EXECUTIVE CLEMENCY PROCESS
Summary
The Governor's executive clemency authority is derived from Section 14 of Article V of the Michigan Constitution of 1963, which states that the Governor shall have power to grant reprieves, commutations, and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as the Governor may direct, subject to procedures and regulations prescribed by law. The Governor shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefore.
A commutation is defined as the reduction of an individual's sentence to a specified term such that the Michigan Parole Board is given the jurisdiction and authority to determine an individual's parole eligibility. A commutation does not nullify the underlying conviction(s). In contrast, a pardon erases a conviction from an individual's record. The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it "releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." People v. Van Heck, 252 Mich.App. 207, 216; 651 N.W.2d 174, 179 (2002). A pardon is an extraordinary form of relief for someone convicted of a crime and is extremely rare.
As noted in the Constitution, the Governor's clemency authority is "subject to procedures and regulations prescribed by law." These procedures and regulations are contained in Sections 43 and 44 of the Corrections Code of 1953, 1953 PA 232, MCL 791.243 and 791.244. All applications for pardons and commutations must be filed with the Michigan Parole Board ("Board") using forms provided by the Board and must include the information, records, and documents required by the Board. Application forms may be obtained online from the Michigan Department of Corrections website.
Section 44 of the Corrections Code sets forth a detailed framework that must be followed by the Board in considering all applications for pardons and commutations, including those initiated by the Board itself. For example, within 60 days of initiating or receiving such an application, the Board must conduct an initial review to determine whether the application for a pardon or commutation has merit.
The Board has the exclusive statutory duty to transmit its formal recommendation to the Governor as to the merit of an application.
A clemency review may be initiated by an Application for Pardon or Commutation of Sentence submitted by a prisoner or by someone on his or her behalf, or by an Application for Pardon after Parole or Discharge submitted by an individual who has completed his or her sentence. Any clemency reviews other than by application must be initiated by the Board. If denied, an application may be resubmitted two years after the date on which the Board received the previously denied application. Unless there has been a substantial change in circumstances, an application resubmitted before that time will be returned without action. The Board's decision to initiate a commutation review is within the Board's discretion and may include, but not be limited to, circumstances in which a prisoner has a deteriorating and/or terminal medical condition from which he or she is not likely to recover.
Parole Board Process
All clemency applications are forwarded to the Parole Board for review. The Board will conduct an initial review to determine if it has interest in proceeding to a public hearing. If there is not majority interest in doing so, the application and any supporting documentation is simply forwarded to the Governor with the Board's recommendation that the application should be denied. If there is an initial majority interest in considering a public hearing, it triggers a detailed statutory process.
Following the Board's referral of a case to a public hearing, the Board must, by statute, follow certain notification and scheduling requirements. First, the Board must send out notices of the potential public hearing to the sentencing or successor judge and prosecutor, allowing 30 days for their comments and/or objections. At the expiration of that 30-day period, the Board will review any information received and decide whether to remove the case from the public hearing process or proceed to a public hearing. If there is still interest in proceeding to a public hearing, the Board must then provide a 30 day notice of the public hearing to the same judge and prosecutor, the Governor, the Attorney General, all registered victims, and the prisoner/petitioner. The Board will also publish notice of the public hearing on the MDOC website. The Board may receive and review information and comments submitted by crime victims. During that 30 day period, the Board will also commence a parole placement investigation on commutation cases, as well as provide the Attorney General with file materials for review in preparation for the public hearing.
At the public hearing, an Assistant Attorney General, the Board's Chairperson, and any other members of the Board in attendance may question the prisoner or petitioner applicant on all relevant issues. Members of the public, as well as any victim(s) or victim(s)' representative may testify in support of or opposition to the applicant's clemency. The public hearing is recorded and a transcript of the proceeding is completed after the hearing, with a copy submitted to the Attorney General. The case is then referred back to the Board for a final executive meeting where the Board will vote on a recommendation to the Governor, taking into account all information received during the process and the public hearing. After reaching a majority vote, the Board's recommendation and all relevant materials, including the public hearing transcript and other pertinent documents, are delivered to the Office of the Governor.
Final Disposition Process
The Governor and his or her legal staff will review the application materials and the recommendations of the Board to determine whether executive clemency is warranted. The Board will notify the applicant when a final determination is made.
Should the Governor grant a pardon request, the Governor's Office will issue the appropriate pardon documents, file the pardon with the Secretary of State, and notify the Michigan State Police and the applicant. Should the Governor grant a commutation request, thus commuting the prisoner's sentence to a term of years already served, the Board will assume jurisdiction over the case and vote on a parole. All action by the Board in a commutation case must be by majority vote of the 10-member Board. Should the Board by majority vote grant a parole on a commutation case, the parole term would be for a period of four years. Moreover, such a parole release will occur only after a required 28-day notice period, during which the Board will notify the sentencing or successor sentencing judge, prosecutor, and any registered victim(s). However, in the case of a terminally ill prisoner, the Board may seek the consent of the prosecutor, judge, and registered victim(s) to a waiver of both the 30-day notices (for comments/objections and notice of the public hearing) and this 28-day notice of parole release.
