RULES AND REGULATIONS
Title 37--LAW
BOARD OF PARDONS
[37 PA. CODE CH. 81]
General Provisions
[27 Pa.B. 1929] The Board of Pardons (Board), adopts a total revision of its rules contained in Chapter 81 (relating to Board of Pardons) under the authority of section 909 of The Administrative of Code 1929 (AC) (71 P. S. § 299(c)) and the PA. CONST. Art. IV.
Background
The purpose of these 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 AC and section 34.1(a) of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.34a(a)), known as the Pennsylvania Board of Probation and Parole Law 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 The regulations of the Board have not been updated since 1986 and have become outdated for various reasons.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 old regulations used the filing date of the previous application as the event from which time is calculated to determine eligibility for refiling and the new regulations use 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 in section 909(d) of the AC 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 AC, 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 AC, 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 Application (§ 81.232). Under section 909(e) of the AC, 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 old regulations allowed the applicant to request a rehearing. The new regulations 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 are granted by a majority vote of the Board.
Recommendation (§ 81.301). Under section 909(f) of the AC, this section requires that a 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 the recommendations for commutation made to the Governor are 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.
Comments
Notice of proposed rulemaking was published at 26 Pa.B. 4988 (October 19, 1996), and provided for a 30-day public comment period. The comment period ended November, 18, 1996.
Comments were received from Charles E. Mann of Langhorne, Pennsylvania, the Pennsylvania Coalition Against Domestic Violence, (PCADV) and the Independent Regulatory Review Commission (IRRC). These comments and the Board's responses are as follows:
Mr. Mann objected to a crime victim being a member of the Board and changing the vote for commutation to a unanimous vote instead of a majority vote. The composition of the Board and the votes required to recommend a commutation are set by the Pennsylvania Constitution, and are therefore, beyond the scope of this rulemaking.
IRRC commented that in proposed § 81.202 the references to the statutory definition of ''robbery'' is incorrect. The Board accepts this comment and has revised the references to 18 Pa.C.S. § 3701 (a)(1)(i), (ii) or (iii).
IRRC commented that in proposed § 81.221 (relating to forms) the words ''in forma pauperis'' should be replaced with the words ''without payment of costs'' and that the definition of ''form in forma pauperis'' be deleted from § 81.202. The Board accepts these comments and has revised the sections accordingly.
IRRC commented that in proposed § 81.222(b) (relating to filing), the words ''passport type photographs'' be replaced by a description of the dimensions of photographs that the Board will accept. The Board disagrees with this suggestion and believes that the expression ''passport type photographs'' is universally understood and has never resulted in questions from applicants as to what photographs will be accepted. The Board chooses not to change this wording.
The PCADV and IRRC commented on proposed § 81.223 (relating to limitations on filing). The proposed section modified the starting point of the waiting period the Board requires between an unsuccessful application and the next application. The PCADV believes that this section should not be amended thereby retaining the waiting period starting from the date of original filing. IRRC suggests that the Board review the proposed amendment and provide justification for an amendment to the waiting period. The Board proposed this change because under the existing regulations in many instances, an applicant is eligible to file another application immediately after the Governor or Board has rendered an adverse decision. The Board or Governor being asked to decide the clemency issue so soon after making a decision is redundant because circumstances have not changed since the case was last decided.
If circumstances in a person's life change dramatically, they have the ability to request that the Board grant permission to file an application earlier than would normally be permitted § 81.224 (relating to request for early filing) or to request reconsideration (§ 81.271 (relating to request).
When discussing this issue, the Board concluded that § 81.223 (b) is not consistent with subsection (a) and should be changed to read: ''If an application receives two consecutive adverse decisions, an application may not be filed before the expiration of 24 months from the last adverse decision.'' The Board does not desire to amend this section in any other manner.
IRRC commented on proposed § 81.226 (relating to use of application) and noted that the section does not have provisions for applications that are denied. IRRC suggests that the Board add provisions describing the point in the process when an application is considered concluded and when and how an applicant will be notified of the Board's decision to deny the case a public hearing. The Board agrees that IRRC's recommendation is appropriate and has amended the section as suggested. IRRC further suggested that in subsection (c), now (d), the word ''accepted'' be replaced by the word ''submitted.'' The Board agrees with this suggestion and has made the change.
IRRC commented on proposed § 81.228 (relating to subsequent use by applicant) suggesting that the Board specify what the costs of reproduction are or provide a cross reference as to where the cost may be found. The Board accepts this suggestion and has added language explaining that the cost of reproduction is set by Board resolution and that resolutions are available at the Board's office.
The PCADV commented on proposed § 81.231 (relating to listing for hearing) and objects to the provision that requires that applications for commutation of death sentences be filed with the Board within 10 days of the Governor signing an execution warrant. This subsection complies with recent statutory changes made by the Legislature as found in section 909(c) of the AC, and must remain part of the Board's regulations. IRRC also commented on this proposed section by pointing out that in subsection (b) the language was not identical to the language in the statute and suggested that the words ''Governor's issuance of a warrant specifying a week for execution'' replace the words ''Governor's issuance of an execution warrant.'' The Board has changed the wording as suggested by IRRC.
The PCADV and IRRC commented on proposed § 81.232 (relating to interview of the applicant). Both were concerned that the applicant's attorney or representative could be excluded from the interview. It was not the Board's intention to exclude attorneys or representatives, but security and safety concerns are paramount. In response to the concerns raised, the Board has deleted the language concerning security risks and the Board's discretion in admitting attorneys or representatives to the interview and replaced it with a requirement that anyone attending an interview is subject to the rules of the Department of Corrections concerning entry into a prison by members of the public.
IRRC commented on proposed § 81.233 (relating to publication) noting that the section is silent regarding how the Board provides notice in a capital case and recommends clarification of the section to provide guidance in this area. The Board accepts this recommendation and has added language to the regulation explaining notice in capital cases and guarantees that at least 24 hours notice will be given for hearings in capital cases under all circumstances.
IRRC commented on proposed § 81.242 (relating to reinstatement) noting that is was vague. The Board agrees with the comments and has decided to delete the provision.
IRRC commented that in proposed § 81.261 (relating to time) the word ''excluding'' should be changed to ''except'' and that the word ''provided'' should be replaced by the phrase ''determined by the Board.'' Further noted by IRRC was the fact that the notice for public hearing must conform with the Sunshine Act (65 P. S. §§ 271--286) which requires at least 24-hour notice. IRRC suggested that a sentence be added stating that notice of public hearings will be in accordance with the Sunshine Act. The Board agrees with the suggestions and has revised the section accordingly.
The PCADV and IRRC commented on proposed § 81.271 (relating to request). Both suggested that a 90-day time limit for the Board to respond to a request for reconsideration be added. The Board does not object to a limitation on it's response to a request for reconsideration because these requests are always handled promptly. The Board did identify a problem with specifying 90 days as the time period. Because the Board does not meet in the months of July and August, it is possible that the Board could not respond within 90 days. The Board has amended the section to provide that the Board will take action on requests for reconsideration at the next possible regularly scheduled Board meeting. IRRC also suggested that the section address the question of whether Board action on a request for reconsideration will affect the date of a final adverse decision. The Board has clarified this issue by adding language to the regulation stating that the date of the original decision of the Board, if adverse, will be used in calculating the waiting period for another application.
IRRC commented on proposed § 81.281 (relating to appearance of applicant) pointing out that some applicants who are confined appear before the Board at an interview therefore the first sentence should specify that confined applicants may not appear at the public hearing. IRRC was also concerned about the clarity of the last provision of this section which used the phrase ''for cause'' when describing that applicants who are not confined are required to appear for the hearing unless excused by the Board ''for cause.'' IRRC suggests that the phrase ''for cause'' be deleted. The Board accepts these comments and has revised the section accordingly.
IRRC commented that proposed § 81.283 (relating to fees for representation) should be deleted entirely because the subject matter is not the responsibility of the Board. The Board agrees and has deleted this provision from the final-form regulations.
IRRC commented on proposed § 81.293 (relating to witness) and suggested that the words ''or subpoena'' be added so that the section would read ''The Board may request or subpoena a person to appear at the hearing as a witness.'' The Board accepts this comment and has revised the section accordingly.
IRRC commented that proposed § 81.294 (relating to communication with the Board) lacks clarity because it is lengthy. IRRC suggests the section be amended to ''A person who wants to provide information to the Board regarding the merits of an application shall communicate or correspond with the Secretary.'' The Board accepts this comment and has amended the section in accordance with IRRC's suggestion.
The PCADV and IRRC had numerous comments on proposed § 81.301 (relating to recommendations). The PCADV commented that the Board's ability to place conditions on recommendations (subsection (c)) is vague and overly broad. The PCADV states that the section as written lacks basic requirements of due process. The PCADV further commented that a recommendation to the Governor to revoke clemency previously granted must happen only after a hearing. The Board notes that the appellate courts in this Commonwealth have recognized the Governor's broad discretion in making grants of clemency conditional with the accompanying ability to revoke clemency. Granting clemency is not a legal proceeding and due process requirements are not applicable to this process. Concerning the PCADV's comment about holding a hearing, the conditional language in subsection (e) states in part that ''if it is determined upon hearing by the Board.'' Subsection (f) provides that when notified of a possible breach of a condition that the Board will discuss the situation and decide if a hearing is warranted. Only if the Board decides that the violation is serious enough to warrant a hearing could a recommendation be made to the Governor to revoke clemency.
IRRC commented that subsection (a) should be amended to reflect that the Board can hear applications for remission of fines and forfeitures and granting of reprieves. IRRC further commented that subsections (c) and (d) were vague and inconsistent and recommended that the first and last sentence of subsection (d) be deleted. IRRC also commented that in subsection (a) the words ''reasons therefor'' be changed to ''reasons supporting the recommendation.'' IRRC also suggested that subsection (f) lacks clarity because the conjunction ''or'' is used without a comma in the first sentence.
In consideration of all the comments on this section, the Board has made the following changes:
The phrase ''or for remission of fines and forfeitures and the granting of reprieves'' has been added in subsection (a). The phrase ''with reasons supporting the recommendation'' has been added to subsection (a).
Subsections (c) and (d) have been amended as follows:
(c) Recommendations made to the Governor for commutation of sentence will be conditioned as set forth in subsection (e).
(d) Recommendations for a pardon may be made conditional by a majority vote by the Board.
The first sentence of subsection (f) has been changed to read, ''when notified of a subsequent criminal offense conviction, or a probation or parole violation, the Secretary will inform the Board.''
IRRC commented on proposed § 81.303 (relating to charter and warrant) and suggested that this section be deleted because the action of the Governor could not be withheld from the public for 14 days. The intent of this section was to allow sufficient time for the applicants to be notified of the Governor's decision before the information became public. The Board accepts the comment and has deleted this provision.
Affected Organizations and Individuals
The 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 amendments for the Commonwealth, local government, the private sector or the general public.
Effective Date
The amendments will become effective upon publication in the Pennsylvania Bulletin.
Sunset Date
There is no sunset date for these regulations.
Contact Person
Further information is available by contacting the Board of Pardons, Nelson R. Zullinger, Secretary, 333 Market Street, 15th Floor, Harrisburg, PA 17126-0333.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5 (a)), on October 19, 1996, the Board submitted a copy of the notice of proposed rulemaking published at 26 Pa.B 4988 to IRRC and to the Chairpersons of the House and Senate Judiciary Committees. In compliance with section 5 (b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received.
In preparing these final-form regulations, the Board has considered comments received from IRRC and the public.
The final-form regulations were approved by the House Judiciary Committee on March 18, 1997, by IRRC on March 20, 1997, and deemed approved by the Senate Judiciary Committee on March 26, 1997.
Findings
The Board finds that:
(1) Public notice of intention to amend the administrative regulations amended by this order, has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) The amendment of the regulations of the Board in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statutes.
Order
The Board, acting under authorizing statutes, orders that:
(a) The regulations of the Board, 37 Pa. Code Chapter 81, are amended by:
(i) Deleting §§ 81.1, 81.2, 81.11, 81.12, 81.21--81.29, 81.31--81.33, 81.41, 81.42, 81.51, 81.52, 81.61--81.65, 81.71, 81.72, 81.81--81.84, 81.91--81.94 and 81.101--81.105;
(ii) Adding §§ 81.201, 81.211, 81.212, 81.222, 81.224, 81.225, 81.227, 81.241, 81.251, 81.252, 81.262, 81.263, 81.272, 81.282, 81.291, 81.292 and 81.302 to read as set forth at 26 Pa.B. 4988; and
(iii) Adding §§ 81.202, 81.221, 81.223, 81.226, 81.228, 81.231--81.233, 81.261, 81.271, 81.281, 81.283, 81.293, 81.294, 81.301, 81.303 and 81.304 to read as set forth in Annex A.
(Editor's Note: The proposal to add §§ 81.242, 81.284 and 81.305, included in the proposal at 26 Pa.B. 4988, has been withdrawn by the Board.)
(b) The Secretary shall submit this order, 26 Pa.B. 4988 and Annex A to the Offices of the Attorney General and General Counsel for approval as required by law.
(c) The Secretary shall certify this order, 26 Pa.B. 4988 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication of the Pennsylvania Bulletin.
NELSON R. ZELLINGER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 1705 (April 5, 1997).)
Fiscal Note: Fiscal Note 56-1 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 37. LAW
PART III. AGENCIES AND OFFICES
Subpart A. BOARD OF PARDONS
CHAPTER 81. BOARD OF PARDONS § 81.1. (Reserved).
§ 81.2. (Reserved).
§ 81.11. (Reserved).
§ 81.12. (Reserved).
§§ 81.21--81.29. (Reserved).
§§ 81.31--81.33. (Reserved).
§ 81.41. (Reserved).
§ 81.42. (Reserved).
§ 81.51. (Reserved).
§ 81.52. (Reserved).
§§ 81.61--81.65. (Reserved).
§ 81.71. (Reserved).
§ 81.72. (Reserved).
§§ 81.81--81.84. (Reserved).
§§ 81.91--81.94. (Reserved).
§§ 81.101--81.105. (Reserved).
GENERAL PROVISIONS § 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 public 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--Includes the following:
(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)(1)(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--One of the following:
(i) The denial of a public hearing by the Board.
(ii) The Board not recommending an application to the Governor.
(iii) The Governor denying an application.
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 at a public hearing.
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 without payment of costs shall be obtained from the Secretary and filed in place of the fee.
§ 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 application receives two consecutive adverse decisions, an application may not be filed before the expiration of 24 months from the last adverse decision.
§ 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) When the reports and opinions have been received, the members of the Board will review the case and a merit review vote will be conducted at a public hearing. If a public hearing is denied, the applicant will be notified of the final adverse decision in writing by the Secretary.
(c) If a public 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, Department of Corrections, Board of Probation and Parole and those whose whereabouts are otherwise known.
(d) Victims will be notified of their opportunity to offer prior comment regarding an application that has been granted a public hearing. Comment may be submitted 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 a public hearing pertaining to their case. Written communications with the Board will be confidential.
§ 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. The cost of reproduction will be determined by Board resolution. Board resolutions are available for public inspection at the Board's office.
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 public 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 a warrant specifying a week for execution.
§ 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 will be permitted to attend. Persons attending an interview are subject to the rules of the Department of Corrections concerning entry into a prison by members of the public. The interview shall 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 public hearing at which the application will be heard.
(b) Except in capital cases, the notice described in subsection (a) will be made at least 1 week prior to the public hearing on the application. The notice will be published in a newspaper of general circulation in the county where the crimes were committed. If the Board meets in emergency session to consider an application in a capital case, 1 week prior notice may be impossible. If time permits, notice of public hearings in capital cases will be made as provided in subsection (a). Under all circumstances, at least 24 hour notice will be given.
HEARINGS § 81.261. Time.
The Board will meet in regular public hearings each month except the months of January, July and August except as may be otherwise determined by the Board. Public hearings may be canceled at the discretion of the Board. Notice of public hearings will be published in accordance with the Sunshine Act (65 P. S. §§ 271--286).
RECONSIDERATION § 81.271. Request.
(a) A request for reconsideration of any 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.
(b) The Board will take action on requests for reconsideration at the next possible public hearing. 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). The date of the original final adverse decision of the Board will be used in calculating eligibility for refiling.
REPRESENTATION § 81.281. Appearance of applicant.
An applicant, if confined, may not appear at the public hearing, 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.
§ 81.283. Commonwealth attorney.
The attorney for the Commonwealth or a designee has the right, and is encouraged, to appear at the public hearings to offer the Commonwealth's opinion.
CONDUCT OF HEARINGS AND COMMUNICATIONS § 81.293. Witnesses.
The Board may request or subpoena a person to appear at the public hearing as a witness.
§ 81.294. Communications with the Board.
A person who wants to provide information to the Board regarding the merits of an application shall communicate or correspond with the Secretary.
DISPOSITION § 81.301. Recommendation.
(a) An application for pardon or for remission of fines and forfeitures, and the granting of reprieves, 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 supporting the recommendation.
(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).
(d) Recommendations for a pardon may be made conditional by a majority vote by the Board.
(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 public 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 criminal offense 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 public hearing regarding the suspected violation of the conditional pardon or commutation. After public hearing, a majority of the Board may recommend to the Governor that clemency be revoked.
§ 81.303. 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.
§ 81.804. Record maintenance.
(a) Records, documents and files maintained by the Board are confidential except as provided in subsection (b).
(b) The following records are public: monthly calendars, minutes of public hearings, vote sheets of public hearings, 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. 97-589. Filed for public inspection April 18, 1997, 9:00 a.m.]
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