DAR File No. 37440

Pardons (Board Of), Administration

Rule R671-312B

Commutation Procedures Applicable to Persons Sentenced to Death After April 26, 1992

Notice of Proposed Rule

(New Rule)

DAR File No.: 37440
Filed: 03/22/2013 01:16:01 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule lays out the commutation guidelines and procedures applicable to persons sentenced to death after April 26, 1992.

Summary of the rule or change:

This new rule involves the splitting of the original Rule R671-312 into three rules; this part of the rule is one of the two filings that take language from Rule R671-312 and are published in this Bulletin and address "Commutation Procedures Applicable to Persons Sentenced to Death Before April 26, 1992" (Rule R671-312A) and "Commutation Procedures Applicable to Persons Sentenced to Death After April 26, 1992" (this rule). (DAR NOTE: The proposed amendment to Rule R671-312 is under DAR No. 37438 and the proposed new Rule R671-312A is under DAR No. 37439 in this issue, April 15, 2013, of the Bulletin.)

State statutory or constitutional authorization for this rule:

• Section 77-27-5.5
• Art VII, Sec 12
• Section 77-27-5
• Section 77-27-8

Anticipated cost or savings to:

the state budget:

Enactment of this new rule will have no fiscal impact and will impose no cost or savings to state government. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

local governments:

Enactment of this new rule will have no fiscal impact and will impose no cost or savings to local governments. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

small businesses:

Enactment of this new rule will have no fiscal impact and will impose no cost or savings to small businesses. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

persons other than small businesses, businesses, or local governmental entities:

Enactment of this new rule will have no fiscal impact and will impose no cost or savings to any other person. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Compliance costs for affected persons:

There is no compliance cost for affected persons. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Chairman of the Board of Pardons and Parole has considered this new rule, and finds that there is no fiscal impact on businesses because of this new rule. Interested persons may present their views on the rule pursuant to Division of Administrative Rules process and procedures. A public meeting was scheduled, noticed, and held regarding this rule amendment on Monday, 3/4/2013 at 8:00 a.m. No person attended the hearing to comment on this rule amendment, and no comments have been received by the Board.

Clark A. Harms, Chairman

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2013

This rule may become effective on:

05/22/2013

Authorized by:

Clark Harms, Chairman

R671. Pardons (Board of), Administration.

R671-312B. Commutation Procedures Applicable to Persons Sentenced to Death After April 26, 1992.

R671-312B-1. Scope of Rule.

Board of Pardons and Parole Administrative Rule R671-312 governs all petitions and proceedings when a petition for commutation of a death sentence is filed by or on behalf of a person sentenced to death for a capital felony in this state. In addition to the rules of general applicability set forth in Rule R671-312, this rule R671-312B governs commutation petitions and proceedings when a death sentence commutation petition concerns a person who was sentenced to death after April 26, 1992.

 

R671-312B-2. Eligibility.

(1) A person sentenced to death, or that person's counsel, may file a petition for commutation of a death sentence no later than seven days after the sentencing court has issued a judgment of death or a warrant of execution.

(2) If any appeal of the petioner's conviction or sentence is filed or litigated on behalf of the petitioner, including any collateral challenges or lawsuits, the commutation petition shall be filed within seven days after completion of all such appeals of the conviction or sentence and collateral challenges or lawsuits, including, but not limited to all proceedings seeking post-conviction relief, habeus corpus relief, or other proceedings for extraordinary relief.

(3) Failure of any petitioner or counsel to comply with this rule, all other Board rules, or any Board directive or order may result in the summary denial of the petition and cancellation of any scheduled hearing.

(4) Any act, omission, pleading, or other filing by a petitioner or counsel that the Board determines is meant to delay, hinder, or disrupt the Board's commutation process or proceedings may result in the summary denial of the petition and cancellation of any scheduled hearing.

 

R671-312B-3. Petition Requirements.

(1)(a) The commutation petition shall be signed by the petitioner, under oath, and filed with the Board's Administrative Coordinator at the offices of the Board no later than seven days after the sentencing court signs a warrant setting an execution date.

(b) If the petitioner is represented by counsel, the petitioner's counsel shall also sign the petition.

(c) If the petitioner is represented by counsel, counsel shall comply in all respects with Rule R671-103, Attorneys.

(d) The petitioner or counsel shall hand-deliver a copy of the petition to the Utah Attorney General or designee. Additional copies of the petition may be served in any manner calculated to accomplish actual notice to the state, and may include facsimile transmission, electronic mail, or other electronic transmission.

(2) The commutation petition shall include:

(a) the petitioner's name, date of birth, and Department of Corrections offender number;

(b) the name, address, telephone number, and e-mail address of any counsel representing the petitioner in the commutation proceeding;

(c) a certified copy of the Judgment, Conviction and Sentence for which commutation is petitioned;

(d) a certified copy of the Warrant setting the execution date applicable to the petitioner and for which commutation is petitioned;

(e) a statement specifying whether or not the conviction and sentence for which commutation is petitioned was appealed; and if so, a copy of any applicable appellate decision;

(f) a statement specifying whether or not the conviction and sentence for which commutation is petitioned was the subject of any complaint, petition, or other court filing or litigation seeking collateral remedies, post-conviction relief, a writ of habeus corpus, or any other extraordinary relief; and if so, a copy of all applicable final orders, rulings, determinations, and appellate decisions regarding such litigation;

(g) a statement of the reasons or grounds which the petitioner believes support the commutation of the death sentence;

(h) a statement certifying whether any of the reasons stated as reasons or grounds for commutation have been reviewed by a court or courts of competent jurisdiction, and if reviewed by any court, a citation to the record indicating such review;

(i) a statement, if new information is alleged, explaining why the information is considered new, why the information was not or could not have been reviewed during the judicial process, and why the information is not still subject to judicial review;

(j) a statement, if legal or constitutional reasons for commutation are claimed, setting forth the reasons that the provisions of Utah Code Ann. Section 77-27-5.5(6) do not prohibit the Board from considering the purported legal or constitutional issues; and

(k) copies of all written evidence upon which the petitioner intends to rely at the hearing along with the names of all witnesses the petitioner intends to call and a summary of their anticipated testimony.

(3) If the petitioner previously received a commutation hearing, the petition shall include a statement reciting what, if any, new, significant, and previously unavailable information exists which supports commutation and the reasons the petitioner believes this information supports a second, subsequent, or new hearing.

(4) Within seven days of receiving the petition, the State of Utah, by and through the Attorney General or designee, shall file a response to the petition . The State shall file it's response to the commutation petition with the Board and hand deliver a copy of the response to the petitioner and counsel, if represented.

(a) The state's response shall include copies of all written evidence, the names of any witnesses, and a summary of the anticipated testimony upon which the State intends to rely to rebut the petitioner's claim that the sentence of death should be commuted.

(b) The Board may request either the petitioner or the state to provide additional information.

 

R671-312B-4. Preliminary Determinations and Procedures.

(1) If the Board believes that it cannot consider the claims pursuant to Utah Code Ann. Section 77-27-5.5, it shall deny the petition.

(2) If the Board determines the petition does not present a substantial issue for commutation, it shall deny the petition.

(3) If the Board determines the petition presents a substantial issue for commutation, which has not, or could not have been reviewed by the judicial process, the Board may grant a commutation hearing or deny the petition without further pleadings, response, hearing, or submissions.

(4) The Board shall issue an order either granting or denying a commutation hearing. The Board's order shall be delivered to the petitioner, counsel, and the state's counsel, either by mail or electronic mail.

(5) If the Board grants a commutation hearing, the Board Chair or a Board Member designated by the Chair, will:

(a) schedule and hold a pre-hearing conference with the petitioner's counsel and the state's counsel in order to schedule the commutation hearing;

(b) identify the witnesses to be called;

(c) clarify the issues to be addressed; and

(d) take any other action deemed necessary and appropriate to conduct the commutation hearing and proceedings.

 

R671-312B-5. Commutation Hearing Procedures.

(1) Pursuant to Utah Constitution, Art. VII, Section 12, and Utah Code Ann., Section 77-27-5, a commutation hearing must be held before the full Board.

(2) Notice of the commutation hearing shall be sent to:

(a) the victim's representatives;

(b) the police agency which investigated the offenses for which commutation has been petitioned;

(c) the office or agency responsible for the prosecution of the offenses for which commutation has been petitioned; and

(d) the court which originally imposed the sentence for the offenses for which commutation has been petitioned.

(3) Notice of the commutation hearing will be provided to the public via the Board's internet website, and the State of Utah Public Meeting and Notice website.

(4) If not otherwise called as a witness, a victim representative, as defined by Rule R671-203-1, shall be afforded the opportunity to attend the commutation hearing, and to present testimony regarding the commutation of the death sentence, in accordance with, and subject to the provisions of Subsections R671-203-4 A through C, and F.

(5) A commutation hearing is not adversarial and neither party is allowed to cross-examine the other party's witnesses. However, the Board may ask questions freely of any witness, the petitioner, the petitioner's counsel, or the state's counsel.

(6) The Utah Rules of Evidence do not apply to a commutation hearing. However, all evidence and testimony sought to be introduced by the parties must be relevant to the issues to be decided by the Board. The Board, through the Board Chair, will make all final determinations regarding evidence or testimony admissibility, relevance, or exclusion.

(7) In conducting the commutation hearing:

(a) The Board Chair or designee will place all witnesses under oath and may impose a time limit on each side for presenting its case.

(b) The Board will record the commutation hearing in accordance with Subsection 77-27-8(2).

(c) Rule R671-302, News Media and Public Access to Hearings, will govern media and public access to the hearing.

(d) The Board may take any action it considers necessary and appropriate to maintain the order, decorum, and dignity of the hearing.

(e) During the commutation hearing, no person, including either party, the petitioner, any witness, either party's counsel or any other person associated with or employed by a party or counsel, may approach any member of the Board without leave from the Chair.

 

R671-312B-6. Commutation Decision.

(1) The Board shall determine by majority decision whether to grant or deny the commutation petition.

(2) The decision of the Board granting or denying commutation following a hearing shall be delivered by mail or electronic mail to the parties and published by the Board in the same manner as other Board decisions.

(3) The decision of the Board will also be filed with the court that entered the sentence or conviction that is the subject of the commutation petition.

 

KEY: capital punishment, commutation

Date of Enactment or Last Substantive Amendment: 2013

Authorizing, and Implemented or Interpreted Law: Art VII, Sec 12; 77-19-8; 77-27-2; 77-27-4; 77-27-5; 77-27-5.5; 77-27-8; 77-27-9; 77-27-9.5.