PROPOSED RULEMAKING
BOARD OF PARDONS
[37 PA. CODE CH. 81]
General Provisions
[26 Pa.B. 4988] The Board of Pardons (Board), proposes a total revision of its rules contained in Chapter 81 (relating to Board of Pardons) under the authority of section 909(c) of The Administrative Code of 1929 (71 P. S. § 299(c)) and PA. CONST. Art. IV.
Background
The purpose of these proposed amendments is to update and replace the rules governing the operation of the Board to reflect recently enacted statutory requirements as found in section 909 of The Administrative Code of 1929 and section 34.1(a) of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.34a(a)) and to incorporate current practices of the Board into regulations. The regulations of the Board have not been updated since 1986 and have become outdated for various reasons.
Summary
General Provisions Limitations on Filing (§ 81.223) This section changes the criteria for calculating the time in which a person can refile an application for clemency if the previous application was not granted. The existing regulation uses the filing date of the previous application as the event from which time is calculated to determine eligibility for refiling and the proposed regulation uses the date of the final adverse decision.
Use of Application (§ 81.226) This section expands the existing policy of the Board to notify victims or next of kin as set forth in section 909(d) of The Administrative Code of 1929 who are registered with the Office of Victim Advocate, Department of Corrections or the Board of Probation and Parole.
Listing for Hearing (§ 81.231(a)) Under section 909(b) of The Administrative Code of 1929, this section requires a majority vote of the Board to grant a public hearing on applications filed by prisoners serving life sentences or sentences for crimes of violence.
Listing for Hearing (§ 81.231(b)) Under section 909(c) of The Administrative Code of 1929, this section imposes a 10-day deadline for filing an application for commutation of a death sentence to life in prison. The 10-day period begins when the Governor issues an execution warrant.
Interview of the Applicant (§ 81.232) Under section 909(e) of The Administrative Code of 1929, this section establishes the procedures by which the members of the Board will interview an applicant for commutation prior to a public hearing if the applicant is serving a sentence of death, life or for a crime of violence.
Request for Reconsideration (§ 81.271) This section expands the scope of matters for which an applicant can request reconsideration. The existing regulation allows the applicant to request a rehearing. The proposed amendment would allow an applicant to request that the Board reconsider its decision to deny a public hearing. This section also requires a showing of a change in circumstances as a prerequisite for the request and establishes that requests for reconsideration will be granted by a majority vote of the Board.
Recommendation (§ 81.301) Under section 909(f) of The Administrative Code of 1929, this section requires that any recommendation of the Board presented to the Governor for commutation of a death sentence, life sentence or sentence for a crime of violence must include a requirement that the applicant serve at least 1 year in a prerelease center prior to release on parole. This section also requires that recommendations for commutation made to the Governor be conditional and suggests standard language for this purpose.
Record Maintenance (§ 81.305) This section enumerates the records of the Board to which the public has access.
Affected Organizations and Individuals
The proposed amendments will affect persons seeking Executive clemency by providing rules outlining the process from application to final disposition. Persons affected by a crime, like victims or next of kin, will also be affected by reason of their interest and involvement in the clemency process. A clear, concise and accurate group of regulations will benefit all those involved with the process.
Cost and Paperwork Requirements
There is no fiscal impact associated with the proposed amendments for the Commonwealth, local government, the private sector or the general public.
Effective Date
The proposed amendments will become effective on the day after they are published in the Pennsylvania Bulletin in final form.
Sunset Date
There is no sunset date for these regulations.
Public Comment Period
Interested persons are invited to submit suggestions or objections regarding the proposed regulations to the Board of Pardons, Nelson R. Zullinger, Secretary, 333 Market Street, 15th Floor, Harrisburg, PA 17126, (717) 787-2596 within 30 days of the date of publication of this notice in the Pennsylvania Bulletin. All comments received within 30-calendar days will be reviewed and considered in the preparation of the final regulations. Comments received after the 30-day comment period will be considered for any subsequent revisions of these regulations.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of these proposed amendments on October 8, 1996, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Judiciary Committee and the Senate Judiciary Committee. In addition to submitting the proposed amendments, the Board has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the agency in compliance with Executive Order 1982-2, ''Improving Government Regulations.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed amendments, it will notify the Board within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Board, the General Assembly and the Governor of objections raised.
NELSON R. ZULLINGER,
SecretaryFiscal Note: 56-1. No fiscal impact; (8) recommends adoption.
(Editor's Note: Chapter 81, which appears at 37 Pa. Code pages 81-1--81-13, serial pages (209800)--(209809), is proposed to be replaced in its entirety by the following text.)
Annex A
TITLE 37. LAW
PART III. AGENCIES AND OFFICES
Subpart A. BOARD OF PARDONS
CHAPTER 81. BOARD OF PARDONS GENERAL PROVISIONS
Sec.
81.201. Scope. 81.202. Definitions. POWERS
81.211. Clemency. 81.212. Prerelease arbitration. APPLICATIONS
81.221. Forms. 81.222. Filing. 81.223. Limitations on filing. 81.224. Request for early filing. 81.225. Filing fee. 81.226. Use of application. 81.227. Application to be public. 81.228. Subsequent use by applicant. LISTINGS
81.231. Listing for hearing. 81.232. Interview of the applicant. 81.233. Publication. CONTINUANCES AND REINSTATEMENTS
81.241. Granting continuances. 81.242. Reinstatement. CALENDAR
81.251. Preparation. 81.252. Distribution. HEARINGS
81.261. Time. 81.262. Place. 81.263. Nature of hearings. RECONSIDERATION
81.271. Request. 81.272. Notice. REPRESENTATION
81.281. Appearance of applicant. 81.282. Representation of applicant. 81.283. Fees for representation. 81.284. Commonwealth attorney. CONDUCT OF HEARINGS AND COMMUNICATIONS
81.291. Call of calendar. 81.292. Advocacy. 81.293. Witnesses. 81.294. Communications with the Board. DISPOSITION
81.301. Recommendation. 81.302. Notification of Board action. 81.303. Announcement of action by Governor. 81.304. Charter and warrant. 81.305. Record maintenance.
GENERAL PROVISIONS § 81.201. Scope.
This chapter is applicable to applications for clemency to the Board, including applications for commutation of capital sentences. This chapter will be liberally construed to secure the fair and just determination of every application for clemency.
§ 81.202. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Application--The official form which shall be used to request a clemency hearing before the Board.
Board--The Board of Pardons of the Commonwealth.
Calendar--A published schedule of applications listed for hearings during a particular session.
Capital case--A case in which the applicant has requested a commutation of death sentence to life imprisonment.
Clemency--The power of the Governor to pardon or commute a criminal sentence based upon recommendations by the Board.
Commutation--The reduction of a legal penalty or punishment.
Crime of violence--
(i) Murder of the third degree, voluntary manslaughter, rape, sexual assault, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(I), (ii) or (iii) (relating to robbery) or kidnapping.
(ii) An attempt to commit murder of the third degree, voluntary manslaughter, rape, sexual assault, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1), robbery as defined in 18 Pa.C.S. § 3701(a)(I)(ii) or (iii) or kidnapping.
(iii) An offense committed while in visible possession of a firearm for which sentencing was imposed under 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms).
Filing--The receipt of the application by the Board's office.
Final adverse decision--
(i) The Board's denial of a public hearing.
(ii) The Board's refusal to recommend an application to the Governor.
(iii) The Governor's denial of an application.
Form in forma pauperis--An official form which when submitted permits an applicant to show a verified statement of the inability to pay a required fee. The form shall be used to request the waiver of the application purchase fee or filing fee.
Merit review--The process of reviewing an application by the Board to determine if the application has sufficient merit to hold a public hearing on the matter.
Merit review vote--A public vote by the Board to determine if a public hearing will be held on an application.
Pardon--Forgiveness; an act of grace from governing power which mitigates the punishment the law demands for the offense and restores the rights and privileges forfeited on account of the offense. The term does not mean expungement of the record.
Secretary--The administrator of the Board.
Vote--Action on approval or disapproval taken by a quorum of the Board during its regularly scheduled meeting.
POWERS § 81.211. Clemency.
The Board hears and acts upon applications for:
(1) Pardon.
(2) Commutation of sentences including:
(i) Death sentence to life imprisonment.
(ii) Life imprisonment to life on parole.
(iii) Minimum sentence.
(iv) Maximum sentence.
§ 81.212. Prerelease arbitration.
In cases when eligibility for prerelease from incarceration is in dispute, the Commissioner or Deputy Commissioner of Corrections shall refer the cases to the Board for hearing and resolution as provided under section 1052(c) of the act of July 16, 1968 (P. L. 351, No. 173) (61 P. S. § 1052(c)).
APPLICATIONS § 81.221. Forms.
Applications shall be made on forms prescribed by the Board. The forms shall be obtained from the Secretary for a fee as established by Board resolution, except that the fee will be waived by the Board upon evidence satisfactory to the Board that the applicant is unable by reason of indigency to pay the fee. The official form to proceed in forma pauperis shall be obtained from the Secretary and filed in place of the fee.
§ 81.222. Filing.
(a) The original application and ten copies shall be filed with the Secretary of the Board, 333 Market Street, 15th Floor, Harrisburg, Pennsylvania 17126-0333.
(b) It is the responsibility of an applicant who is not confined to furnish five passport type photographs with the application.
§ 81.223. Limitations on filing.
(a) Except as provided in § 81.224 (relating to request for early filing), an application may not be filed before the expiration of 12 months from a final adverse decision on any prior application.
(b) If an applicant filed in 2 consecutive years and receives adverse decisions from the Board on both applications, an application may not be filed before the expiration of 24 months from the last adverse decision.
§ 81.224. Request for early filing.
(a) A request for permission to file a subsequent application before the time provided in § 81.223 (relating to limitations on filing) may be granted upon prior approval of at least 3 members of the Board.
(b) The Board will respond to the applicant's early filing request within 90 days.
§ 81.225. Filing fee.
(a) Except in capital cases, a filing fee to be determined by the Board shall accompany the application.
(b) The Board may waive the filing fee upon proof of indigency. The official form to proceed without payment of the fee shall be obtained from the Secretary and filed in place of the fee.
§ 81.226. Use of application.
(a) A copy of each application will be sent by the Board to the court, to the district attorney of the county from which the applicant was sentenced and to the correctional institution in which the applicant is confined to obtain expressions of opinions as to the merits of the application, and to the Board of Probation and Parole for its investigation.
(b) If a hearing is granted, the Board will make every reasonable effort to notify victims or next of kin, including providing notification to victims who are registered with the Office of Victim Advocate, the Department of Corrections, the Board of Probation and Parole and those whose whereabouts are otherwise known.
(c) Victims will be notified of their opportunity to offer prior comment regarding an application that has been granted a public hearing. Comment may be accepted in writing or presented orally in person. The Board will provide notice to the victims or next of kin of the date, time and place of any hearing pertaining to their case. Written communications with the Board will be confidential.
§ 81.227. Application to be public.
The application will be available for public inspection.
§ 81.228. Subsequent use by applicant.
An applicant's representative or any of the persons named in § 81.226 (relating to use of application) may obtain a copy of the last application filed by the applicant, upon payment of the costs of reproduction.
LISTINGS § 81.231. Listing for hearing.
(a) Noncapital cases. Applications are subject to merit review by the Board to determine if a public hearing will be granted. For prisoners serving life sentences or sentences for crimes of violence, a vote by a majority of the Board is required to grant a public hearing. In all other cases, except capital cases, two votes are required for a hearing to be granted.
(b) Capital cases. Applicants seeking commutation of a death sentence will automatically receive a public hearing. Applications for commutation of death sentences shall be filed with the Board within 10 days of the Governor's issuance of an execution warrant.
§ 81.232. Interview of the applicant.
(a) If a public hearing is granted to an applicant who is serving a sentence of death, life or a sentence for murder, voluntary manslaughter, attempt to commit murder or attempt to commit voluntary manslaughter, each member of the Board will interview the applicant prior to the public hearing.
(b) If a member does not interview the applicant, that member may not vote at the public hearing.
(c) The interview will be conducted at a time, place and in a manner that is convenient to the Board. The interview may be conducted by the Board as a group or by an individual member. The interview will be held in private. The applicant's attorney or representative may be permitted to attend unless, in the opinion of the Board, the attorney's or representative's attendance would create an undue security risk. The interview will be recorded by the Board. Subsequent use of the recording will be at the Board's sole discretion.
§ 81.233. Publication.
(a) For every application to be heard, the Board will publish a notice stating:
(1) The applicant's true name and other names by which the applicant is or has been known.
(2) The crimes for which the applicant has applied for clemency.
(3) The institution, if any, in which the applicant is confined.
(4) The time and place of the hearing at which the application will be heard.
(b) Except in capital cases, the publication described in subsection (a) will be made at least 1 week prior to the public hearing on the application. It will appear in a newspaper of general circulation in the county where the crimes were committed.
CONTINUANCES AND REINSTATEMENTS § 81.241. Granting continuances.
A continuance may be granted by the Board on its own motion or by the Secretary upon the written request of the applicant or the applicant's representative. Only one continuance will be granted at the applicant's request.
§ 81.242. Reinstatement.
An application may be reinstated by the Secretary only upon written request by the applicant or the applicant's representative.
CALENDAR § 81.251. Preparation.
The Secretary will prepare a calendar of the cases to be heard by the Board at each hearing.
§ 81.252. Distribution.
Calendars will be sent to each applicant or applicant's representative, the district attorney of the county from which the applicant was sentenced, the Commissioner of Corrections, the Board of Probation and Parole, victims of the offense for which the applicant has sought a pardon or commutation of sentence, and, at the discretion of the Secretary, to other interested parties.
HEARINGS § 81.261. Time.
The Board will meet in regular session each month excluding the months of January, July and August except as may be otherwise provided. Sessions may be canceled at the discretion of the Board. Public notice of hearings will be issued in advance of the hearing dates.
§ 81.262. Place.
Hearings will be held in Harrisburg or at other locations in this Commonwealth the Board may designate.
§ 81.263. Nature of hearings.
Hearings will be public. The hearings are audio-recorded by the Board to preserve a record of the proceedings for use by the Board. Other recordings, including photographs, motion pictures, video recordings and audio recordings are prohibited, unless 24 hours prior notice is given to the Board's Secretary.
RECONSIDERATION § 81.271. Request.
A request for reconsideration of a decision may be made to the Board. The applicant shall show a change in circumstances since the application was filed, or other compelling reasons, sufficient to justify reconsideration. Dissatisfaction with the Board's decision is not grounds to request reconsideration. Meritorious requests may be addressed by the Board upon a public motion by any member. A request for reconsideration will be granted only upon a majority vote of the Board. If the matter to be reconsidered is the denial of a public hearing, another merit review vote will be taken immediately in accordance with § 81.231 (relating to listing for hearing).
§ 81.272. Notice.
If reconsideration is granted, notice will be made to interested parties by regular mail as set forth in § 81.226 (relating to use of application).
REPRESENTATION § 81.281. Appearance of applicant.
An applicant, if confined, may not appear before the Board, but may designate another person to appear for the applicant. An applicant, if not confined, shall appear personally at the public hearing unless excused by the Board for cause.
§ 81.282. Representation of applicant.
The applicant may be represented by privately retained legal counsel or another person designated by the applicant. If confined, the applicant may request representation from the Department of Corrections.
§ 81.283. Fees for representation.
Only attorneys may charge fees for the legal representation of an applicant. A nonattorney representative who has charged a fee for representation of an applicant may not thereafter make any presentation on behalf of applicants before the Board.
§ 81.284. Commonwealth attorney.
The attorney for the Commonwealth or a designee has the right, and is encouraged, to appear at the hearings to give the Commonwealth's opinion.
CONDUCT OF HEARINGS AND COMMUNICATIONS § 81.291. Call of calendar.
Applications will be called in the order of their listing on the calendar unless the Board directs otherwise. If there is no answer when a case is called, it will be passed temporarily and then called at the end of the list. If there is no answer when it is called subsequently, it will not be heard at that session. The application may be relisted for the next possible session if the applicant or the applicant's representative contacts the Secretary and requests a relisting.
§ 81.292. Advocacy.
(a) Noncapital cases. Fifteen minutes will be allowed for the entire presentation in support of an application, and 15 minutes will be allowed for the entire presentation in opposition to an application.
(b) Capital cases. In capital cases, a maximum of 30 minutes will be allowed for the entire presentation in support of an application, and a maximum of 30 minutes will be allowed for the entire presentation in opposition to an application.
§ 81.293. Witnesses.
The Board may request a person to appear at the hearing as a witness.
§ 81.294. Communications with the Board.
A person having information which might assist the Board in its consideration of a particular application may communicate with the Board in writing to the Secretary. Direct or indirect communications with the Board or a member thereof concerning the merits of a case, during the pendency of the application, shall be referred to the Secretary.
DISPOSITION § 81.301. Recommendation.
(a) An application for pardon or commutation of sentence may not be delivered to the Governor for a decision except on written recommendation of at least three members of the Board after public hearing. The recommendation will include a statement of the reasons therefor.
(b) In cases when the applicant is serving a sentence described in § 81.232 (relating to interview of the applicant), a recommendation and Warrant of Commutation that is presented to the Governor shall include a requirement that the applicant serve at least 1 year in a prerelease center prior to release on parole unless transfer of the applicant to a prerelease center is not appropriate due to a certified terminal illness.
(c) Recommendations made to the Governor for commutation of sentence will be conditioned as set forth in subsection (e). At the Board's discretion, other conditions may be included.
(d) Generally, recommendations for a pardon will not be conditional. Recommendations for a pardon may be made conditional by a majority vote by the Board. That vote will be taken after the vote that results in a favorable recommendation to the Governor.
(e) If it is the Board's desire that the commutation or pardon be conditional, any recommended Warrant of Commutation or Charter of Pardon presented to the Governor shall include the following language:
''Subsequent to this date, if it is determined, upon hearing by the Board of Pardons, that (name) has committed a probation or parole violation or has been convicted of a new criminal offense, this grant of clemency may be rendered null and void by myself or by my successors in office.''(f) When notified of a subsequent conviction or probation or parole violation, the Secretary will inform the Board. The Board will then decide, on a case-by-case basis, whether to hold a hearing regarding the suspected violation of the conditional pardon or commutation. If a hearing is held, a majority of the Board may recommend to the Governor that clemency be revoked.
§ 81.302. Notification of Board action.
Within 14 days following the public hearing, the applicant and the interested parties will be notified of the action by the Board.
§ 81.303. Announcement of action by Governor.
Public access to the decision of the Governor will be available 14 days after receipt by the Secretary of notice of the Governor's final disposition.
§ 81.304. Charter and warrant.
If the recommendation of the Board is approved by the Governor, the Secretary will prepare the proper Charter of Pardon or Warrant of Commutation for the signature of the Governor and for the attachment of the Seal of the Commonwealth and the attestation of the Secretary of the Commonwealth.
§ 81.305. Record maintenance.
(a) General rule. The records, documents and files maintained by the Board are confidential.
(b) Exceptions. The following records are public: monthly calendars, minutes of meetings, vote sheets of monthly sessions, completed applications and lists of actions taken by the Governor. The Board's written recommendation to the Governor will be made public only after the Governor has acted on an application.
[Pa.B. Doc. No. 96-1739. Filed for public inspection October 18, 1996, 9:00 a.m.]
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