DAR File No. 37438

Pardons (Board Of), Administration

Rule R671-312

Commutation Hearings for Death Penalty Cases

Notice of Proposed Rule

(Amendment)

DAR File No.: 37438
Filed: 03/22/2013 12:51:14 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule lays out the general guidelines for those who wish to petition the Board of Pardons for a death penalty commutation.

Summary of the rule or change:

This rule change involves the splitting of the original Rule R671-312 into three rules; this part of the rule is becoming a general guideline for the death penalty commutation process and procedure, and the other two determine processes and procedures specific to each of the two categories of death penalty cases. Two filings that take language from Rule R671-312 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" (Rule R671-312B). (DAR NOTE: The proposed new Rule R671-312A is under DAR No. 37439 and the proposed new Rule R671-312B is under DAR No. 37440 in this issue, April 15, 2013, of the Bulletin.)

State statutory or constitutional authorization for this rule:

• Section 77-27-5
• Section 77-19-8
• Section 77-27-8
• Section 77-27-4
• Section 77-27-9.5
• Section 77-27-5.5
• Art VII, Sec 12
• Section 77-27-9
• Section 77-27-2

Anticipated cost or savings to:

the state budget:

Enactment of this rule amendment 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 rule amendment 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 rule amendment 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 rule amendment 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 rule amendment, and finds that there is no fiscal impact on businesses because of this rule amendment. 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 jagreen@utah.gov

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.

R671-312. Commutation Hearings for Death Penalty Cases.

R671-312-1. General Applicability[ of Rules to Petitioners].

The provisions and procedures set forth below are of general applicability to all petitions filed with the Utah Board of Pardons and Parole (Board) seeking the commutation of a death sentence.

(1) Any person, individually or through counsel, who has been sentenced to death by a court in this state may petition the Board for commutation of the death sentence.

(2) No person has a right, privilege, or entitlement to commutation or clemency; nor to the scheduling of a commutation hearing. Nothing in this rule may be interpreted to convey any right or expectation of commutation, clemency, or to a commutation hearing. The decision to schedule a commutation hearing is within the exclusive power and authority of the Board.

(3) Petitions for commutation of a death sentence shall be governed by applicable state constitutional provisions, statutes, this rule, and other Board administrative rules as applicable.

(4) Any document, pleading, notice, attachment or other item submitted as part of the commutation petition, response, or subsequent pleadings shall be delivered to and filed with the Board's Administrative Coordinator at the Board's offices.

(5) Upon the filing of a commutation petition, and throughout the duration of all commutation proceedings, any communication to the Board by any party or party's counsel should be directed to the Board's Administrative Coordinator. Any communication from the Board to any party or counsel will be directed through the Board's Administrative Coordinator. This section does not apply to Board communications with its own legal counsel as assigned by the Attorney General.

(6) A commutation petition, any response thereto, and any subsequent pleading, or document submitted to the Board for consideration in relation to a commutation petition is considered a public document, unless the document is determined by the Board to be controlled, protected, or private, pursuant to any other statute, law, rule, or prior case law.

(7) Any order issued by the Board relating to a commutation petition is a public document.

(8) If the petitioner's execution is stayed by any court, after a commutation petition has been filed with the Board, but prior to commencement of any commutation hearing, all commutation proceedings before the Board shall cease.

(9) If the petitioner's execution is stayed by any court after a commutation hearing has commenced, the hearing may continue, and the Board may render its decision.

(10) As used in this rule, "day" means a regular calendar day, including weekends and holidays.

(11) As used in this rule, "Petitioner" means the person whose death sentence is sought to be commuted by the filing of a commutation petition with the Board.

(12) The Board may summarily deny, with or without a response or objection from the State, any commutation petition without a hearing.

(13) Procedures applicable to commutation petitions for any person sentenced to [the ]death [penalty]by a court in this state prior to April 26, 1992, [will be]are governed by Rule R671-312 A[-2]. Procedures applicable to commutation petitions for any person sentenced to [the ]death [penalty]by a court in this state after April 26, 1992, [will be]are governed by Rule R671-312B[-3].

(14) If the Board deems necessary and appropriate, the Board may temporarily stay an execution to fully hear a petition for commutation.

 

[R671-312-2. Commutation Procedures Applicable to Persons Sentenced to Death Before April 26, 1992.

(1) A person sentenced to death, or his counsel, may file a petition for commutation no later than seven days after the sentencing court has issued a judgment of death or a warrant of execution after completion of the person's appeal from his conviction. For purposes of this rule, "appeal" does not include any action for post-conviction relief or any other form of collateral attack.

(2) The commutation petition shall be signed by the person sentenced to death and filed at the offices of the Board of Pardons and Parole "Board" no later than seven days after the sentencing court signs a warrant setting an execution date. The petitioner or his counsel shall mail a copy of the petition, by United States Mail, postage prepaid, to the Attorney General or his designee. Additional copies of the petition may be served in any manner calculated to accomplish actual notice to the State, and may include hand delivery, facsimile transmission, electronic mail, or other electronic transmission.

(3) If the execution date is stayed by any court between the time of the sentencing court's issuance of the execution judgment or warrant and the beginning of the commutation hearing, the commutation proceeding shall terminate. If the execution date is stayed during the commutation hearing, the hearing may continue and the Board may render its decision in accordance with this rule.

(4) The petition shall include:

(a) the petitioner's name and the name and address of any attorney who is representing the petitioner in the commutation proceeding;

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

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

(5) 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 this information requires a new hearing.

(6) The Board may temporarily stay an execution to fully hear the petition for commutation.

(7) Within seven days of receiving the petition, the State of Utah, by and through the Attorney General or his designee, shall file a response to the petition with the Board. The State shall file with the Board and mail, via United States mail, postage prepaid, or hand deliver to the petitioner and his counsel, if represented, the State's response, along with copies of all written evidence, and the names of the witnesses, and a summary of the anticipated testimony upon which the State intends to rely on to rebut petitioner's claim that the sentence of death should be commuted. The Board may request either the petitioner or the State to provide additional information.

(8) Within three business days of receiving the State's response, the Board will hold a pre-hearing conference to identify and set the witnesses to be called, clarify the issues to be addressed, and take any other action it considers necessary and appropriate to control and direct the proceedings.

(9) If not otherwise called as a witness, a victim representative, as defined by Administrative 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 Administrative Rule R671-203-4(A-C, and F).

(10) The commutation hearing is not adversarial and neither side 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 attorney, or the State's attorney. The role of the State's attorney is limited to rebutting the petitioner's claim and otherwise assisting the Board in determining all facts relevant to the inquiry. The Rules of Evidence do not apply to the commutation hearing.

(11) In conducting the commutation hearing:

(a) The Board 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 Utah Code Ann. Subsection 77-27-8(2).

(c) Administrative 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.

(12) The Board will reconvene in open session to announce and distribute its written decision.

 

R671-312-3. Commutation Procedures Applicable to Persons Sentenced to Death After April 26, 1992.

(1) A person sentenced to death, or his counsel, may file a petition for commutation anytime after the sentencing court has issued a judgment of death or a warrant of execution after completion of the person's appeal from his conviction. For purposes of this rule, "appeal" does not include any action for post-conviction relief or any other form of collateral attack.

(2) The commutation petition shall be signed by the person sentenced to death and filed at the offices of the Board no later than seven days after the sentencing court signs a warrant setting an execution date. The petitioner or his counsel shall mail a copy of the petition, by United States Mail, postage prepaid, to the Attorney General or his designee. Additional copies of the petition may be served in any manner calculated to accomplish actual notice to the State, and may include hand delivery, facsimile transmission, electronic mail or electronic transmission.

(3) If the execution date is stayed by any court between the time of the sentencing court's issuance of the execution judgment or warrant and the beginning of the commutation hearing, the commutation proceeding may terminate. If the execution date is stayed during the commutation hearing, the hearing will continue and the Board may render its decision in accordance with this rule.

(4) The petition shall include:

(a) the petitioner's name and name and address of any attorney who is representing the petitioner in the commutation proceeding;

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

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

(d) a statement specifying whether any of the reasons stated as reasons or grounds for commutation have been reviewed by a court or courts of competent jurisdiction;

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

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

(5) If petitioner previously received a commutation hearing, the petition shall set forth what, if any, new significant and previously unavailable information exists which supports commutation and the reasons this information requires a new hearing.

(6) Within seven days of receiving the petition, the State of Utah, by and through the Attorney General or his designee shall file a response with the Board. The State's response shall be mailed, via United States mail, postage prepaid, or hand delivered to the petitioner and his counsel, if represented. The state's response to the petition shall include copies of all written evidence, and the names of the witnesses, and a summary of the anticipated testimony upon which the State intends to rely to either challenge petitioner's right to commutation hearing or to rebut petitioner's claim that the sentence of death should be commuted. The Board may request either the petitioner or the State to provide additional information.

(7) 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.

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

(9) If the Board determines the petition presents a substantial issue for commutation, which has not been reviewed in the judicial process, a commutation hearing shall be scheduled as soon as reasonably possible.

(10) The Board may temporarily stay an execution to fully hear the petition for commutation.

(11) Within three business days of determining the petition presents a substantial issue for commutation which has not been reviewed in the judicial process, the Board shall hold a pre-hearing conference to identify and set the witnesses to be called, clarify the issues to be addressed, and take any other action it considers necessary and appropriate to control and direct the proceedings.

(12) If not otherwise called as a witness, a victim representative, as defined by Administrative 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 Administrative Rule R671-203-4(A-C, and F).

(13) The commutation hearing is not adversarial and neither side 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 attorney, and the State's attorney. The role of the State's attorney is limited to challenge the petitioner's right to a commutation hearing and rebutting petitioner's claim and otherwise assisting the Board in determining all facts relevant to the inquiry. The Rules of Evidence do not apply to the commutation hearing.

(14) In conducting the commutation hearing:

(a) The Board 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 Utah Code Ann. Subsection 77-27-8(2).

(c) Administrative 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.

(15) The Board will reconvene in open session to announce and distribute its written decision.

]

KEY: capital punishment

Date of Enactment or Last Substantive Amendment: [February 25, 2009]2013

Notice of Continuation: February 15, 2013

Authorizing, and Implemented or Interpreted Law: [77-19-7; ]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.