Section 1100-01-01-.16 - DUTIES AND PROCEDURES OF BOARD IN EXECUTIVE CLEMENCY MATTERS(1) The Board shall, upon the request of the Governor, consider and make nonbinding recommendations concerning all requests for commutations or pardons. Such recommendations shall be made according to the following procedures: (a) Beginning Steps of Clemency Procedure. 1. Upon receipt of a request from an offender or his or her attorney for executive clemency consideration, the Board shall respond by sending to the individual making the request an executive clemency application with a cover letter explaining the application procedure. (i) If the Board receives a request for clemency on behalf of an individual by a third party who is not the individual's attorney, the Board shall respond and advise the third party that the person for whom clemency is requested must apply directly to the Board unless that person lacks the competency to apply in his or her own behalf.(ii) Where a request for clemency is referred to the Board from the Governor's office, the Department of Correction, or any other agency, such request shall be handled in the same manner as if the request had been initially addressed to the Board.(b) Pardon Requests. 1. An application for a pardon must be accompanied by information and evidence sufficient to enable the Board to determine whether the applicant is entitled to consideration for a pardon under the Governor's guidelines. If no such information is included in the application or furnished to the Board, the applicant will be advised that the application cannot be processed further until such information is received.2. The Board shall review the application and supporting information and determine whether the applicant should be scheduled for a hearing. The Board's files shall reflect the action of the Board in scheduling the case for a hearing. If the applicant is determined not to be eligible for consideration, he or she shall be advised of this and of the reasons he or she is not eligible for consideration.(c) Commutation Requests. 1. The Board shall review the application and any supporting information and determine whether the applicant falls within the Governor's guidelines and the Board's screening factors, and whether the applicant should be scheduled for a hearing. The Board's files shall reflect the action of the Board in scheduling the case for hearing.2. If the applicant does not fall within the Governor's criteria, the applicant shall be advised as to why he or she is not eligible for consideration and will not be scheduled for a hearing. He or she shall be advised of the date on which he or she will be eligible and may reapply for consideration, provided that none of the Board's screening factors are amended by the Governor to prevent such consideration.(d) General Procedure for Clemency Requests and Hearings.1. All requests for executive clemency shall be responded to in a timely manner. After the application is received, the applicant and his or her attorney shall be advised as to whether the case is to be scheduled for a hearing and the date, time, and place of any hearing. All hearings shall be held promptly following the notice to the applicant and his or her attorney, unless it is continued at the Board's discretion, upon the request of the applicant or his or her attorney, or pending receipt by the Board of essential information. The notice shall advise the applicant that he or she is entitled to appear at the hearing and to present witnesses and other evidence on his or her behalf. Such notice shall also include a description of the type of evidence considered by the Board.2. At the same time that notice is sent to an applicant and his or her attorney, the appropriate Judge and District Attorney General shall be notified that the case has been set for hearing and given the date, time, and place. The notice to the Judge and District Attorney shall indicate that the Board solicits and welcomes their views and recommendations concerning clemency for the applicant.3. The Board's staff may compile any or all of the following information for the Board's consideration at the hearing: (i) A reclassification or parole summary completed by the institutional staff, if the applicant is an inmate;(ii) Information about the facts and circumstances surrounding the offense and conviction. Such information shall be obtained through investigations conducted by a Probation/Parole Officer or other individual designated by the Board;(iii) A psychiatric or psychological evaluation if the applicant is an individual convicted of a sexual offense or sex related crime;(iv) Information about medical, mental and/or family problems or needs obtained through investigation by a Probation/Parole Officer or other individual designated by the Board, if appropriate; and(v) The application, original request, supporting evidence, and any correspondence in the Board's file concerning the application.4. If the applicant is requesting a pardon, the following additional information shall be obtained: (i) Information obtained for FBI and local records checks;(ii) Information regarding recent social history and reputation in the community; and(iii) Information verifying reasons for pardon request.5. Although the Board's staff obtains the above information so that clemency hearings not be completely ex parte in nature, the burden remains on the applicant to establish that he or she is entitled to clemency.6. At a clemency hearing the Board shall consider, but is not limited to, the following factors: (i) The nature of the crime and its severity;(ii) The applicant's institutional record;(iii) The applicant's previous criminal record, if any;(iv) The views of the appropriate trial Judge and the District Attorney General who prosecuted the case;(v) The sentences, ages, and comparative degree of guilt of co-defendants or others involved in the applicant's offense;(vi) The applicant's circumstances if returned to the community;(vii) Any mitigating circumstances surrounding the offense;(viii) The views of the community, victims of the crime or their families, institutional staff, Probation/Parole Officers, or other interested parties; and(ix) Medical and psychiatric evaluations when applicable.7. The Board will inform the applicant and his or her attorney, if present, of its recommendation at the end of the hearing or, in its discretion, will take the case under advisement. In either event, the Board shall advise the applicant that its recommendation to the Governor is non-binding and that the Governor will review any recommendation by the Board.8. The Chair shall designate one member of the Board to write a report to the Governor concerning the case. The report shall include:(i) A brief statement of the reasons for the recommendation;(iii) The views of the various Board Members, if the recommendation is not unanimous; and(iv) The specifics of the recommendation, whether it is a positive or negative one, and if a positive recommendation is made, any terms and conditions recommended by the Board.9. If the Governor has granted a pardon to an applicant who did not previously receive a positive recommendation from the Board, the Board shall conduct an administrative vote at the next scheduled Board Meeting, solely for the purpose of allowing the applicant to seek expungement pursuant to T.C.A. § 40-32-101. The Board shall consider the applicant's case along with the Governor's statements and clemency action. The Board will inform the applicant and his or her attorney prior to the Board meeting that the vote shall occur, and a decision letter shall be sent to the applicant and his or her attorney.(e) Emergency Medical Clemency Requests. In a small percentage of cases, it is necessary and appropriate that the Board consider requests by individuals recommended for clemency by the Department of Correction's medical staff. At times, these individuals may lack competency to apply on their own behalf and the request may be made by the medical staff. These requests are made in unusual or emergency medical situations and may require immediate action by the Board. In such cases, a complete medical report and a detailed statement of the emergency situation will accompany the Board's report to the Governor.(f) As soon as practicable after the Board's clemency recommendation, it shall forward or cause to be forwarded to the appropriate standing committees of the General Assembly, designated by the Speaker of the Senate and the Speaker of the House of Representatives, a written list of the names of all persons receiving both favorable and unfavorable recommendations.(g) The list required by subsection (f) shall also be furnished to the appropriate Attorney General in whose district any such person was convicted.(h) Supervision of Commutees. 1. When the Governor of the State of Tennessee commutes an offender's sentence and makes community supervision a condition of such commutation, TDOC shall assign the commutee a Probation/Parole Officer in the same manner as if the offender had been released on parole.2. If the Probation/Parole Officer supervising such commutee has reasonable cause to believe such person has violated the conditions of his or her commutation, the Officer shall detail the circumstances of the alleged violation in the form of an affidavit and transmit such affidavit to the Director of Probation and Parole. In no event shall the Probation/Parole Officer arrest, detain, or cause the arrest or detention of a commutee unless done on the basis of a warrant from the Governor.3. The Director shall review and shall immediately transmit, in appropriate cases, affidavits received pursuant to this subsection, to the office of the Governor.4. At the request of the Governor, the Board shall conduct a commutation revocation hearing to determine if a commutee has violated the conditions of his or her commutation. The Board will conduct such hearings in the same manner and use the same procedures as parole revocation hearings are conducted pursuant to rule 1100-01-01-.14.5. At the conclusion of the hearing the Board shall transmit the record of such hearing, together with the Board's non-binding findings and recommendations concerning the alleged commutation violation, to the Governor.Tenn. Comp. R. & Regs. 1100-01-01-.16
Original rule filed May 5, 2009; effective September 28, 2009. Repeal and new rules filed December 14, 2018; effective March 14, 2019. Amendments filed December 23, 2019; effective 3/22/2020.Authority: T.C.A. §§ 40-27-101, 40-27-102, 40-27-104, 40-28-104, 40-28-106, 40-28-107, 40-28-114, 40-28-126, and 40-32-101.