The Colorado Constitution grants the governor exclusive authority to grant clemency. Clemency can be given in Colorado in one of two ways: commutation or a pardon.
Right now, the process to apply for clemency can be challenging, especially for pro se pardon applicants. Pro se parties, or those who don’t have an attorney to represent them, are steadily becoming a more significant share of individuals in the criminal justice system today.
The steps required for both processes are different and applicants seeking a commutation need to work with a case manager.
Last year, lawmakers passed a bill that would have clarified the process and made it clearer what factors the governor might consider in granting clemency, leaving final authority and open decision making up to the governor. But after the bill cleared both chambers, Gov. Jared Polis vetoed it last May.
Polis said in his veto letter that the new law would have overstepped into a constitutionally protected power vested in the governor. “While the bill is well-intentioned, the Colorado Constitution clearly sets out that the legislature may not prescribe the manner of applying for commutations,” Polis wrote.
Commutation and the Clemency Process in General
Maureen Cain, the policy liaison for the Office of the State Public Defender, said the governor has a special review board to offer advice on applications for clemency.
The steps to apply for clemency can be found on the application form or on the Department of Corrections’ website. But Cain noted that for anyone in the custody of the DOC, a case manager is required to assist in preparing the application for a commutation. Cain explained case managers don’t help with pardon applications.
Cain said the case manager gathers most of the documents required for commutations. The person applying for clemency would fill out the application, write a letter and get any letters of support as needed. All the documents are then sent electronically to Offender Services, an office within the DOC tasked with reviewing and submitting complete applications to the Director of Executive Clemency in the governor’s office for further action.
Executive Director of the nonprofit organization Spero Justice Center Kristen Nelson and Cain agree the process is straightforward and easy to understand. They both noted that where the clemency process loses transparency and clarity is virtually everything that happens after the application is submitted.
Nelson, who represents individuals in postconviction proceedings like clemency, said once the application goes through all the appropriate channels and makes it to the Executive Clemency Advisory Board, no one knows when it’ll be reviewed or when a decision may be made.
“The board meets once every other month in closed proceedings and votes on petitions, and then sends their recommendations to the governor’s office. Once the governor’s office receives the petitions, the governor and his staff conduct their own review,” Nelson noted. “However, the process is all done behind closed doors — even the dates that the Executive Clemency Advisory Board meets are not made publicly available.”
Cain said the only confusing part of the process is that once the application is submitted, there’s no acknowledgment or updates to the applicant. “The person is left confused about when or if they are being reviewed,” she said.
To the extent that the process may be challenging or nearly impossible for pro se parties, Cain explained very few clemency petitions are granted. “So, to that extent, it can be considered ‘impossible.’”
A pro se party may not fully understand the status of their application at any point, according to Nelson. “Those answers are still hard to come by even for advocates, but obviously it is easier for attorneys to make phone calls, send emails and chase down information when necessary,” she explained.
Answers in general about how clemency decisions are made seem to be in short supply.
In December 2021, Gov. Jared Polis commuted the life-plus sentence of Rogel Lazaro Aguilera-Mederos from 110 years in prison to 10 years. Aguilera-Mederos was operating a semitruck on I-70 when his brakes failed and caused a 28-car-pile-up, killing four people in 2019. Aguilera-Mederos passed a runaway truck ramp before hitting other vehicles. Denver District Judge Bruce Jones was required to apply Colorado’s minimum sentencing requirements for all counts.
The commutation came quickly — roughly two weeks after Aguilera-Mederos was sentenced and just two weeks before a resentencing hearing was already scheduled. While advocates against mass incarceration and lengthy prison sentences were pleased with the commutation, it left many scratching their heads.
“The end result, I think, would be up my alley of things that I support,” explained Jamie Ray, an attorney with the Korey Wise Innocence Project. “I think the frustration that came from communities and even being somebody that works in this space is seeing how easy it really is for this to happen, and then having to come back and work with these guys who have been in prison for 35 years jump through these hoops to get that same opportunity. I think that was disappointing.”
Ray added the case shined a light on how the clemency process is unfair to some individuals.
In Aguilera-Mederos’s case, public outcry for the length of the sentence came about swiftly and forcefully. Truckers announced on social media they’d protest the decision by boycotting the state and reality TV royalty Kim Kardashian signed a petition alongside five million others calling for resentencing.
Kardashian, who is a law student in California, tweeted Polis directly about the case around nine days before the commutation was given.
What’s Involved with a Clemency Application
Ray said the process could be unfair to pro se parties too. Colorado has seen a surge in pro se litigants and defendants in recent years with some advocacy groups pointing to the increasing financial burden for individuals to retain an attorney.
Nelson noted there’s no state funding for attorneys in clemency proceedings and Spero is the only nonprofit in the state that provides pro bono legal representation in clemency proceedings. “Very few incarcerated people have the means to hire a lawyer by the time they have exhausted their appeals and are eligible to apply for clemency,” she added.
A drafter of HB23-1214, Ray said pro se parties inside the justice system may not know there are ways to be reassessed to help their chances on their application outside of what’s simply listed as a requirement.
To apply for a commutation, applicants need to attach various assessments including a Colorado Actuarial Risk Assessment Scale assessment, a Level of Supervision Inventory assessment and an Admission Diagnostic Summary assessment.
None of the assessments listed on the application form are spelled out. The form only notes the acronyms for all three assessments required, making it more difficult for a pro se party to understand what they need to provide or be reassessed for, even with the help of a case manager.
Most of the assessments focus on recidivism risk and general risk of public safety should the individual be pardoned or released. But Ray noted the assessments are problematic in several ways, most notably that they’re outdated and no one is tasked with updating them on a regular basis.
Alongside a personal letter explaining to the governor why they should be released, commutation applicants also need to attach medical reports; reports of any disciplinary actions or sanctions; any pre-sentence investigation reports, arrest affidavits or offense reports; detainer or notification requests or other similarly relevant law enforcement communications; and a summary commute application/waiver, which is provided by Offender Services to include time calculations.
Applicants can also submit any additional documentation they think could help the governor make an informed decision.
Ray said applicants who have an attorney get a slight advantage because they have a more informed advocate to help them. For example, she noted that, as an attorney, she knows the applications go to a specific person in the executive clemency office and she can call that person to be sure things are moving along.
Nelson said that, in one of the clemency applications she handled, the materials were delayed for roughly six months from even leaving the facility her client was in. While she noted it all worked out in the end, she explained, “That entire experience was frustrating, and resulted in an almost six-month delay from the time I submitted my client’s materials until the time it was actually forwarded out of the facility.”
To apply for a pardon, applicants need to provide federal and state tax return transcripts and their employment verification for the past five years, paystubs from the past three months, five letters of reference, reports from a community parole officer or probation officer addressing adjustment to community placement, any discharge documents, a color photocopy of their driver’s license and their current FBI record or arrest record.
Pardon applicants also need to write a letter explaining why they should be granted clemency, attach a completed fingerprint card and, like commutation applicants, they can also provide any other documents they think would help their case.
Nationally, there are two other types of clemency: reprieve and remission. A reprieve temporarily delays the carrying out of a sentence and remission conditionally reduces or eliminates a portion of a sentence like a fine or forfeiture.
Ray said that historically, Colorado also offered reprieve but stopped using it after the state abolished capital punishment.
Possible Reforms
While the OSPD doesn’t represent anyone applying for clemency, Cain noted recent statutory changes authorize the office’s liaison to assist in clemency applications. She added the office is currently working on a self-help guide to help individuals prepare clemency applications and that OSPD hopes to work with nonprofits and private lawyers to refer some cases.
Cain said OSPD supports some transparency around the clemency process. “Offenders report not knowing what is happening with their applications and this creates frustration. HB23-1214 attempted to address some of the concerns voiced by incarcerated persons,” she added.
She explained OSPD doesn’t want rigid timing or process rules to eliminate anyone from consideration for clemency.
Ray said policy advocates and the groups involved in drafting HB23-1214 hope to bring the bill back in the future under a different administration.
In terms of how Polis handles clemencies in comparison to other governors, Ray thinks he does a better job than most even after the somewhat controversial veto of HB23-1214. “The reason that I say that is because before Polis, we would always see governors that would give commutation their last term,” Ray explained. “So if they’re running for two terms, the end of that eight years, we would see them give a handful of clemencies out.”
Polis has handed out clemencies every December since he’s been in office. “One, it just shows [the] inconsistencies between governors and they’re able to do this whenever. Two, I always want to give credit where credit’s due,” Ray said.
Polis’s office declined to provide any comments for this article. Law Week was also unable to reach former Gov. John Hickenlooper for comment about clemency.