DAR File No. 32065

Pardons (Board Of), Administration

R671-312

Commutation Hearings for Death Penalty Cases

NOTICE OF PROPOSED RULE

DAR File No.: 32065
Filed: 10/16/2008, 03:25
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R671-312 outlines Board procedure regarding commutation hearings for death penalty cases.

Summary of the rule or change:

The changes in this rule clarify dates, time lines, and Board procedure regarding commutation hearings for death penalty cases. Most of the changes are syntax-related.

State statutory or constitutional authorization for this rule:

Section 77-19-7 and Art VII, Sec 12

Anticipated cost or savings to:

the state budget:

None--The changes do not introduce costs or savings as the changes relate to clarification of dates and time lines, as well as wording changes.

local governments:

None--The changes do not introduce costs or savings as the changes relate to clarification of dates and time lines, as well as wording changes.

small businesses and persons other than businesses:

None--The changes do not introduce costs or savings as the changes relate to clarification of dates and time lines, as well as wording changes.

Compliance costs for affected persons:

None--The changes do not introduce costs or savings as the changes relate to clarification of dates and time lines, as well as wording changes.

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

It has been determined that there is no fiscal impact on business associated with this amendment. Curtis Garner, 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)
Administration
448 E 6400 S
SALT LAKE CITY UT 84107-8530

Direct questions regarding this rule to:

Megan Flox-Lambert at the above address, by phone at 801-261-6456, by FAX at 801-261-6448, or by Internet E-mail at mflox@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:

12/15/2008

This rule may become effective on:

12/22/2008

Authorized by:

Curtis L Garner, Chairman

R671. Pardons (Board of), Administration.

R671-312. Commutation Hearings for Death Penalty Cases.

R671-312-1. Applicability of Rules to Petitioners.

[The limitations on the authority of the Board that are imposed by Utah Code Ann. Section 77-27-5 (Supp. 1994) do not apply to a commutation proceeding pertinent to any person sentenced to the death penalty before April 27, 1992. ]Procedures applicable to commutation[ hearings of pre-April 27, 1992, death penalty inmates] petitions for any person sentenced to the death penalty prior to April 26, 1992, will be governed by [Section]Rule R671-312-2. Procedures applicable to [be used in the ]commutation [hearing of]petitions for any person sentenced to the death penalty after April 26, 1992, [are]will be governed by [Section]Rule R671-312-3.

 

R671-312-2. Commutation Procedures Applicable to [Inmates]Persons Sentenced to Death Before April [27]26, 1992.

(1) A person sentenced to death, or his counsel, may file a petition for commutation [may be filed anytime]no later than seven days after the sentencing court has issued [an order of]a judgment of death or a warrant of execution after completion of the [inmate's]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 [inmate shall file his]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[ new] execution date. The [inmate]petitioner or his counsel shall mail a copy of the petition, by [U.S.]United States Mail, postage prepaid, to the [attorney representing the state]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 [shall]may continue and the Board [shall]may render its decision in accordance with this rule.

[(2)](4) The petition shall include:

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

(b) a statement of the reasons [why the]or grounds which petitioner believes support the commutation of the death sentence[ of death should be commuted];

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

[(3)](5) If the petitioner previously received a commutation hearing, the petition [will]shall include a statement reciting what, if any, new[ and] significant and previously unavailable information exists [currently]which supports commutation and [why]the reasons this [the ]information requires a new hearing.

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

[(5)](7) Within seven days of receiving the petition, the State of Utah[ will have an opportunity to respond], by and through the Attorney General or his designee, shall file a response to the petition with the Board. The [Attorney General or County Attorney shall send]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 [that he]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 [s]State to provide additional information.

[(6)](8) [The day after receiving the state's response, the Board will hold a pre-hearing conference to limit the number of witnesses that each side calls, clarify the issues that will be addressed, and take whatever]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.

[(7)](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 [inmate]petitioner, the [inmate's representative]petitioner's attorney, or the [s]State's [representative]attorney. The role of the [s]State's [representative]attorney is limited to rebutting the petitioner's claim and otherwise assisting the Board [to determine]in determining all facts relevant to the inquiry. The Rules of Evidence do not apply to the commutation hearing.

[(8)](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) [Rule R672-302]Administrative Rule R671-302 "News Media and Public Access to Hearings" will govern media and public access to the hearing.

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

[(9)](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 [27]26, 1992.

(1) [A petition for commutation may be filed anytime after the sentencing court has issued an order of execution after completion of the inmate'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. The inmate shall file his petition no later than 23 days before the scheduled execution date and shall mail a copy by U.S. Mail, postage prepaid, to the attorney representing the state.]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 [will]may terminate. If the execution date is stayed during the commutation hearing, the hearing will continue and the Board [will]may render its decision in accordance with this rule.

[(2)](4) The petition shall include:

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

(b) a statement of the reasons [why the]or grounds which petitioner believes [the sentence of death is not appropriate due to the specific circumstances pertinent to him]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.

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

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

[(e)](f) a statement, if legal or constitutional reasons for commutation are claimed, [a statement explaining why]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.[; and]

[(f)](5) [if]If petitioner [has received one]previously received a commutation hearing, the petition shall [include a statement explaining]set forth what, if any, new[ and] significant and previously unavailable information exists [that justifies a second hearing; and]which supports commutation and the reasons this information requires a new hearing.

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

](6) Within seven days of receiving the petition, the State of Utah, by and through the Attorney General [or County Attorney]or his designee shall [provide to the Board and the petitioner copies of all written evidence, names of witnesses, and summary of anticipated testimony. The Board may request additional information from either side]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.

[(3)](7) If the Board believes that it cannot consider the claims pursuant to Utah Code Ann. Section 77-27-5.5, it [will]shall deny the petition[ for a hearing, determining that it does not present a substantial issue].

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

[(4)](9) If the Board [grants the petition]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.

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

[(7)](11) [The day after receiving the state's response]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 [limit the number of witnesses that each side calls]identify and set the witnesses to be called, clarify the issues [that will]to be addressed, and take [whatever]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).

[(8)](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 [inmate, the inmate's representative]petitioner, the petitioner's attorney, and the [state's representative]State's attorney. The role of the [State's representative]State's attorney is limited to challenge the petitioner's right to a commutation hearing and rebutting petitioner's claim[ that his sentence should be commuted] and otherwise assisting the [b]Board [to determine]in determining all facts relevant to the inquiry[ and petitioner's claims]. The Rules of Evidence do not apply to the commutation hearing.

[(9)](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 [R672]R671-302 "News Media and Public Access to Hearings" will govern media and public access to the hearing.

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

[(10)](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: [November 19, 2003]2009

Notice of Continuation: August 14, 2008

Authorizing, and Implemented or Interpreted Law: 77-19-7; Art VII, Sec 12