State Supreme Court sidesteps issue of inmate pardon

By Cy Ryan

Thursday, Oct. 7, 2010 | 8:55 a.m.

CARSON CITY – The Nevada Supreme Court has sidestepped a thorny constitutional question on commuting the sentence of a prison inmate.

Mark Scott McKinney was convicted in Clark County of multiple counts of robbery involving use of a deadly weapon and was sentenced to 180 years in prison.

His co-defendant was granted a commutation by the state Board of Pardons and made immediately eligible for parole after serving 17 years. Five years later McKinney, now 54, applied to the Pardons Board for a commutation of sentence to be immediately eligible for parole.

The nine-member pardons board includes the governor, attorney general and the seven members of the Nevada Supreme Court.

At the McKinney hearing there were seven members present and the vote was 4-3 to grant the commutation, but it was rejected since the number of affirmative votes wasn't a five-member majority of the full board.

The issue is whether there must be a majority of the full nine-member board to approve an application or whether there has to be only a majority of those present.

The Supreme Court said McKinney used the wrong legal process in submitting his writ. “We conclude that McKinney has not utilized the correct procedural avenue for us to grant him the relief sought,” said the court in refusing to rule on the constitutional issue.

It told McKinney to submit another application to the Pardons Board.

Two justices – Kristina Pickering and James Hardesty – said in a separate decision the court should have tackled the issue.

Pickering said she wasn't convinced by McKinney’s argument that only a majority of those present could vote to commute.

She said, “Nothing suggests empowering a quorum majority to act. This makes sense, given that commutations and pardons are matters of grace, not entitlement.”

But Pickering and Hardesty agreed in the end result in telling McKinney to file another petition with the Pardons Board.