EXECUTIVE CLEMENCY PROCESS

Summary

The Governor's executive clemency authority is derived from Section 14 of Article V of the Michigan Constitution of 1963, which provides:

The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefore.

A commutation is defined as the reduction of an individual's sentence to a specified term such that the Michigan Parole and Commutation Board is given the jurisdiction and authority to determine an individual's parole eligibility. A commutation does not nullify the underlying conviction(s). In contrast, a pardon erases a conviction from an individual's record. The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it "releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." People v. Van Heck, 252 Mich.App. 207, 216; 651 N.W.2d 174, 179 (2002). A pardon is an extraordinary form of relief for someone convicted of a crime and is extremely rare.

As noted in the Constitution, the Governor's clemency authority is "subject to procedures and regulations prescribed by law." These procedures and regulations are contained in Sections 43 and 44 of the Corrections Code of 1953, 1953 PA 232, MCL 791.243 and 791.244, and in Executive Order 2009-5 (http://www.michigan.gov/gov/0,1607,7-168-21975-208705--,00.html), through which the Governor created the Michigan Parole and Commutation Board. Under Section 43 of the Corrections Code, all applications for pardons and commutations must be filed with the Michigan Parole and Commutation Board ("Board") using forms provided by the Board and must include the information, records, and documents required by the Board. Application forms may be obtained online from the Michigan Department of Corrections at the following weblink:

http://www.michigan.gov/documents/SI_letter_and_app_for_pardon_after_discharge_122477_7.pdf  

Section 44 of the Corrections Code sets forth a detailed framework that must be followed by the Board in considering all applications for pardons and commutations, including those initiated by the Board itself. For example, within 60 days of initiating or receiving such an application, the Board must conduct an initial review to determine whether the application for a pardon or commutation has merit. The Executive Clemency Advisory Council, created under Executive Order 2007-2, assists the Board with this review process. The specific steps followed by both the Council and the Board in accordance with this statutory framework are described below.

Executive Clemency Advisory Council Process

The Executive Clemency Advisory Council consists of 7 volunteer members representing law enforcement, crime victims or their families, and the general public. Council members are appointed by and serve at the pleasure of the Governor. The Council neither independently investigates nor determines which cases to review, but rather acts on cases pursuant to the request of the Governor or the Board. The Council serves only as an advisory body to the Board; the Board has the exclusive statutory duty to transmit its formal recommendation to the Governor as to the merit of an application.

A clemency review may be initiated by an Application for Pardon or Commutation of Sentence submitted by a prisoner or by someone on his or her behalf, or by an Application for Pardon after Parole or Discharge submitted by an individual who has completed his or her sentence. Any clemency reviews other than by application must be initiated by the Board. If denied, an application may be resubmitted two years after the date on which the Board received the previously denied application. Unless there has been a substantial change in circumstances, an application resubmitted before that time will be returned without action. The Board's decision to initiate a commutation review is within the Board's discretion and may include, but not be limited to, circumstances in which a prisoner has a deteriorating and/or terminal medical condition from which he or she is not likely to recover.

When the Board initiates a clemency file review and preliminarily determines the need for the Council's assistance, the Board will refer the case to the Council. Only those cases which contain compelling information warranting clemency consideration are referred to the Council. All other cases are forwarded to each Board member for his or her individual review. Each Board member will thereafter recommend either that the application should be forwarded to the Governor with a determination of no merit, or that the Board take a preliminary interest in a finding of merit on the application. Should a majority of the 15-member Board take a preliminary interest in a merit finding, the application is referred to the Council for its review and advice.

The Council generally meets monthly to review individual cases and to determine for each case the nature of the Council's recommendation to the Board. These recommendations are made by a majority of the total number of members on the Council. In order to hold a meeting and vote on cases, a quorum of at least four Council members must be present. In advance of each meeting, Council members are provided with information on each file for their review in preparation for the Council's discussion, including documentation summarizing the parole eligibility reports, medical status reports and psychological evaluations that are requested on each file under consideration. At least four members must vote for merit on a case in order for the Council to forward a merit recommendation to the Board. The Council reviews approximately 20 to 25 cases at each meeting. Following its consideration and disposition of those cases before it, the Council forwards the cases to the Board for further action.

Parole and Commutation Board Process

All clemency applications reviewed by the Council are ultimately forwarded to the Parole and Commutation Board for disposition. Those cases that are determined by the Council to have no merit are forwarded to each individual Board member to vote on a recommendation to send to the Governor. Those prisoner files which have been documented by Bureau of Health Care Services as involving deteriorating and/or terminal medical conditions are reviewed for further consideration.

On those cases that are forwarded by the Council to the Board with recommendation of merit, the Board staff will schedule an interview of the applicant with a Board member. Following that interview, the Board member will complete a Summary of the Interview and the Board staff will verify that all relevant requested documentation is included in the file. Thereafter, the file will be scheduled for review in an executive meeting of the Board as a whole, which meetings generally occur bi-weekly.

Following the Board's consideration of a case at an executive meeting, the Board will vote to assign the case one of the following recommendations: no merit; preliminary interest pending information; or preliminary interest for public hearing. Those clemency cases initiated by the application of a prisoner or petitioner and deemed by the Board to have no merit are sent by the Board to the Governor with that recommendation. Those clemency cases initiated by the Board and deemed by the Board to have no merit are closed pending review at the next regularly scheduled review date. Cases given a preliminary interest pending information vote by the Board are returned to an executive meeting upon receipt of the pending information. Commutation cases given a preliminary interest for public hearing vote are referred to Board staff for further processing, as described in detail below. Pardon cases given a preliminary interest vote by the Board are referred to staff in the Department of Corrections' Field Services Administration for further investigation. Upon completion of that investigation, the FSA staff will prepare and submit a report to the Board. The Board will then vote on whether to send the pardon case to a public hearing.

Public Hearing Process

The Parole and Commutation Board prioritizes medical cases for purposes of scheduling the public hearing docket and the Board makes every effort to expedite those cases involving prisoners with terminally ill and/or medically deteriorating conditions.

Following the Board's referral of a case to a public hearing, the Board must, by statute, follow certain notification and scheduling requirements. First, the Board must send out notices of the potential public hearing to the sentencing or successor sentencing judge and prosecutor on the case, allowing 30 days for their comments and/or objections. At the expiration of that 30-day period, unless the Board decides to remove the case from the public hearing process based on the comments received, the Board will then schedule the case for a public hearing with a date no less than 30 days hence. In doing so, the Board must then provide 30 days' notice of the public hearing to the same judge and prosecutor, the Governor, the Attorney General, all registered victims, and the prisoner/petitioner,. The Board will also publish notice of the public hearing on the MDOC website. The Board may receive and review information and comments submitted by crime victims. During that 30 day period, the Board will also commence a parole placement investigation on commutation cases, as well as provide the Attorney General with file materials for review and in preparation for the public hearing.

At the public hearing, the Assistant Attorney General, the Board's Chairperson, and any other members of the Board in attendance may question the prisoner or petitioner applicant on all relevant issues. Members of the public, as well as any victim(s) or victim(s)' representative may testify in support of or opposition to the applicant's clemency. The public hearing is recorded and a transcript of the proceeding is completed after the hearing, with a copy submitted to the Attorney General. The case is then referred back to the Board for a final executive meeting at which the Board will vote on a recommendation to the Governor, taking into account all information received during the process and the public hearing. After that vote, the Board's recommendation and packet, including the public hearing transcript and other pertinent documents, are delivered to the Office of the Governor.

Final Disposition Process

The Governor and her legal staff will review the application materials and the recommendations of the Council and the Board to determine whether executive clemency is warranted. The applicant and the Board are notified when a final determination is made.

 Should the Governor grant a pardon request, the Governor's Office will issue the appropriate pardon documents, file the pardon with the Secretary of State, and notify the applicant. Should the Governor grant a commutation request, thus commuting the prisoner's sentence to a term of years already served, the Board will assume jurisdiction over the case and vote on a parole. All action votes by the Board in a commutation case must be by majority vote of the 15-member Board. Should the Board by majority vote grant a parole on a commutation case, the parole term would be for a period of four years. Moreover, such a parole release will occur only after a required 28-day notice period, during which the Board will notify the sentencing or successor sentencing judge, prosecutor, and any registered victim(s). However, in the case of a terminally ill prisoner only, and so long as there are no registered victims on file, the Board may seek the consent of the prosecutor and the judge to a waiver of both the initial 30-day notice (for comments/objections) and this 28-day notice of parole release.