Opinion
I.D. No. 9510006777.
Submitted: July 28, 2006.
Decided: November 13, 2006.
Robert J. O'Neill, Jr., Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
Mark A. Hamil, Jr., pro se.
ORDER
Upon Defendant's Motion to Compel. Granted.
Defendant, Mark A. Hamil, Jr. ("Mr. Hamil"), filed a Motion to Compel on May 1, 2006. Mr. Hamil argues that this Court should compel the Department of Corrections ("DOC") to conduct a fingerprint analysis of the Defendant, so that he can proceed with his application for pardon. The State argues that Mr. Hamil is a sentenced inmate, and, therefore, cannot seek a pardon. The State further contends that Mr. Hamil must pursue a commutation, which does not require fingerprint analysis. Consequently, the State feels the Court should deny the Defendant's Motion to Compel.For the reasons stated below, the Defendant's Motion to Compel is granted.
Discussion
The Board of Pardons ("The Board") has constitutional authority to make recommendations, to the Governor, for or against an individual's pardon or commutation application. The Governor has the authority to make the final decision but cannot grant a pardon or commutation in the absence of a recommendation to do so by the Board. There is a fundamental distinction in pardons, which remove further punishment and restore civil rights, and commutations, which reduce a sentence while it is being served but may result in the continued confinement of an inmate.
Board of Pardons, at http://www.state.de.us/sos/pardhome.shtml (last visited October 12, 2006).
Id.
Id.
Rules of the Board state that an applicant may file his petition (or "application") personally. The rules speak to the application for reprieve, pardon or commutation of sentence, evidencing that the applicant may apply for any of the three. The Board proffers separate instructions for filing both a pardon and a commutation application. The Board requires the applicant to submit a cover sheet with their petition. The required cover sheet informs the applicant to complete the form and submit it with their petition for "pardon/commutation," further showing an applicant's ability to file either a pardon or a commutation.
Board of Pardons Rule 2(a), at http://www.state.de.us/sos/pardrule.shtml (Last viewed October 12, 2006).
Board of Pardons Rule 2(d), at Id. (Last viewed October 12, 2006).
Board of Pardons Rule 3(b)(3), at Id. (Last viewed October 12, 2006).
Board of Pardons Cover Sheet, at http://www.state.de.us/sos/pardcovr.pdf (Last viewed October 12, 2006).
The Board rules articulate that an applicant must obtain a copy of their criminal history for pardon petitions only. On the other hand, an application for commutation does not require that an applicant obtain a copy of their criminal history. The Board's instructions for filing a petition for pardon also reflects the requirement that an applicant obtain a copy of their criminal history. The State Bureau of Identification will not accept a Delaware criminal history request without a full set of fingerprints, because the procedure provides positive identification and ensures accuracy. Mr. Hamil claims that he made several attempts to get a fingerprint card, and the requests were denied by the Department of Corrections. The Defendant was informed in writing that "DCC will not fingerprint inmates for criminal histories unless so ordered by the Court."
Board of Pardons Rule 3(b)(1), at http://www.state.de.us/sos/pardrule.shtml (Last viewed October 12, 2006).
Id.
Board of Pardons Instructions for Filing a Petition for Pardon, at http://www.state.de.us/sos/pardinst.shtml (Last viewed October 12, 2006).
Defendant's Exhibit A: Letter from the Elizabeth E. Shamany, Director of the State Bureau of Identification.
Defendant's Exhibit B: Letter from T. Martin.
The State argues that Mr. Hamil's Motion to Compel should be denied, because the Defendant is a sentenced inmate and can only pursue a commutation, which does not require fingerprinting. The Board has constitutional authority to make recommendations concerning pardons and commutations, and rules of the Board address both remedies. The Board further proffers separate instructions for filing the two petitions. A pardon removes further punishment and restores civil rights to an individual (the individual is released from confinement), while a commutation reduces an inmate's sentence but does not necessarily release them from confinement. The two options provide different and distinct remedies. An inmate is not required to choose one in lieu of the other. For the reasons stated above, it appears to the Court that an inmate can petition for either a commutation or a pardon, and the State fails to show otherwise. Consequently, a commutation is not the only option a sentenced inmate can pursue, as argued by the State. Mr. Hamil may, therefore, bring a petition for pardon on his own behalf.
The State was asked to provide authority for the proposition that a sentenced inmate cannot seek a pardon, and has not responded to the Court.
An application for pardon expressly requires the applicant to obtain a copy of their criminal history. To obtain a copy of one's criminal history, an individual is required to submit a full set of fingerprints to ensure accuracy. An inmate attempting to file an accurate application for pardon must obtain their criminal history. Consequently, they must be afforded the opportunity to have their fingerprints taken. Mr. Hamil's requests to be fingerprinted have been denied by the DOC, so he has been unable to obtain his criminal history. Therefore, Mr. Hamil should be afforded the opportunity to have his fingerprints taken, so that he can file an accurate petition for pardon.
Based on the foregoing, the Defendant's Motion to Compel is granted. IT IS SO ORDERED.