Parole hasn’t existed in Arizona since 1994. Even if a judge’s sentence includes parole, it still won’t happen. Yet since then, hundreds of defendants have been sentenced to life with chance of parole.
From 1994 through 2016, Superior Court judges in Arizona sentenced hundreds of murderers, conspirators and child rapists to life with a chance of parole after 25 or 35 years.
Unfortunately for them, parole was abolished by the Arizona State Legislature as of January 1994. The sentence has not existed for 23 years.
But a policy update, newly published by the Arizona Department of Corrections and signed by Director Charles Ryan, amends an order on prisoner-release eligibility by seemingly restoring parole for them, effective April 10.
SPECIAL REPORT: Life with parole, a Republic investigation
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The department’s order manual was updated to note that inmates sentenced since 1994 are barred from parole except those given a life sentence with a minimum amount of time to serve, “i.e. 25 or 35 years.”
No one in state government seemed able to offer an explanation by Thursday as to whether an executive decision by a department director can remedy two decades of apparent mistakes in the sentencing process — and undo a statute passed by the state Legislature.
The Governor’s Office, in a statement from policy adviser Daniel Ruiz, called the amended policy “proposed” and said “the intent is to provide additional clarity, not to modify existing statute.”
A spokesman for the Corrections Department said he would look into the matter. The Arizona Attorney General’s Office did not respond to a query Thursday.
The Arizona Board of Executive Clemency, which handles parole hearings for prisoners sentenced before 1994, was surprised and referred the matter to its in-house counsel, according to that board’s executive director, Ellen Kirschbaum.
“We just became aware of it,” she told The Arizona Republic. “This is not the board’s policy and we are not in a position to answer any questions.”
Under law, there’s no parole
Parole was abolished for all crimes in 1993 as part of a series of laws called “Truth in Sentencing,” championed by former Gov. J. Fife Symington III. It went into effect the next January.
But as The Republic reported this month, judges continued to impose sentences of life with the chance of parole, prosecutors kept offering plea agreements promising parole hearings and defense attorneys seemingly kept counseling their clients to accept them.
At present, there are three possible sentencing options for first-degree murder in Arizona: “Death,” “natural life” (which means the defendant can never be released) and “life,” which, according to the statute, holds a possibility of release after 25 or 35 years, depending on whether the victim was an adult or a child.
Life sentences can also be imposed on people convicted of conspiracy to commit murder or sexual conduct with a minor.
When the law was changed in 1993, the Legislature did not establish a mechanism for release, and the first of the cases will not come due until 2019.
Whereas parole could be granted unilaterally by a parole board, release can only be granted by the governor after a recommendation from the Clemency Board established by law in 1993.
Yet The Republic identified hundreds of Arizona prison inmates sentenced to life with chance of “parole” instead of the legally correct sentence of life with a chance of “release” after 25 or 35 years.
The Republic built a database of life sentences from lists obtained from the state Corrections Department and other sources, then removed those who had so many consecutive sentences that they would have no reasonable expectation of leaving prison. The final list had 490 names. Of those, 248, or 51 percent, were given sentences offering parole according to the minute entries documenting their sentencing hearings.
Parole, though, would be contrary to what is allowed in the statutes.
Since the series was published, lawyers, prisoner-advocate groups and relatives of Arizona prison inmates have contacted The Republic about even more cases where defendants received life with parole sentences, indicating the problem is much greater.
The Department of Corrections has now published an update of “Department Order 1002,” a document called the “Inmate Release Eligibility System.”
In earlier versions, the document stated, “Inmates whose date of offense is on or after January 1, 1994 shall not be eligible for: Parole. Work Furlough. Home Arrest. Discretionary Release. Provisional Release. Mandatory Release.” That document was last dated January 2003.
It’s unclear when the new version was published, but it notes an effective date of April 10, 2017.
In this version, the policy adds in bold type to show that it has been edited: “Parole. With the exception of those inmates who were sentenced to Life with a minimum number of years to serve (i.e., 25 or 35 years). Inmates with a Natural Life are not eligible, unless otherwise permitted per statute.”
The order appears to apply to all people sentenced to life with chance of parole or chance of release, which in court parlance is referred to as “25 to life.” People who committed crimes as juveniles have already been promised relief by a U.S. Supreme Court decision that prompted the Arizona Legislature to reinstate parole for those prisoners.
What happens to the rest remains to be seen. Judges and attorneys interviewed by The Republic for the series posited that those defendants who entered into plea agreements promising a parole hearing had the strongest legal case. The others who were sentenced to life with parole after a trial had less of a chance, the experts said.
The amended order implies that all “25 to lifers” would be afforded a parole hearing — which goes counter to the law on the books.
“We’re on hold now,” said Clemency Board Director Kirschbaum when asked what happens next.
Meanwhile, there are at least 490 people in Arizona who are sentenced to life in limbo.
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