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Clemency shift would bypass Arizona governor

The state Board of Executive Clemency could be granted the power to commute the sentences of any of Arizona’s more than 40,000 prisoners without the governor’s approval, which would save the state an estimated $22,000 to $28,000 per released inmate, per year. (Photo by Ryan Cook/RJ Cook Photography)

The state Board of Executive Clemency could be granted the power to commute the sentences of any of Arizona’s more than 40,000 prisoners without the governor’s approval, which would save the state an estimated $22,000 to $28,000 per released inmate, per year. (Photo by Ryan Cook/RJ Cook Photography)

State budget problems are prompting lawmakers to reconsider a lot of things, but the issue of crime and punishment has been too hot to touch, even if doing so would save money.

HCR2025, which would empower the state Board of Executive Clemency to commute the sentences of any of Arizona’s approximately 40,500 prisoners without the governor’s approval, could streamline the release of prisoners, each of whom costs the state $22,000 to $28,000 a year to incarcerate.

And at first glance, the supporters of HCR2025 look like unusual allies, thus giving the impression that the referendum stands a fighting chance.

The measure’s prime sponsor is Rep. Cecil Ash, a moderate Mesa Republican and former criminal defense attorney. Others listed as co-sponsors include Democrat Reps. Tom Chabin and Richard Miranda, and even hard-line conservative Republican Sen. Ron Gould.

But, to perhaps the dismay of supporters of the referendum, the appearance of Gould’s name is a mistake, the result of a clerical error. Gould, in fact, doesn’t approve of the legislation, which he fears will leave serious questions about justice in the hands of people he deems to be “unelected bureaucrats.”

“I’m not interested in reducing sentences,” Gould said, noting the recent arrest in his district of 20-year-old Dustin Colpitts, a released sex offender who is again behind bars, accused of beating to death his girlfriend’s 13-month-old child. “Whether they are sorry or not for their crimes, they need to be punished.”

Colpitts, according to the Kingman Police Department, was not released early from prison, and, in fact, served a full sentence of six years. But his case presents a fairly clear display of the political risks associated with the handling of felons.

The spotlight on clemency was raised again last year when Gov. Jan Brewer declined to reduce the sentence of 75-year-old William Macumber, who in 1974 was convicted of a 1962 double homicide in Scottsdale.

In a unanimous decision, the Board of Executive Clemency voted to recommend Macumber be credited with his time already served and released from prison. The decision followed a campaign by former federal public defender Thomas O’Toole.

O’Toole, who later became a Maricopa County Superior Court judge, has repeatedly claimed that Ernie Valenzuela, a former client he represented on a separate murder charge, confessed to the murders attributed to Macumber. However, Valenzuela’s testimony was never admitted into a court of law, and he was murdered in prison in 1973.

To Ash, a former Maricopa County public defender, the Macumber case is typical of the degradation of the American system of clemency since the sinking of Massachusetts Governor Michael Dukakis’ 1988 bid for president.

Supporters of the candidacy of then-Vice President George H. W. Bush seized upon Dukakis’ pledged support for a weekend furlough program for Massachusetts inmates. One convicted murderer, Willie Horton, escaped while on the furlough and later committed a vicious rape and assault.

“It (clemency) used to be the last resort for not letting the government run somebody over,” said Ash, adding that the Horton debacle left governors “extremely reluctant” to considerclemency.

Ash said his personal experiences lead him to believe that the corrections system can, at times, be “wasteful and abusive” by imprisoning people unnecessarily or for far too long.

Even after plea bargains, strict sentencing laws can be applied to the most benign of criminals, he said, such as common thieves sentenced to eight years in prison for stealing items like cigarettes or bicycles.

“My experience was that you saw it regularly,” he said. “You saw the waste of government resources, and you saw the waste of peoples’ lives. We need to incarcerate who we’re afraid of, not who we are mad at.”

Former Arizona Attorney General Jack LaSota was appointed to the Board of Executive Clemency in May of 2010, and served as pro-tem criminal judge for the Maricopa County Superior Court for more than 10 years.

In his short experience with the board, he said, he was immediately struck by the incredible case load of parole violations stemming from Arizona’s “truth in sentencing” laws, and the number of appeals for commutations.

“Every week I see someone who I think has been sentenced excessively,” said LaSota, who readily admits to being the “softest” on the board.

Despite his tendency towards mercy, LaSota said he is leery of removing direct executive supremacy from the clemency equation, even though he said a “purer objective process” can be achieved without the Governor’s Office.

“It’s occasionally frustrating when we make a recommendation and it is turned down, but on the other hand, [Brewer] is the final authority and if something bad happens she gets all of the blame.”

It is precisely that what-if question that has Republican Rep. Eddie Farnsworth opposing Ash’s proposal, which is also backed by a handful of Democrats and several Republicans.

Farnsworth, chairman of the House Judiciary Committee, the first committee likely to be assigned the referendum, also doesn’t favor leaving clemency in the hands of political appointees.

On the prospect of political concerns interfering with opportunities to correct injustices, or grant mercy, Farnsworth is unmoved.

“Anybody who is in a position of authority has to make a decision that they are going to do what they believe is right or they are going to succumb to the politics,” he said. “Every one of us has to face up to that. I don’t know how to alleviate that other than have the constituents hold their elected officials accountable.”

The board can handle as many as 90 clemency applications a month, although budget-induced backups can leave individual prisoners waiting for years to have their requests heard, said Duane Belcher, who serves a dual role as board member and executive director.

The appeals are typically addressed once a month, and prisoners make their pleas via conference calls. Most appeals are rejected, although some can prove to be emotionally challenging for board members, he said.

“If anybody is sitting in prison for an excessive amount of time, that becomes an issue for me, as a board member, and for anybody as a board member,” Belcher said. “You can’t help but feel as human being when you have all the circumstances and you have all of the public commentary.”

While Brewer’s Macumber decision drew heat, she boasts a higher commutation rate than governors Janet Napolitano, a Democrat, and Jane Hull, a Republican. Since becoming governor in 2009, Brewer has agreed with the Board of Executive Clemency’s recommendations and granted commutations at a rate of about 70 percent — almost three times the percentages of her two predecessors.

Still, since 1999, only 85 of 394 inmates recommended by the board to receive clemency have been granted a reduced sentence.

The Governor’s Office has not commented on Ash’s proposed referendum, which he said he hopes will be viewed as not an attack on executive authority, but a relief from one the many burdens faced by a governor.

As a referendum, HCR2025 doesn’t require the governor’s signature to appear on the 2012 ballot. But, for the moment, Ash’s measure has to clear more immediate hurdles, as it may not survive in either the House or Senate judiciary committee.

“I’m hopeful I’d be allowed to make my case for all of the bills I am running,” he said.

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