by John E. Dannenberg

Only seven Arizona prisoners were granted clemency in 2004, four of whom were on their death beds. This gaunt statistic is the natural progression resulting from Arizona's abolishing parole a decade ago, replacing justice with politics in the form of the Board of Executive Clemency (BEC) and governor's veto.

Prior to 1994, Arizona prisoners with determinate sentences (i.e., a fixed number of years) were eligible to apply for parole after serving half of their term. Under the 1994 Truth in Sentencing" guidelines, such parole was abolished, and prisoners must now do at least 85% of their time, at the discretion of the Department of Corrections (ADOC). In addition, the 1994 laws provide for a mid-term clemency review by the new BEC, subject to approval of any case by the governor. As a result, clemency applications have jumped from 28 in 1994 to 1,014 in 2004, with grant recommendations rising from 3 to 75, respectively.

Of those 75, 46 were unanimous. A unanimous vote portends automatic commutation, unless the governor intervenes. All other grants require affirmative gubernatorial approval to become effective. However, Governor Janet Napolitano did not permit any automatic grants to proceed, instead interceding in every case and permitting only seven releases. This meager result was only slightly bested by Governor Jane Hull, who in 2002 set the all-time Arizona record of twelve such commutations.

There has plainly been a politicization of the early release process. Arizona's governors are ever mindful of former Massachusetts Governor Michael Dukakis' failed U.S. Presidential run in 1988. Dukakis was politically ruined by the rape committed on a family visit pass by Massachusetts prisoner Willie Horton, whose image was festooned on his opponent's, first Al Gore in the Democratic primary and then George Bush I's, TV ads nationwide to show that Dukakis' revolving door" weekend pass policy demonstrated a fatal soft-on-crime" weakness. Arizona's governors have since been loathe to let anyone go home one day sooner than the maximum.

While pre-1994 parole releases were vested in the ADOC, the new scheme transferred all power of release to the governor. Although BEC perhaps performs a valuable screening function, it cannot actually effect any early releases. Of the1,014 initial hearings in 2004, only 112 progressed to the more thorough second phase" hearings, wherein the prisoner and interested parties are present. That GEC's illusory authority is by design as demonstrated by the fact that Arizona, which incarcerates more citizens per capita than any other western state, sees fit to pay each of its five full-time employee BEC members only $44,995 per year. [By contrast, California, whose Adult Board of Parole Hearings (BPH) can unilaterally release non-murderer life-term prisoners, pays each of its twelve authorized members $99,693 for the approximately 2,000 parole hearings it schedules annually.]

The no-clemency" approach to longer punishment in Arizona is not limited to violent crimes. Arizona permits sentencing judges who support a clemency application to file a 603L" order declaring a sentence to be clearly excessive." But upon 20 such court orders in 2004, which resulted in 16 BEC clemency recommendations, Governor Napolitano acceded only in one case. There, a prisoner doing ten years for drug possession had his term reduced to seven years, notwithstanding the court's 603L order recommending three years.

Tim Nelson, chief counsel for Napolitano, and his assistant Nicole Davis, who review clemency applications for the governor, are looking for a few special cases" that might warrant the governor's intervention, cases so compelling that the system we have set up should be disrupted in some way." (Cases where a doctor certifies that the prisoner is within weeks of death appear to qualify as special" to Governor Napolitano.) Nelson added, 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," when commenting on the miniscule commutation approval rate. Maricopa County district attorney chief Leonardo Ruiz agreed, noting that because prosecutors are elected, they are directly accountable to the people, and therefore not in need of extra oversight. When somebody gets sentenced to a long prison term, typically it is because they deserve it," said Ruiz.

But the political agenda of the resulting 1994 clemency arrangement cannot be denied. Indeed, it is part of a recognized questionable national artifice. Addressing the American Bar Association (ABA) in 2003, U.S. Supreme Court Justice Anthony Kennedy said he believed that the process had been drained of its moral force," suggesting that the ABA marshal recommendations for changes. Today, six states have boards that advise, but do not bind, the governor, while eight states mirror Arizona with commutation monarchies.

Phoenix defense attorney Mel McDonald, who has represented several clients before the BEC, complains that the process is futile" with the governor involved. Nobody is going to criticize you if you say no [other than the applicant or his family]. The process doesn't work...." Sensing this, three Republican state senators, Linda Gray, Robert Blendu and Thayer Verschoor, introduced bills asking voters to amend the state constitution to take the governor out of the loop and let the BEC's recommendations stand on their own. The bills died in committee. University of Arizona's college of law co-director Gabriel Chin opined, It is understandable why a governor would hesitate to do it [clemency], but it leads to unnecessarily harsh sentences not being disturbed and inequitable sentences not being disturbed.
Under Arizona law, the governor need not give any reason to deny clemency. Nonetheless, Napolitano's counsel Nelson remained unabashedly candid about the impetus behind the current no-clemency" policy, [t]here is [sic], obviously, political consequences to the governor."

Source: The Arizona Republic.

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