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PA Bulletin, Doc. No. 98-849

RULES AND REGULATIONS

Title 37--LAW

BOARD OF PARDONS

[37 PA. CODE CH. 81]

Recommendation for Clemency

[28 Pa.B. 2500]

   The Board of Pardons (Board) hereby amends § 81.301 (relating to recommendation) to read as set forth in Annex A. The section is amended under the Board's authority in section 909(c) of The Administrative Code of 1929 (71 P. S. § 299(c)).

Background

   A proposed amendment to PA. CONST., art. IV, § 9 changing provisions relating to pardons, commutations and the Board was approved by a majority of the qualified electors of this Commonwealth at an election held on November 4, 1997. The section of the Board regulations affected by this amendment to the Constitution is § 81.301. This section has been amended to reflect that a unanimous vote of the Board is required to send a recommendation for clemency to the Governor in cases when the person involved is under sentence of death or life imprisonment. The current § 81.301(a) calls for a majority vote of the members of the Board to recommend clemency to the Governor in these cases.

Amendment

   Section 81.301 is amended to reflect the recent amendment to PA. CONST., art. IV § 9 which requires an unanimous vote of the Board to recommend clemency to the Governor when the applicant is under sentence of death or life imprisonment.

Notice

   Notice of proposed rulemaking has been omitted under section 204(3) of the act of July 31, 1968 (P. L. 769, No. 204) (45 P. S. § 1204(3)) (CDL), which specifies that a regulation may be adopted without notice of proposed rulemaking if proposed rulemaking procedures are in the circumstances impracticable, unnecessary or contrary to the public interest. The proposed rulemaking procedures are unnecessary, since the rulemaking simply incorporates the recent amendments to the Constitution of Pennsylvania regarding the Board.

Cost and Paperwork Requirements

   There is no fiscal impact or additional paperwork requirements associated with the amendment for the Commonwealth, local government, the private sector or the general public.

Regulatory Review

   Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on April 13, 1998, the Board submitted a copy of this amendment with proposed rulemaking omitted to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Judiciary Committees. On the same date, the final-omitted regulation was submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506).

   In accordance with section 5(c) of the Regulatory Review Act, this final-omitted regulation was deemed approved by the House and Senate Committees on May 3, 1998. IRRC approved the final-omitted regulation on May 7, 1998.

Contact Person

   For further information regarding the amendment, contact Nelson R. Zullinger, Secretary, Board of Pardons, 333 Market Street, 15th Floor, Harrisburg, PA 17126. (717) 787-2596

Finding

   The Board finds that:

   (1)  The proposed rulemaking procedures in sections 201 and 202 of CDL (45 P. S. §§ 1201 and 1202), are unnecessary, since the final-form regulation simply incorporates provisions from the Constitution regarding the Board and public comments will have no impact upon the final-form regulation.

   (2)  That public notice of intention to adopt the final-form regulation has been omitted under section 204 of the CDL.

Order

   The Board orders that:

   (a)  The regulations of the Board, 37 Pa. Code Chapter 81, are amended by amending § 81.303 to read as set forth in Annex A.

   (b)  The Secretary of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.

   (3)  The Secretary of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (4)  This order shall take effect upon publication in the Pennsylvania Bulletin.

NELSON R. ZULLINGER,   
Secretary

   Fiscal Note:  56-2. No fiscal impact; (8) recommends adoption.

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 28 Pa. B. 2463 (May 23, 1998).)

Annex A

TITLE 37  LAW

PART III.  AGENCIES AND OFFICES

CHAPTER 81.  BOARD OF PARDONS

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, shall be approved by the Board at a public hearing by a majority vote of the members, prior to delivery of the written recommendation to the Governor for a decision. An application for a pardon or commutation of a death or life imprisonment sentence must be approved at a public hearing by a unanimous vote of the members, prior to delivery of the written recommendation to the Governor for a decision.

   (b)  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 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.

[Pa.B. Doc. No. 98-849. Filed for public inspection May 29, 1998, 9:00 a.m.]


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