Mesa lawmaker leads charge to strip governor of commutation power - East Valley Tribune: Arizona

Mesa lawmaker leads charge to strip governor of commutation power

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Posted: Saturday, January 22, 2011 2:26 pm | Updated: 10:29 pm, Mon Jan 24, 2011.

Led by a Mesa Republican, a bipartisan group of lawmakers is moving to strip the governor of the power to commute the sentences of felons.

But Rep. Cecil Ash said his aim is not to keep more people behind bars. In fact, he said, it's the reverse: He thinks there are people locked up now who should not be there.

The plan, HCR 2025, would give the final say on who gets let out to the five-member Board of Executive Clemency.

Right now the panel can only make recommendations. It is the governor who gets the last word.

That last word, said Ash, is more often than not "no.''

Records bear that out: In the last dozen years, through three governors, 85 requests have been granted and 394 denied.

Ash said he believes it's not necessarily because these people do not deserve to have their sentences effectively reduced to the time they have served. Instead, he said, another factor enters the equation, one he said should not be there.

"Politicians have to run for reelection,'' he said. "And sometimes their judgment is tainted by the political considerations.''

Ash, an attorney and former public defender, said that governors in Arizona and across the nation used to exercise their right to grant clemency "very regularly.

"And then you had the problem with (Michael) Dukakis and the Willie Horton thing,'' he said.

Dukakis, who was governor of Massachusetts, found his 1988 presidential campaign hobbled after it was revealed that Horton, a convicted murderer, had not come back from a weekend furlough -- a program Dukakis had helped continue -- when he killed someone else.

More recently, former Arkansas Gov. Mike Huckabee came under scrutiny in connection with a 2009 incident involving a man identified as murdering four police officers in the state of Washington. It turned out that in 2000 Huckabee commuted the man's 35-year prison term for armed robbery.

"To add this political consideration to the decision is something we should relieve the governor of that burden,'' Ash said.

Gov. Jan Brewer, who would be affected by Ash's proposal, said she has not had a chance to review it. But the governor indicated she's at least willing to consider it.

"It is certainly something that would take something off my plate,'' she said.

The governor said, though, that such a change would be only as good as who is on the board.

But Maricopa County Attorney Bill Montgomery said Ash's presumption that the change he wants will remove politics from considerations is "a bit naive.''

"We've seen how political commissions and boards can get,'' he said.

Montgomery also said that he actually sees an advantage in having the governor make that call rather than commissioners who are removed from the election process.

"There's more, relatively speaking, an accountability of the use of that authority with one elected executive than with a board,'' he said.

Ash acknowledged that one reason for the proposal is because he is disappointed with at least one decision by Brewer to deny clemency.

That case involves 75-year-old William Macumber, serving a life term after being convicted in 1974 of a double murder of a young couple in an open desert area of north Scottsdale that had occurred a dozen years earlier.

At least part of the evidence against him was a statement by his estranged wife that he had confessed, though prosecutors said a partial palm print and bullet casings also linked Macumber to the slayings.

The jury, however, did not get to hear another piece of evidence.

Attorney Thomas O'Toole, who was representing another man in 1967 accused of a double homicide, said his client told him he also had killed this particular couple. But O'Toole, bound by attorney-client privilege, could not say anything.

He did finally come forward in 1973 after his client was killed in prison, offering to testify on Macumber's behalf. The judge, however, concluded the information was inadmissible as unreliable hearsay.

In August 2009, after reviewing the case, the Board of Executive Clemency unanimously recommended to Brewer than Macumber's sentence be commuted.

In a letter to Brewer, board Chairman Duane Belcher Sr. said Macumber's wife had reason to lie, as they were going through a divorce and fighting for custody of the children. He also said she had access to the palm print and that the testimony linking the bullet casings "was not reliable.''

"Mr. Macumber's case is one in which the power of executive clemency should be used to correct a miscarriage of justice,'' Belcher wrote.

It took Brewer just one sentence to decline the application, giving no reason.

And Brewer, confronted by Macumber's son at a press conference last year, provided no more details when he asked the reason.

"It's an unfortunate situation,'' the governor said.

"I appreciate your concerns,'' she continued. "But I have made my decision and it's final.''

Ash said this case is "a good example of why clemency should be with the executive board.''

The final word on the proposal, though, rests not with the governor but with voters, who would have to approve a change in the Arizona Constitution.


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