(C) Common Dreams
This story was originally published by Common Dreams and is unaltered.
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board of executive clemency [1]
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Date: 2024-07
Antwan Davis kept calling.
Week after week, he would phone the Board of Executive Clemency, sit through the dull dial tones and inquire about his bid for a pardon.
It had taken Davis more than a decade to assemble his application. He knew he had to bring the board a life to be lauded, a redemption deserving of the state’s highest form of forgiveness.
When he was first arrested, Davis faced 12 years in prison for an armed robbery he did not commit. Davis was driving around with a friend when he grabbed Davis’s gun, hopped out of the car and robbed a man on the street.
As an accomplice, he pleaded down to a non-violent, guilty by association charge: a class 2 felony carrying five years of intensive probation.
Davis finished probation in 2006 and started charting his path to clemency.
He spent hours in the law library at the courthouse. He pulled his own record, learned how to file a motion to reinstate his civil rights, then learned how to refile when it was initially rejected.
Davis went back to school, got a bachelor’s degree, then a master’s degree in public policy. He got married, started a family, cared for his niece and started a company to address gaps he saw during his time working in developmental disability care.
He submitted his application to the board in 2018.
With it, he included the order restoring his civil rights, his fingerprint clearance card, his degrees from ASU, a letter of approval for his company, Beyond Borders, from the Department of Economic Security, an adult development home and foster care license and a personal narrative, titled “The Power of a 2nd Chance,” chronicling his path to where he is now.
He then sent the packet to the board. He called to check on its status until they told him to stop calling. And then he got a call back, and a chance to testify in front of the board.
Davis broke down crying when the majority voted to recommend him.
It is rare for a person to surmount the intensive process for a pardon, let alone receive an affirmative recommendation from the board.
But a recommendation is just that, a recommendation.
The power to grant any kind of clemency lies with the governor.
“They kept saying, ‘if the governor chooses.’ ‘If the governor chooses, then you’ll be notified,’” Davis said. “That’s what took me back, he’s not choosing.”
A recommendation for Davis’s pardon sat on Gov. Doug Ducey’s desk for three years. As of his last day in office, Ducey had only granted one pardon over his two terms.
Ducey marked his own tenure with a commitment to responsible criminal justice reform and rehabilitation.
But when it comes to recommendations from the Board of Executive Clemency, advocates for clemency say the governor fell short in responding to requests for pardons and commutations.
Since 2019, the Board has recommended three pardons, four commutations of sentences and 23 compassionate release commutations for inmates in imminent danger of death.
At the end of his second term, Ducey did not grant Davis’s pardon. Or any other pardon. He granted 15 commutations, all of which were for inmates in imminent danger of death.
The Board of Executive Clemency recommends commutations, pardons and reprieves to the governor and decides whether to grant parole to eligible inmates.
Pardons clear a crime from the record. Commutation reduces the punishment for a crime, often slicing sentences deemed excessive and releasing inmates who are terminally ill.
A reprieve spares a death row inmate from execution, though the board has never sent up such a recommendation.
Commutations are approved by default if the governor does not act for 90 days and the decision by the board is unanimous.
By default, three commutations were granted by lack of action from the governor in his second term.
In Ducey’s first term, he only granted one pardon to a man who stole a motorcycle, and five commutations, four of which were for inmates nearing death. In his second term, he granted 15 commutations, but only for those inmates with terminal illness.
CJ Karamargin, spokesperson for Ducey, said the governor was “discerning and judicious” in his approach to clemency and kept “victims’ rights at the forefront.”
Lindsay Herf, executive director of the Arizona Justice Project, though, noted the layers and layers of vetting done by the board, considering public safety, victims’ testimonies and piles of paperwork detailing sentencing, mitigating circumstances and other factors.
“From my perspective, there is no reason that any of those recommendations should not be granted,” Herf said. “The board has done so much work and has such a high standard and has considered every factor that they can.”
She instead points to the politicization of clemency, perpetuated by both parties, and noted the limits in requiring the signature of a single person.
“It seems more like a selfish or self-serving element, taking a calculation on how the governor thinks he or she will be perceived,” Herf said. “Or maybe, more honestly, it’s really the governor’s own mentality on the issue.”
The limits and politics of clemency are not sequestered to a governor’s signature. The governor appoints members to the board, and the board, in turn, has shouldered some skepticism for its current makeup.
Three of the four sitting board members have a background in law enforcement, which violates a state law requiring “no more than two members from the same professional discipline shall be members of the board at the same time.”
Donna Hamm, of Middle Ground Prison Reform, has sat in hundreds of clemency board hearings over the past few decades. Hamm vouched for the nuance in the board and its members.
“They’re human beings. They have different philosophies. They come from different backgrounds. And their votes are independent of each other,” Hamm said. “There’s absolutely nothing black and white, there’s nothing hard and fast. They take each case individually.”
She instead points to the strain placed on the board with a vacant seat, as well as the procedural changes made to the commutation process to combat a heavy caseload.
For a pardon, a person must fill out an application and then appear for a hearing on direction from the board.
Commutations, though, must first pass through a “phase I” hearing.
In the first phase, the board convenes to review submitted documentation and decides whether to send the application to a second hearing where the board interviews the inmate applying.
Attorneys, family members and supporters used to be able to speak in the phase I hearing. But now they must sit silent.
She said under the new rule barring input from attorneys, family and supporters, a phase I hearing shrunk to about 10 to 15 minutes and now lacks a crucial check.
“The problem is that if they make a mistake, something that’s in the pre-sentence report or in the facts of the case, or anything,” Hamm said. “There’s no one there to correct them, no one’s allowed to speak.”
In 2022, the board held 195 phase I hearings, passed 13 cases to a phase II hearing and recommended five of those cases to the governor.
“What I tell people who are applying for commutation is ‘you are buying a lottery ticket,’” Hamm said. “You can’t win if you don’t play, but your chances of winning are almost nil.”
As the governorship has changed hands this week, proponents want to see more attention, resources and hopefully the fifth and final member appointed to the board. A spokesperson for Gov. Katie Hobbs offered no comment on her approach to clemency at this time.
Herf said the Arizona Justice Project remains hopeful, nonetheless. And she hopes to see a greater importance placed on the power of clemency going forward.
“There’s a lot of opportunity to in a way save somebody’s life,” Herf said. “It’s not asking all that much when the few, the significantly few, cases make it as far as they do.”
Davis, too, knows going in front of the board, let alone receiving a recommendation for a pardon is rare. He waited years for an answer. It never came.
A pardon would have allowed Davis to enact change from the inside. He got his master’s degree in public policy with the goal of getting a job in government, though he is currently barred because of his felony conviction.
Davis sought his clemency without any guidance. Rebuilding his life took time and incredible hardship. And now, he wants to see structural change. He wants to see substantive support for those who find themselves with a felony.
He wants to see true second chances take shape.
“I found out the hard way that when you have a felony conviction, it’s a set up for failure,” Davis said. “What’s the purpose of a second chance? It has to be more than just getting out of jail.”
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