a measure amending the state Constitution to take the governor out of the commutation process. Companion legislation would have allowed the board's sentencing recommendations to stand on their own. Gray said she introduced the bill after hearing about a compelling case denied by the governor. She said she was concerned that taxpayer money was being wasted by keeping some inmates in overcrowded prisons longer than needed and that politics, too, influenced the process. The measures died in committee. Gabriel J. Chin, co-director of the law, criminal-justice and security program at the University of Arizona's James E. Rogers College of Law, said clemency can be viewed in two ways: as "an established part of the criminal-justice system that equalizes, rationalizes, makes consistent sentences" or as "a lightning strike, like a winning lottery ticket, that almost never will be deployed except for some extremely unusual or distinctive case." Commutations in Arizona have been used as a lightning strike even though it is clear from the 603L provision and the lack of any other way to appeal the length of a prison term that it was set up as a safety valve, he said. "It is understandable why a governor would hesitate to do it, but it leads to unnecessarily harsh sentences not being disturbed and inequitable sentences not being disturbed," Chin said.