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The Indy Explains: Question 3, changing Nevada’s pardons and sentence commutations process

Riley Snyder
Riley Snyder
Election 2020Indy Explainers
Guards walk inside High Desert State Prison as seen on Friday, Jan. 4, 2019.

Formal name: State Board of Pardons Commissioners Amendment

Type of measure: Legislative resolution to amend the Nevada Constitution

Summary of what it does: Since Nevada’s Constitution was adopted in 1864, the document has granted the governor, attorney general and members of the state Supreme Court the power to “remit fines and forfeitures,” “commute punishments” and “grant pardons, after convictions.”

This pardon power has limitations; it requires the governor to be on the prevailing side and limits any sentence commutation for the death penalty or life imprisonment. It also can’t grant pardons in cases of treason or impeachment.

Unlike the president’s pardon power, a pardon in Nevada does not seal criminal records or effectively erase a past criminal conviction. Instead, it “removes all disabilities resulting from conviction thereof.” As the state Board of Pardon Commissioners says on its website: “A pardon forgives but does not forget.”

Once inmates are released from incarceration, Nevada law (as of 2019) restores to them the right to vote, but certain other civil rights such as gun ownership or ability to serve on a jury cannot be restored unless they are granted a pardon.

In practice, this power is executed by the State Board of Pardon Commissioners, which is cited and has some of its other practices and functions outlined in state law, including a requirement to meet at least twice a year. 

If approved by voters, Question 3 would make several constitutional changes affecting the Board of Pardon Commissioners.

In addition to actually naming the board in the Constitution, the amendment would require the board to meet quarterly, and allow any member of the board to bring items forward for consideration (as opposed to just the governor). It also removes the requirement that the governor be part of the majority for any decision made by the board, removing that effective veto power.

Pardons board secretary Denise Davis told lawmakers in 2019 that the board averages between 10 to 15 applications pardon applications per year and another four to five requests from current inmates for sentence commutations.

Pardon applications can either come from a form on the pardons website, or be submitted to the board by one of the nine members. Pardon applications don’t just automatically go to the board; the Division of Parole and Probation conducts an investigation into the individual and produces a packet of information for board members to consider. 

Investigations take about a month each, but pardons officials told lawmakers in 2019 that the number of pardon requests has increased significantly in recent years, with a backlog at the time of about 200 pending applications. Davis told lawmakers that the process of an application being submitted and an investigation being completed can take up to two years.

What have other states done?: According to the Restoration of Rights Project, which tracks state policies on pardons, Nevada is one of four states (along with Florida, Minnesota, and Nebraska) that has a “shared power” pardon administration board with the governor serving on the board itself. 

Minnesota and Florida both require the governor to be part of the majority decision to grant a pardon, while Nebraska only requires a simple majority vote with or without the governor’s approval.

Six states have an independent pardons board, with another 22 — including Nevada — operating under a shared power system, where the governor and some kind of state board or agency work together to make decisions about pardons. Another 29 states have permissive consultation systems, where governors can grant pardons with or without consulting with a separate pardons board.

The Restoration of Rights Project considers Nevada to be in a group of 17 states with frequent and regular use of pardon powers, meaning they both have an established pardons process and a significant number of applications for a pardon are granted.

Arguments for passing Question 3: Backers of the ballot question (in a digest submitted to the secretary of state’s office) say that the changes in Question 3 will allow the Board of Pardons Commissioners to process its work “in a more timely and efficient manner.”

Backers say that in six of the last ten years, the pardons board has only met once during the calendar year, creating a backlog of applications for pardons and sentence commutations. Requiring the board to meet quarterly would allow for a more timely processing of those applications.

Removing the power of the governor to veto applications would also make the board more democratic and allow pardons to be granted based on the “collective wisdom” of the board, as opposed to just relying on the whims of the governor.

“The measure gives the ability for the Board members to schedule a case they feel has merit,” state Sen. James Ohrenschall said during a hearing on the measure last year. “If members know the governor believes the case does not have merit, the case rarely gets scheduled because it seems pointless.”

Arguments against passing Question 3: Opponents say (in a digest submitted to the secretary of state’s office) that requiring the board to meet quarterly may be inefficient, as it may have to meet even if there is a lack of qualified applicants.

They also say that as the chief executive of the state, the governor should be afforded the right to block decisions by the pardons board to grant clemency. They also say allowing other members of the board to propose matters “diminishes the Governor’s constitutional power and ability to act in the best interest of justice and fairness.”

“I am wondering why we would remove the veto power when he has the veto power to stop any one of our bills going through from the Legislative Branch, the second highest elected body,” Assemblyman Jim Wheeler said during a hearing on the bill in 2017. “Why would we take that power away from him?”

How Question 3 qualified for the ballot: What eventually became Question 3 on the 2020 ballot started out in the 2017 Legislature, where a quartet of Democratic lawmakers (David Parks, Tick Segerblom, Mark Manendo and James Ohrenshall) introduced the proposed constitutional change as Senate Joint Resolution 1.

As originally drafted, the measure would have replaced the Board of Pardons with a separate Clemency Board, with members appointed by the governor and other elected officials while fulfilling the same role of reviewing applications and granting pardons. A similar measure was introduced in the 2009 Legislature, but died after not coming back up for a vote in the 2011 Legislature.

But SJR1 was later amended to the current version, which keeps the current pardons board structure in place with several changes; bill sponsor Sen. David Parks said that was the wish of the seven members of the Nevada Supreme Court.

The resolution ultimately passed unanimously out of the Senate and on a 33-8 vote in the Assembly in 2017. It was approved again in the 2019 Legislature, passing unanimously in the Senate and on a 37-2 vote in the Assembly.

Primary funders: No political action committees or groups supporting or opposing this ballot measure have been formed.

Financial impact: A Legislative Counsel Bureau fiscal analysis of the ballot question found that adoption would likely cost the state possibly up to a quarter million dollars a year, because of more meetings and additional staff needed to process an expanded workload.

The ballot question’s requirement that the Board of Pardon Commissioners meet quarterly will likely increase the base cost of holding meetings, as the board previously only met once or twice a year. Fiscal analysts said the average cost to hold a meeting, based on historical expenses, is around $4,250.

The state’s Division of Parole and Probation, which provides staff support to the board, also indicated to fiscal analysts that the expected increased workload — both through the additional meetings and allowing any member of the board to bring matters for consideration — would require an additional two staff members to handle caseload (at a cost of $175,000 per fiscal year) and an administrative position, costing $65,000 per fiscal year.

Status: If approved by a majority of voters, the language in Question 3 will become part of Nevada’s Constitution on Nov. 24.


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