DAR File No. 40316

Pardons (Board Of), Administration

Section R671-315-1

Pardons

Notice of Proposed Rule

(Amendment)

DAR File No.: 40316
Filed: 04/14/2016 05:36:44 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule change is to clarify the applicant for a pardon must appear personally at the pardon hearing. The change also sets requirements for the Board to disclose information to the applicant and notify victims and prosecutors.

Summary of the rule or change:

Pardon hearings may be conducted by the full Board, a panel of Board members, or a single Board member. Applicants for a pardon must sign the application and appear personally at the pardon hearing. The Board will not consider pardons for infractions. The onus to provide verification of therapy completion and payment of fines and restitution is on the applicant. The Board will disclose information it receives to the pardon applicant. The Board is required to notify victims, the court, and the prosecutor. Family, supporters, investigators, prosecutors, or court officers may testify at the pardon hearing. Members of the public may submit written comments. If a pardon is granted, the Board provides a list of agencies that may have records on the pardoned individual that should be expunged.

State statutory or constitutional authorization for this rule:

• Subsection 77-27-1(14)
• Article VII, Section 12
• Section 77-27-5.1
• Section 77-27-5
• Section 77-27-9

Anticipated cost or savings to:

the state budget:

The changes affect the processing of pardon applications. Any increase in workload can be absorbed with existing resources without additional costs.

local governments:

The proposed changes affect the processing of pardon applications and the hearing. The proposed change allows local governments (investigators and prosecutors) to testify at a pardon hearing; however, there is no requirement for local governments to participate.

small businesses:

Small businesses do not participate in the pardon process. The changes do not impose any requirements on small businesses.

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

The proposed changes require the pardon applicant to personally appear at the pardon hearing and clarify the requirement for the applicant to provide certain verifications.

Compliance costs for affected persons:

The Board does not charge any fees for a pardon application or the granting of a pardon.

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

Businesses do not apply for pardons or have any requirement to participate in a hearing except businesses may be victims, and, as such, they have the option to submit comments or speak at a pardon hearing.

Angela Micklos, Board Chair

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:

• Greg Johnson at the above address, by phone at 801-261-6454, by FAX at 801-261-6481, or by Internet E-mail at gregjohnson@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:

06/20/2016

Interested persons may attend a public hearing regarding this rule:

• 06/01/2016 08:00 AM, Board of Pardons, 448 E Winchester, Suite 300, Murray, UT

This rule may become effective on:

07/01/2016

Authorized by:

Angela Micklos, Chair

R671. Pardons (Board of), Administration.

R671-315. Pardons.

R671-315-1. Pardons.

1. A pardon is an act of grace that forgives a criminal conviction and restores the rights and privileges forfeited by or because of the criminal conviction. A pardon releases an offender from the entire punishment prescribed for a criminal offense and from disabilities that are a consequence of the criminal conviction. A pardon reinstates any civil rights lost as a consequence of conviction or punishment for a criminal offense.

[A]2. (a) The Board may consider an application for a pardon from any individual who has been convicted of an offense in the state of Utah, after the applicant has exhausted all judicial remedies, including expungement, in an effort to ameliorate the effects of the conviction.

(b) The Board[generally] will accept and consider a pardon application only after at least five years has passed since the sentence for the conviction and any enhancement period has[been] terminated or expired.

(c) The Board will not consider pardons for infractions.

[1]3. (a) A[ny] person seeking a pardon from the Board must complete and file, to the Board's satisfaction, an application in a form approved by the Board.

(b) No pardon application will be accepted unless it has been signed by the person whose convictions are sought to be pardoned.

(c) Posthumous pardon applications will not be accepted or considered.

(d) A pardon application will not be considered unless the applicant is able and willing to personally attend the pardon hearing.

[2]4. In addition to the completed application, Board staff shall obtain and provide relevant information [that shall include]including, but not be limited to:

(a) all police reports concerning the conviction for which the applicant is seeking a pardon;

(b) all pre- or post- sentence reports prepared in connection with any sentence served in jail or prison, and for any conviction for which the applicant is seeking a pardon;

(c) the applicant's inmate files;

(d) a recent BCI report, NCIC report, and III report concerning the applicant;

[(f) the applicant's employment history;]

( e[g]) verification from the applicant that all imposed restitution, fines, fees, or surcharges have been paid in full; and

( f[h]) verification from the applicantthat the applicant completed therapy programs ordered by any court or by the Board.

[2]5. (a) Board staff shall summarize [this ]all information collected or submitted regarding the application and provide the application and additional information to the Board[within 60 days from the date the completed application and all required information and documentation was received].

(b) Board staff shall disclose to the applicant, prior to the hearing, all information obtained or received by the Board regarding the pardon application which is not from the applicant.

(c) The Board may request additional information from staff or from the applicant.

[3. ]6. Once complete, and if otherwise compliant with all Board rules,[The Board shall consider] the pardon application and all available relevant information [relevant to it]will be considered by the Board, which shall[and] vote to grant or deny a pardon hearing.

[(a) If a pardon hearing is granted the hearing should be held within 60 days, or as soon thereafter as practicable, of the Board's decision to grant a pardon hearing.]

[4. The Board shall publish notice of the pardon hearing on its web site and on the Utah Public Notice web site.]

[B]7. If a [Upon scheduling a] pardon hearing[,]is granted:

(a) notice of the hearing shall be published on (i) the Board's web site ; and (ii) the Utah Public Notice web site; and

(b) for each conviction which is the subject of the pardon hearing, notice of the hearing shall be mailed or otherwise sent [ given ] to:

(i) any victim[ s ] of record, if[ they ] the victim can be located[,];

(ii) the[ chief law enforcement officer of the ] arresting or investigative agency[, the ];

(iii) the sentencing court [ presiding judge where the conviction was entered, ]; and

(iv) [ and the County, District, or City Attorney where the case was prosecuted ] the respective prosecutor's office .

8. I n furtherance of the Board's obligation to conduct a full and fair hearing, the following pardon hearing procedures apply:

(a) The pardon applicant shall personally appear and shall be required to testify. The applicant may designate a few family members or other supporters to offer testimony at the hearing, if time allows.

(b) Any victim of a conviction for which a hearing has been scheduled may offer testimony, or may submit written material concerning the pardon request . Any victim may designate a representative to testify or speak on the victim's behalf at a pardon hearing.

(c) An authorized representative of the arresting or investigative agency, sentencing court or prosecutor's office for each conviction which is the subject of the hearing may offer testimony or may submit written material concerning the pardon request.

(d) The Board may subpoena any person to attend and testify at a pardon hearing if it determines that such testimony will aid the Board in making a decision regarding the pardon request.

(e) Any person not otherwise specified in this rule may submit letters in support of or in opposition to a pardon request.

(f) All testimony or written material regarding a pardon request must be relevant, and must comply with all other Board administrative rules.

(g) Statements or other material submitted regarding a pardon application or hearing :

(i) may not be submitted anonymously ;

(ii) may not be based upon hearsay ; and

(iii) shall only be based upon the personal knowledge or opinion of the person submitting the statement or material.

(h) The Board may refuse to accept, remove from an offender's file or pardon application, or refuse to consider any statement or material submitted which is irrelevant, defamatory, hearsay, or which does not otherwise conform to Board rules.

9. A pardon hearing may be conducted by the full board, or by a panel or a single board member assigned by the board chair . If conducted by a panel of the board, the board chair may appoint members to the panels in any combination.

[C]10. The Board may grant a conditional pardon or an unconditional pardon. The petitioner will be notified in writing of the results as soon as practicable.

[D]11. The Board may grant or deny a pardon by majority vote. Pardon decisions are final and are not subject to judicial review.

12. Upon granting a pardon, the Board shall issue an expungement order, directing any criminal justice agency to remove the recipient's identifying information relating to the expunged convictions from its records.

(a) An expungement order, issued by the Board, has the same legal effect and authority as an order of expungement issued by a court, pursuant to Title 77, Chapter 40, Utah Expungement Act.

(b) The board shall provide clear written directions to the pardon recipient along with a list of agencies known to be affected by the expungement order.

[ E ] 13 . The Board may dispense with any requirement created by this rule for good cause.

 

KEY: pardons

Date of Enactment or Last Substantive Amendment: [May 22, 2013]2016

Notice of Continuation: January 31, 2012

Authorizing, and Implemented or Interpreted Law: Art. VII Sec. 12; 77-27-1 (14) [ et seq. ]; 77-27-5; 77-27-5.1; 77-27-9[ ; Art VII Sec 12 ]