D.C. Mun. Regs. tit. 1, r. 1-705

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 1-705 - REVIEW OF APPLICATIONS

705.1

(a) Upon receipt of an application, OGC shall conduct a preliminary review of the application to determine whether the application is complete, and whether the applicant is eligible for a letter of recommendation under the Clemency Act.

(b) If an application is missing required or otherwise necessary information or documentation, OGC may promptly send a letter to the applicant requesting that information or documentation. If OGC does not hear from the applicant within three (3) months after sending the letter requesting the additional information or documentation, OGC will send a second letter requesting the information or document. If the applicant fails to respond to the second letter within three (3) months, the Board may deem the application incomplete and close the application.

(c) If the applicant is not eligible for a letter of recommendation under the Clemency Act, the Board shall send a letter to the applicant informing them of their ineligibility and provide information on how to reapply if they do become eligible. The application will then be closed.

(d) The Board may authorize OGC to send notices to an applicant if:

(1) An application is incomplete or complete;

(2) An application is being closed or deferred; or

(3) The applicant is ineligible according to the Clemency Act.

(e) If the application is complete, and the applicant is deemed eligible, the Board shall decide, within six (6) months after receiving a complete application, whether to recommend the applicant for clemency to the President of the United States in accordance with section 203(b)(2) of the Clemency Act (D.C. Official Code § 24-481.03(b)(2)) .

(f) The Board may deem an application incomplete and defer it, thereby extending the six (6) month decision period if the Board lacks sufficient information to form a recommendation, such as when a request for background information is delayed, or when a hearing could not be scheduled timely for reasons outside the Board's control.

(g) An application to the Board may be closed, complete, deferred, denied, or granted, as follows:

(1) The Board may close an application if it deems the application incomplete because the application is missing necessary supporting documents that the applicant has failed to provide within six (6) months after applying as required by § 705.1(b), or if it deems the applicant ineligible based on the eligibility criteria set forth under section 205(c) and (d) of the Clemency Act (D.C. Official Code § 24-481.05(c) & (d)).

(A) The closure of an application is not a denial of the application.

(B) An applicant whose application has been closed may subsequently reapply if the applicant provides the documents necessary to complete the application or has become eligible.

(2) An application is complete if the application form and releases required by 704.2 are fully filled out by the applicant, and the application contains all the necessary information and documentation for the Board to consider when deciding whether to issue a letter of recommendation for clemency. The relevant information and documentation the Board may need to evaluate an application may include information or documents collected from law enforcement agencies, the courts, and the applicant.

(3) An application is deferred if:

(A) The application is kept open because the Board has determined that the applicant will need more time to provide supporting documentation; or

(B) A hearing was needed but, for logistical or substantive reasons, the hearing was not able to be scheduled within the six (6) month time frame to process an application.

(4) An application is denied if the Board, after review, has decided not to provide a letter of recommendation for clemency to the applicant. Denied applicants may reapply for a letter of recommendation from the Board two (2) years after receiving a denial.

(5) An application is granted if the Board after review decides to provide a letter recommending the applicant for clemency. A granted application is not a grant for a pardon or commutation; it is a grant only for a letter of recommendation from the Board.

705.2

(a) Pursuant to section 205(c) of the Clemency Act (D.C. Official Code § 24-481.05(c)) , a person seeking a letter of recommendation for a pardon must:

(1) Wait five (5) years after the date of the release of the applicant from confinement or, in case no prison sentence was imposed, wait five (5) years after the date of the conviction of the applicant;

(2) Not have been convicted of any other criminal offense that is relevant to the conviction for which the applicant seeks the pardon, as determined by the Board;

(3) Not be subject to any pending criminal charge that is relevant to the conviction for which the applicant seeks the pardon, as determined by the Board;

(4) Not be a party to a past or pending civil case that is relevant to the conviction for which the applicant seeks the pardon, as determined by the Board;

(5) Demonstrate that the applicant has been rehabilitated; and

(6) Describe how the receipt of a pardon would help the applicant achieve his or her goals and contribute to the community.

(b) Pursuant to section 205(d) of the Clemency Act (D.C. Official Code § 24-481.05(d)) , persons seeking a letter of recommendation for a commutation must:

(1) Demonstrate that the applicant has been rehabilitated; and

(2) Describe how commutation would help the applicant achieve his or her goals and contribute to the community.

705.3

(a) In considering applications for letters of recommendations for clemency, the Board shall consider both cases of actual innocence and cases of those who are remorseful and can show they have been rehabilitated in accordance with section 203 (b)(3) of the Clemency Act (D.C. Official Code § 24-481.03(b)(3)) . The Board may also evaluate applications for letters of recommendation based on other criteria, including the standards outlined in DOJ's Justice Manual, DOJ's policies and priorities, and/or clemency-related initiatives of the President of the United States, the Mayor of the District of Columbia, or other interested institutions.

(b) Applicants who are terminally ill or elderly, or who no longer present a danger to the community shall receive special consideration in accordance with section 203(b)(4) of the Clemency Act (D.C. Official Code § 24-481.03(b)(4)) .

(c) Applicants shall receive special consideration if the sentencing scheme, including a mandatory-minimum sentence, for the offense for which they were convicted was changed to provide for less severe penalties after the applicant was convicted under the sentencing scheme, in accordance with section 204(e) of the Clemency Act (D.C. Official Code § 24-481.05(e)) .

705.4

To the extent consistent with the Clemency Act and other District law, the Board may prioritize applications for review according to the priorities or initiatives outlined above, or in the order in which applications are filed or completed, or some combination of both, or may prioritize applications of a particular type if it so chooses. The Board may authorize OGC to prioritize the applications under any criteria identified by the Board.

705.5

The Board need not score, nor award or deduct points for, any particular element of an application. The Board may come to different determinations on applications that by some measures appear similar. The Board may establish procedures for engaging pro bono counsel to review or advise on applications but may not delegate final determinations, except when delegating that authority to OGC to close applications that are incomplete or from persons who are ineligible for a letter of recommendation from the Board.

705.6

(a) The Board may gather facts, hold hearings, and/or invite witnesses when evaluating an application for a letter of recommendation in accordance with D.C. Official Code § 24-481.03(b)(6).

(b) Should a hearing be held, it will be held in closed session, and applicants will be allowed access to their own attorney or nonattorney representative in accordance with section 203(b)(7) of the Clemency Act (D.C. Official Code § 24-481.03(b)(7)) .

(1) Notice of each hearing shall be given at least ninety (90) days before the hearing if feasible and will be sent to the applicant and the applicant's attorney or non-attorney representative, if any.

(2) Each notice of the hearing shall contain:

(A) The date, time and location for the hearing (including for hearings conducted by video or teleconference); and

(B) The process for an applicant to inform the Board of a need to reschedule the hearing.

(c) In lieu of a hearing, the Board may send written questions to the applicant to provide additional information for the Board to consider.

(d) The Board may grant or deny applications for letters of recommendation without a hearing.

(e) The Board will not provide counsel to applicants nor will the Board or the District pay for counsel for applicants.

705.7

The Board shall grant, defer, or deny applications for letters of recommendation by a majority vote of the members present and voting. A Board member who in their professional or personal capacity has previous involvement with an applicant's case must recuse themselves from voting on the application but may discuss cases or provide information known to them, consistent with their office's policies, conflicts of interest rules, and any applicable ethical or professional standards.

705.8

When the Board votes to recommend an application to the President of the United States, the Board shall:

(a) Send the application, along with a finalized letter describing why the Board recommended the person for clemency, and any supporting documents, to the President of the United States and DOJ-Pardon through the Mayor's correspondence unit or similar process. If certain supporting documentation cannot be further transmitted consistent with obligations to protect confidentiality, the Board may make arrangements for in camera viewing of such documentation where possible, legally and logistically. The Board may delegate any letter writing to OGC and the Board Chairperson may edit or sign any letter without further obtaining a majority vote on the letter itself.

(b) Provide notification, to include the applicant's name, to the Chairman of the Council and the chairperson of the Council committee with jurisdiction over judiciary matters in accordance with section 203(b)(8)(B) (D.C. Official Code § 24-481.03(b)(8) (B)) .

705.9

Applicants shall be provided notice of final decisions. Decisions by the Board and the Mayor on whether to issue, or not issue, a letter of recommendation for clemency are not subject to any administrative or judicial review-these decisions are expressly committed to the discretion of the Board and the Mayor. Further, the basis and conclusions for these decisions are also not subject to any administrative or judicial review.

705.10

Applicants may reapply to the Board for a letter of recommendation starting two (2) years after the date of any denial of a previous application.

D.C. Mun. Regs. tit. 1, r. 1-705

Final Rulemaking published at 68 DCR 13812 (12/24/2021)