Tag: board of executive clemency

Arizona politics not only kept courts busy in 2012, but led to a landmark case in June when the U.S. Supreme Court gutted the state’s most prominent immigration policy.

The court decided it will take up one more Arizona immigration-related case in its current term, but passed on an Arizona case involving gay marriage. Federal judges also prevented two Arizona abortion laws from taking effect while lawsuits challenging them are litigated.

Maricopa County Sheriff Joe Arpaio found himself in court — again, but this time it was the federal government suing him and alleging the law enforcement agency had a culture of racial profiling. Arpaio also found himself at the center of the storm in the disbarment of former Maricopa County Attorney Andrew Thomas.

SB1070

Both sides of the immigration debate declared victory as the U.S. Supreme Court on June 25 gutted SB1070, the premiere law of Arizona’s immigration policy.

The court let stand a provision requiring police officers to check the immigration status of people they suspect to be in the country illegally. But the Obama administration effectively made it useless with its enforcement policy of deporting only people who have criminal records, who recently crossed the border or who have been deported before.

Gov. Jan Brewer, whose political career skyrocketed after she approved the legislation in April 2010, said, “While we are grateful for this legal victory, today is an opportunity to reflect on our journey and focus upon the true task ahead: the implementation and enforcement of this law in an even-handed manner that lives up to our highest ideals as American citizens.”

The court struck down provisions that would have made it a state crime for immigrants who lack federal documentation to seek work. Also struck down was a provision that would have allowed police to make warrantless arrests of people suspected of committing crimes that would allow them to be removed from the country.

Because of those three deleted provisions and the Obama enforcement policy, police officers are unable to do anything with illegal immigrants except turn them over to the federal government, which won’t act unless a suspect meets one of the standards for deportation.

Gay marriage

As the Supreme Court’s new term began in October, there was potential for the state to be part of another landmark case, but the court declined to hear an Arizona case involving gay marriage and instead took ones from New York and California. The Arizona case, Brewer v. Diaz, was one of 10 the court pondered reviewing. It involves a 2009 ban on health benefits for domestic partners of state employees. Since the court didn’t accept the case, the 9th U.S. Circuit Court of Appeals ruling that the ban discriminates against gay and lesbian state employees will stand.

The court did accept Arizona v. Inter Tribal Council, a case to review the constitutionality of a 2004 ballot measure that requires proof of citizenship to register to vote.

Arizona State University professor Paul Bender said the question in the case is narrow and shouldn’t have much impact nationwide. The court will decide whether to overturn a 9th U.S. Circuit Court decision that the National Voter Registration Act supersedes Arizona’s law. The federal law doesn’t require voters to prove their identities, but they must swear under penalty of perjury they are citizens.

Arizona Attorney General Tom Horne, who will argue the case before the court, said illegal immigrants will be able to vote if the law is struck down.

Abortion

Two Arizona abortion laws enacted in 2012 were challenged in court.  Both are on hold as they move through appeals.

The 9th Circuit fast-tracked the case challenging Arizona’s 20-week ban on abortion, HB2036. So a ruling is expected in early 2013.

The state successfully defended the law in U.S. District Court, but the three Arizona doctors who brought the suit challenging it persuaded the appellate court to stop the law from taking effect until the case is resolved.

The law moves the timeline on when the state can restrict abortions. Under Roe v. Wade that timeline is at viability, when a baby can survive outside the womb, or about 24 weeks. Arizona’s law is based on the premise that a baby in the womb can feel pain after 20 weeks.

The pro-life movement has been waiting for a case to challenge Roe, and some believe this is it. Although Arizona wasn’t the first to pass such a law, it was the first law to be challenged, mostly because pro-choice proponents elsewhere couldn’t find doctors to be plaintiffs in a lawsuit and reveal they provided abortions.

In upholding the law, Judge James Teilborg of U.S. District Court in Phoenix concluded it doesn’t ban abortions before viability, but limits some abortions between 20 and 24 weeks.

The other case involves a law, passed as HB2800, which bans Planned Parenthood and any other group that maintains an abortion clinic from receiving public funding. The case is also in the 9th Circuit, where the state is appealing a ruling by Judge Neil V. Wake of U.S. District Court who found that the law violates the rights of Medicaid patients under federal law to receive care from the provider of their choice.

The outcome could also be monumental in the abortion battle. A victory for the pro-life movement would leave Planned Parenthood politically vulnerable to more attacks on the federal level. A pro-choice win would send pro-life proponents back to the drawing board in their efforts to close Planned Parenthood.

Feds Sue Arpaio

In May, the U.S. Department of Justice took up Arpaio’s dare to sue him on allegations he racially profiled Latinos during his immigration patrols. The lawsuit and any results of it will probably be the last word on such allegations leveled against Arpaio related to his immigration enforcement.

The federal government, which had been investigating Arpaio and the Sheriff’s Office for years, came out with a damning report in December 2011 alleging an institutional culture of racial profiling. The government wouldn’t elaborate on its findings beyond what the report stated.

Arpaio and the Department of Justice Civil Rights Division lawyers tried to avert a lawsuit and sought an agreement on training for deputies, collecting data and outreach to Latinos. But the sticking point was a court-appointed monitor to enforce the agreement. Arpaio wouldn’t budge, saying such a monitor would be a micromanager who would take away his authority.

“I am not going to surrender my office to the federal government,” he said.

Arpaio got good news in September, when the Department of Justice announced it would not pursue criminal charges against him, ending a four-year abuse of power investigation.

Thomas’ disbarment

Former Maricopa County Attorney Andrew Thomas was once one of the most powerful lawmen in the state, but the day after his disbarment he claimed to be the fall guy in a corrupt legal system and compared himself to historical martyrs.

“Other men far greater than I have gone to jail in defense of principles they believed in and so that they would not kowtow to a corrupt order,” Thomas said, as he stood among the cheers of supporters and catcalls of detractors. “People like Gandhi, people like Dr. King, people like (Aleksandr) Solzhenitsyn, people like Thomas Moore. And I will tell you there are some things worth fighting for and someone has to clean up this town.”

Thomas’ disbarment order formally put in writing what many had claimed for a long time, that he and Arpaio were a corrupt tandem that laid siege to their political opponents.

Thomas and Lisa Aubuchon, a former county prosecutor, were disbarred after a three-member disciplinary panel found they led a three-year campaign of revenge against Thomas’ and Arpaio’s political enemies, which included county managers, private lawyers who worked for the county, and judges. Thomas and Aubuchon even brought criminal charges of bribery against Maricopa County Superior Court Judge Gary Donahoe, which ultimately were dismissed.

Thomas decided not to fight his professional punishment and will be able to seek his license back in five years. Aubuchon has appealed and so did Rachel Alexander, a former deputy county attorney who was suspended for six months and a day for her part in the fight between Thomas and his enemies. Their appeals are pending.

Death Penalty

Arizona came up one execution shy in 2012 of tying the state record for most executions in one year. And although the state executed six prisoners, the ones on death row won some long fought for concessions from the state in how it conducts executions, ending years of litigation.

Beginning in 2007, the prisoners fought in federal court for a host of changes to the state’s execution policies. The state has incrementally given in to the demands, often after courts would express a dim view of the policies during last minute court proceedings before executions.

The Department of Corrections put the changes in writing Sept. 21, and the prisoners dropped their lawsuit a month later. The most significant changes the death row inmates sought was to be put to death with a single lethal chemical rather than a mixture of three; having access to their attorneys for up to an hour before execution; and allowing witnesses to view them being prepped for execution.

One execution did involve political overtones when attorneys for Samuel Lopez, who had been convicted in the rape and murder of 59-year-old Estefana Holmes, questioned the legality and experience of the appointments of new members to the Board of Executive Clemency. The new board was set to hear the prisoner’s plea for leniency in May, but his attorneys claimed the new members were political cronies of Gov. Jan Brewer and they hadn’t met the legally required time for training before his hearing.  Brewer denied the claims, Lopez was denied clemency, and he was executed in June.

The three new appointments made the five-member board a full panel appointed by Brewer, but the board also lost its most experienced member, chairman Duane Belcher, who was fired after a tiff with a staffer for the governor.

Belcher had served on the panel for 20 years and was one of the last members of a board that unanimously recommended in 2009 to reduce a life sentence for a man many believed was innocent of a double murder. Brewer drew national attention and criticism for her denial of the reduction. The prisoner, Bill Macumber, 77, spent 37 years in prison, but he was released in November after striking a deal with the Maricopa County Attorney’s Office in which he pleaded no contest to two counts of second-degree murder and was set free for time served rather than go through a third trial.

Arizona Supreme Court

Former Vice Chief Justice Andrew Hurwitz moved on to the 9th U.S. Circuit Court of Appeals in June, but not without controversy when some U.S. Senate Republicans and pro-life groups opposed his nomination. Democrats had to invoke rarely used procedural tactics to force an up and down vote. The beef with Hurwitz centered on a 2002 article he wrote highlighting opinions he drafted as a clerk for U.S. District Court Judge Jon Newman. Hurwitz stated that the opinions had a crucial influence on the outcome and reasoning of Roe v. Wade.

Despite the controversy, he was confirmed on a voice vote.

Ann Scott Timmer, an Arizona Court of Appeals judge, took the place of Hurwitz on the state’s high court in October, getting the job on her fourth try.

The court also lost retired Justice Michael Ryan, who died Jan. 30 at age 66. Before joining the Supreme Court, the former combat Marine had presided over some of Arizona’s historical political cases, including the criminal trial of former Gov. Evan Mecham and the AZScam trial in which corrupt lawmakers were convicted of taking bribes in a sting.

A death-row prisoner scheduled for lethal injection May 16 sued Gov. Jan Brewer today, alleging she illegally appointed three members to the Board of Executive Clemency.

Julie Hall, an attorney for Samuel Lopez, is asking Maricopa County Superior Court Judge Joseph Kreamer to declare the appointments of the three new members “null and void” and order Brewer to form a new board that conforms to the law.

She is also asking the judge to direct Brewer and Lopez to seek a stay of execution from the Supreme Court.

The filing, which alleges that the illegal appointments deny Lopez of guarantees to minimum due process at a clemency hearing, came two days after another of Lopez’ attorneys, Federal Public Defender Kelley Henry, walked out of a clemency hearing. Henry claimed at the meeting that the Governor’s Office broke open meeting laws in appointing the new members.

Hall went a step further in the court filing by providing a motive for the governor’s alleged wrong doing.

“These were not technical violations of state statute,” Hall wrote. “They resulted in a board designed to not forward clemency recommendations to the Governor in high-profile or controversial cases.”

The new members, Chairman Jesse Hernandez, Melvin Thomas and Brian Livingston, were confirmed April 18 and 19 and replaced former Chairman Duane Belcher, Ellen Stenson and Marilyn Wilkens, all of whom had applied for re-appointment.

Belcher and Stenson have said they believe they were replaced for their votes in controversial cases.

Matt Benson, a spokesman for Gov. Jan Brewer, has said the appointment procedure was done legally and appropriately and that the claims were desperation tactics of an attorney trying to save her client.

Henry said that if she had proceeded with Monday’s clemency hearing, then she wouldn’t have been able to make a case in Maricopa County Superior Court.

Lopez was to go before the board to ask for a delay in his execution and to have his sentence changed from death to life without parole. Brewer has final say on the board recommendation. Lopez was convicted in the 1986 rape and murder of Estefana Holmes, 59, who was stabbed 26 times and her throat slit.

The filing alleges the open meeting violations occurred at the March 21 and 30 meetings of the Executive Clemency Selection Committee, made up of Department of Corrections Director Charles Ryan, DPS Director Robert Halliday, Eileen Klein, Brewer’s chief of staff, Scott Smith, deputy chief of staff, and Joe Sciarrotta, Brewer’s general counsel.

For example, the candidates were supposed to be notified in writing that their interviews would be in executive session, which Hall said didn’t happen.

“At least one of the prospective candidates, Marilyn Wilkens, would have objected to the executive session if she had been given proper notice,” Hall wrote.

Hall said the committee discussed “interview questions” and “selection of interview questions,” subject matter that is improper for executive sessions.

Hall said statute also requires three candidates per vacancy, but there were only eight candidates interviewed and only five of them forwarded to Brewer.

Hall also questioned whether the three new members were adequately trained. Arizona law requires every board member to complete four weeks of training, which she said wasn’t done by the time Lopez had his hearing on Monday.

Hall also said Hernandez isn’t qualified because his employment history doesn’t “demonstrate an interest in Arizona’s correctional program” as required by law, and Livingston has a conflict of interest because his job as a police lobbyist gives him a “financial interest in individuals who are witnesses in the cases which come before the board.”

Related:

• 3 new appointees on clemency board; long-time chief out

An attorney for the next Arizona inmate to be executed is making a legal issue out of the recent shakeup of the Board of Executive Clemency and questioning whether newly appointed members will have enough training to stand in judgment of her client.

Kelley Henry of the Federal Public Defender’s Office is seeking to delay the May 16 execution of Samuel Lopez, 49, because the three new members won’t be through with four weeks of training required by state law by the time they hear his case on May 7. It will be up to Gov. Jan Brewer to approve any recommendation by the board to delay the execution.

Henry said there could also be cause for a legal challenge with the state Supreme Court if the three new members proceed to hear Lopez’ case.

“A death penalty case is very different from any other case for any board member to have to sit in judgment on,” Henry said. “There is a certain amount of experience and training that is necessary in order to understand the issues that are specific to clemency that are presented in a petition.”

Henry filed a petition for a reprieve, or delay, on Tuesday and also asked that new member Brian Livingston recuse himself from the proceedings on the grounds that his job as a lobbyist for a police union creates a conflict of interest.

Kent Cattani, chief counsel for Criminal Appeals for the Arizona Attorney General’s Office, said the state was expecting the challenge from Lopez on the training issue and has already successfully defended a similar challenge in the February 1999 execution of Karl LaGrand.

“There’s no constitutional right to clemency at all,” Cattani said. “A state can just do away with clemency. The courts refer to it as a matter of grace. If the states choose to provide it, they can, if they choose not to, that’s okay.”

If a state provides clemency, then there must be “minimal due process,” which means the state must provide an opportunity for the board to determine clemency and a decision maker who doesn’t make determinations in an arbitrary or capricious manner, Cattani said.

State law requires board members to receive four weeks of training “designed and administered by the chairman of the board.” The chairman, Jesse Hernandez, has no more experience than two of his new colleagues, however, all of whom were confirmed by the Senate April 18 and 19.

The statute doesn’t specify when in their terms the training has to be completed and it doesn’t say they aren’t eligible to vote without the training, but Henry said that makes no difference.

“The only fair interpretation of the statute is that the Legislature intended them to have the training before they voted. Typically you don’t replace three all at once,” Henry said.

In 1999, there was one new member who heard the clemency plea for LaGrand and his attorney argued that she didn’t qualify to sit on the panel because she hadn’t been confirmed by the panel yet and she hadn’t completed her training required by statute.

Judge John Roll of U.S. District Court ruled in favor of the state, saying the lack of training “does not shock the conscience.” Roll was gunned down last year in the assassination attempt of former Congresswoman Gabriel Giffords.

Hernandez replaced Duane Belcher, a 20-year member of the board who had agreed to a temporary role of training the new members, but Brewer fired him after he failed to instruct them on the start time for their first hearing, causing a two-hour delay of the proceeding and leaving victims and families of prisoners waiting anxiously.

Kathryn Brown, a former board chairwoman is now providing the training, said Matt Benson, a spokesman for Gov. Jan Brewer.

Belcher’s term ended in January 2011 and the terms of two others, Ellen Stenson and Marilyn Wilkens, ended this year. The women were replaced by Brian Livingston and Melvin Thomas.

Cattani said the new members are qualified even without extensive training because it doesn’t go to their ability to exercise judgment.

“It’s listening to the plea for clemency and deciding whether it warrants leniency,” Cattani said.

Henry said she believes the board needs to know what type of evidence is relevant in a death penalty case and they need to understand the history of clemency and commutation and the powers of the governor.

In Lopez’ case, the board is going to have to wade through the legal complexities that are going to arise by the request of changing his sentence to life without parole, a sentencing option that wasn’t available when he was condemned in 1987, Henry said.

Stenson said the presentations to the board in the death-penalty cases last hours and are detailed, usually covering the condemned prisoner’s childhood and mental health and include testimony of family, friends and psychiatrists.

Henry sent a letter April asking the board which members will be participating in the Lopez hearing and she hasn’t gotten a response. Hernandez did not respond to the ~Arizona Capitol Times’~ request for comment on the matter.

Henry said she will also be asking for a commutation, or a change of sentence from death to life without parole based on a horrific childhood and incompetent lawyers who defended him.

Lopez was convicted in the 1986 rape and murder of Estefana Holmes, 59, who was stabbed 26 times and her throat slit.

After 20 years of work with the Board of Executive Clemency, Executive Director Duane Belcher was fired and shown the door on Monday – and not without the help of Capitol Police. Belcher was kicked out of the Ninth Floor after engaging in a heated conversation with Brewer deputy chief of staff and DOA Director Scott Smith. “I called him an a**hole,” Belcher told our reporter, adding that police were summoned because he wasn’t vacating the premises fast enough for Smith’s liking.

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Gov. Jan Brewer fired the outgoing executive director of the Board of Executive Clemency after three newly confirmed appointees showed up late for work Monday.

Their tardiness caused a two-hour delay of clemency hearings as victims and families of prisoners stood by disgruntled, and waited for a quorum to form.

Duane Belcher, the former chairman and executive director of the board who was staying on in a temporary role to help with the transition of new members, said he was escorted by Capitol Police from the governor’s ninth-floor office after a heated exchange with one of Brewer’s top aides.

Belcher said he was fired when he refused to accept blame for the mix up that led to the new members showing up late.

“I’ve dedicated 30 years to this state – 20 years off and on, for the most part with the Board of Executive Clemency – and my reputation has never been in question, as far as I know, and at this point in time, it seems like I am the chosen one to take the blame for something I believe wasn’t my fault,” Belcher said.

Brewer spokesman Matthew Benson would only confirm that Belcher was fired.

Belcher said his last day was scheduled for May 11 and he was working under a verbal agreement that he would train incoming members Brian Livingston, Melvin Thomas and Jesse Hernandez, who is Belcher’s replacement. All three were confirmed by the Senate last week.

Belcher said he was told by Scott Smith, Brewer’s deputy chief of staff for operations, that he didn’t fulfill his part of the transition agreement by not telling the new members to show up at 8 a.m. for the hearing.

The hearing schedule is posted on the board’s website.

“Well, if you’re given a new job, there’s some initiative that has to be taken on the part of whoever it is that’s starting the new job,” Belcher said.

Belcher said he knew that Thomas, who actually started on Thursday, was going to be late on Monday because he mentioned he had a doctor’s appointment. Belcher said he also believed that Hernandez was going to report to work on Monday morning, but he learned later that day that Hernandez arrived late because he had taken his boss, Rep. David Schweikert, to the airport. Belcher said he had no conversations with Livingston before Monday.

The board has hearings scheduled four days a week and decides on commutations, reprieves and paroles for Arizona’s 40,000 inmates.

Terms for Belcher and former members Ellen Stenson and Marilyn Wilkens ended this year and in 2011. Stenson said she believed she and Belcher weren’t re-appointed because they were the last remaining members of the board that in 2009 unanimously recommended commutation for Bill Macumber, a 76-year-old prisoner serving a life sentence for a double murder that someone else confessed to since his 1975 conviction.

The recommendation and Brewer’s subsequent rejection of it made national headlines and was a hot topic in prisoner advocate circles. Macumber’s son also confronted Brewer during a public appearance demanding to know why she rejected the recommendation.

Stenson said Belcher deserved to be treated better than he was on Monday after serving the state for so long.

Duane Belcher, chairman and executive director of the Arizona Board of Clemency, is on his way out after 20 years, as three new appointees take their places on the panel now made up entirely of Gov. Jan Brewer’s picks.

Belcher’s departure, some observers say, creates a vacuum of experience and leadership. Belcher is also one of the last members left from a board that unanimously recommended in 2009 to reduce a life sentence for a man many believe is innocent of a double murder.

Brewer’s denial of the recommended commutation drew national attention and criticism of the governor.

Brewer spokesman Matt Benson said there was no political retribution for Belcher or five-year member Ellen Stenson, both of whom sought new terms after they expired this year and in 2011.

Stenson said she believes otherwise, especially since she said she was questioned during her interview with a selection committee whether she still stands by her 2009 vote to recommend commutation for the man convicted in the double murder, Bill Macumber, 76.

“I felt Mr. Macumber deserved a chance at (commutation),” Stetson said.

Belcher said he was simply told by Brewer’s office that it was seeking to go in a new direction.

Benson said, “Sometimes it’s good to get fresh blood onto any commission. In this instance, we had an opportunity to bring in somebody new with a new perspective.”

The Senate on April 18 confirmed the nominations of the new clemency chairman, Jesse Hernandez, and Thomas Melvin, who will replace Marilyn Wilkens. The Senate confirmed Brian Livingston, who will replace Stenson, on April 19.

Belcher declined to speculate on whether the Macumber case led to his and Stenson’s departure.

“Maybe they just want some people with different backgrounds on the board to basically do the same thing but maybe have a different perspective on people getting out of prison or execution,” Belcher said.

There’s still no doubt that Brewer took grief for the Macumber case.

The board’s recommendation was based on “substantial” doubt that he committed the 1962 murders, and his good behavior behind bars. Retired Maricopa County Superior Court Judge Thomas O’Toole also testified that a killer he represented decades ago as a defense attorney confessed the crime to him, but he was barred from disclosing the confession by attorney-client privilege until after the killer died.

Brewer denied the recommendation and the case made national news and was the hot topic throughout the prisoner-advocate field. Macumber’s son also confronted Brewer at a public appearance with a television news crew demanding to know why she rejected the recommendation.

When Macumber’s case came before the board again last year Belcher voted with member Jack LaSota, a Brewer appointee, for commutation while Brewer appointees, Wilkens and Ellen Kirschbaum, voted against it. Stenson was out of town at the time, so the tie vote meant Macumber’s status didn’t change.

Belcher said he understands the position a governor, who always risks a Willie Horton incident, is in when it comes to clemency. Horton was a Massachusetts prisoner serving a life term without parole who committed a rape while he was on a furlough.

“It’s like giving the governor a plate full of hand grenades — which one is going to explode?” Belcher said.

Belcher can relate, since he was on a board that released Baseline Killer Mark Goudeau on parole in 2004. Goudeau went on a killing spree in 2006 that ended with nine convictions of first-degree murder and a cell on death row.

“Decision-makers have to make difficult decisions,” he said. “There’s no crystal ball.”

Belcher attended an April 19 hearing to help train Melvin, and while Hernandez was officially the new chairman, he didn’t attend.

Hernandez’ resume includes jobs as a self-employed insurance agent and Community and Government Affairs Representative for United Parcel Service. His most-recent employment was with Congressman David Schweikert and he’s been politically active by running unsuccessfully twice as a Republican for Legislative District 17 and working on campaigns for Dan Quayle and County Attorney Bill Montgomery.

He left off his resume his chairmanship of the Patriots for Pearce, a committee formed to support former Sen. Russell Pearce in his recall election in 2011.

When questioned about the Pearce campaign during an April 16 Senate Judiciary Committee hearing, Hernandez said he was simply an honorary chairman and didn’t participate in any campaigning.

As chairman, Hernandez will also serve as executive director of the board. His resume doesn’t list any experience running a government agency or experience in the criminal justice system, with the exception of being honorably discharged as a military policeman in 1982.

“He brings a great deal of military law-enforcement background and experience in both the public and private sector to this position,”

Benson said.

Hernandez didn’t return repeated calls seeking comment.

Thomas is former warden with the Department of Corrections and an Arizona private prison and Livingston is a former police officer who works as a police union lobbyist.

Belcher worked as a parole officer for the Department of Corrections before joining the board as an appointee of Gov. Fife Symington in 1992.

Donna Leone Hamm of the prisoner rights group Middle Ground Prison Reform, who has been regularly attending board meetings since 1981, said Belcher’s exit will increase an already steep learning curve for new members.

“Certainly with Mr. Belcher this man has an enormous historical perspective, not just on the workings of the board, but on the trends, on the laws that apply because there are still lifers coming before that board sentenced under the 1968 criminal code,” Hamm said.

Arizona made dramatic changes to its criminal codes in 1978 and 1994, the latter year being when traditional parole ended and truth-in- sentencing took effect. Truth in sentencing requires a prisoner to serve at least 85 percent of his sentence before any chance of getting released. If the prisoner gets out, then the remainder is spent under the supervision of the Department of Corrections.

State law also requires that each new member take a four-week course conducted by the chairman to learn the duties and activities related to the board.

“The statute does not say they aren’t eligible to cast a vote until they complete their training, it would seem logical they probably shouldn’t be conducting hearings and casting votes until they get their training,” Hamm said.

Belcher said he used to allow new members to participate in hearings, but not vote for the first month they served because there is so much to learn. Belcher is staying on until May 11 to help with the transition.

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.