Could some killers get parole?

1st inmates with flawed sentences are up in 2019

It was an open secret in the criminal justice system: Prosecutors and defense attorneys were negotiating plea deals and judges were imposing sentences offering the possibility of eventual parole to convicted murderers even though parole was abolished in Arizona in 1993.

The first problematic cases of inmates given those sentences come due in 2019. The question is, how should the state handle them if a mechanism for granting parole no longer exists?

Now, after an Arizona Republic series brought the secret to public attention in March, state prosecutors, corrections officials and Arizona Supreme Court staff are quietly talking about solutions.

One proposal would amend state law to again allow parole for some murderers.

The sentence of “life with a chance of parole after 25 years” was a mitigated sentence — that is to say, a lesser sentence than death or natural life in prison. It was one that was imposed after a defendant’s youth or other mitigating circumstances were taken into account.

But the Arizona Legislature threw out parole in 1993 while enacting a series of tough-on-crime statutes. It replaced the life-with-parole sentence with one that granted eligibility for “release” after 25 years.

Both sentences were usually referred to in courthouse shorthand as “25-to-life,” and the terms “parole” and “release” are still frequently conflated during legal discussions.

But they are very different.

The parole option granted prisoners who had served 25 years an automatic hearing in front of a parole board, which had the authority to grant freedom to those inmates it deemed were no longer a threat to society.

Release, however, requires a prisoner to file a formal petition with the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of a sentence to the governor. The governor must make the decision.

It became a political decision rather than an evaluation of an inmate’s behavior and rehabilitation. And though the first of the life-with-chance-of-release sentences will not come due until 2019, state and federal appeals courts have already deemed the idea of release as “illusory,” and tantamount to a natural life sentence.

In fiscal 2017, for example, the Board of Executive Clemency held 280 “Phase I,” or preliminary, hearings for

“Giving people the chance for release does not mean they will be released.” Katherine Puzauskas Worked with the Justice Project

commuting sentences. Only one of them was passed on to Phase II.

Over the same period, the board held 27 Phase II hearings and passed only four of them to the governor for action.

Similarly, the clemency board held 14 pardon hearings and sent just one recommendation to the governor.

After those five recommendations, Gov. Doug Ducey granted just one of the commutations, in a case where the prisoner was close to death.

Some responses quieter than others

The Republic built a database of life sentences from lists obtained from the Arizona Department of Corrections and other sources, and then removed those inmates 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.

The response from prison inmates was immediate. Dozens wrote to The Republic, expressing surprise and dismay that the parole hearings they were promised might never happen. And many new cases that were not in the Republic database came to light.

The response from the criminal justice system was silence. But there were conversations behind closed doors.

Two weeks after the series was published, the Department of Corrections published an updated department order on its “Inmate 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 the new 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.”

But the Department of Corrections doesn’t really have the authority to grant parole hearings that are not permitted by state law.

Daniel Ruiz, a spokesman from Gov. Doug Ducey’s office, said at the time, “Thank you for your coverage of this very important issue. We are monitoring this very closely and working with our agencies toward a resolution and possible remedies that would provide necessary direction in administering these matters.

“As it relates to your question about ADC’s proposed amendment to administrative code, the intent is to provide additional clarity, not to modify existing statute.”

‘A problem that needs a solution’

Not surprisingly, defense attorneys advocate for restoring parole eligibility.

“Everyone involved in the criminal justice system in Arizona knows that this is a problem that needs a solution,” said Amy Kalman, president of Arizona Attorneys for Criminal Justice, a defense attorneys’ association. “This problem could easily be fixed through legislation. Otherwise, it will have to be addressed through litigation, which will be much more expensive and time consuming for all involved.”

Lindsay Herf of the Arizona Justice Project said, “People who were sentenced to life with the possibility of parole or release are legally entitled to have parole hearings.”

However, Maricopa County Attorney Bill Montgomery told a Republic reporter and an editor that the series was “hooey” and that the parole sentences were unimportant distinctions.

Representatives of the court system said it didn’t matter what it said in the published minute entries, which are a judge’s memorializing of a verdict. What mattered was what was said in court, which would mean finding transcripts of old cases.

Nonetheless, the Arizona Supreme Court asked staff to review the matter, and they contacted county prosecutors to research the question inasmuch as it related to people who had entered into plea agreements with prosecutors that stipulated that they would be eligible for parole after 25 years.

Plea agreements, after all, are contracts. The Republic series identified at least 90 such agreements. Former Maricopa County Superior Court Judge Ronald Reinstein, who now works as a consultant for the Arizona Supreme Court, said that statewide, his inquiry had turned up about 50 plea agreements that stipulated to a chance of parole after 25 years. The majority of them were from Maricopa County.

Efforts to find transcripts to check what the attorneys and judges had discussed at sentencing were often unsuccessful, he said.

The options for those cases, Reinstein pointed out, are to handle them case by case in post-conviction relief hearings, or for state lawmakers to come up with some kind of legislation to fix the problem.

“The court won’t get involved in that,” Reinstein said of the latter.

But in September, an attorney from the Pima County Attorney’s Office brought a proposal to that month’s meeting of Arizona Prosecuting Attorneys’ Advisory Council.

Kathleen Mayer, that office’s legislative liaison, proposed a revision to the statutes also granting parole hearings to all 25-to-life inmates.

“There are many perspectives on this depending on what aspect you are looking at — past plea agreements versus judges’ orders are just one,” she said in an email to The Republic. “I think this is the easiest and best approach.”

Under fire from U.S. Supreme Court

The Pima County proposal actually was a rewrite of a change the Legislature already made on behalf of people who were sentenced to 25-to-life for murders they committed while they were juveniles. The change came after U.S. Supreme Court decisions opined that Arizona statutes did not meet that court’s orders forbidding mandatory natural life sentences for juvenile offenders.

Rather than parse words, the 2014 legislation made all of the juvenile 25-to-lifers eligible for parole, which is what the Pima County proposal would do for adult offenders.

The lack of parole for adults has come under fire from the U.S. Supreme Court, specifically a case in which the high court threw out a death sentence because the jury had not been informed that there was no parole in Arizona, which could lead the jurors to fear that they had to impose death to ensure that the defendant never got out of prison.

Since that decision, the Arizona Supreme Court has tossed out at least two death sentences, including one last month, because prosecutors had implied “future dangerousness” of defendants.

Idea is advancing

No legislator had yet been found who would propose the statutory revision granting parole to all 25-to-lifers. But the idea is moving forward.

“The county attorneys have committed to getting legislation to solve the problem,” Mayer said. “We are in the midst, now, of drafting language.”

Mayer said there was no discord among the prosecutors on the matter.

There will doubtless be debate from the hard-liners as to the scope of changes.

“Just to be clear, this change would affect a very finite group,” said Amanda Jacinto, a spokeswoman for the Maricopa County attorney. “And this is something prosecutors are working together on.“

When reminded that the initial proposal was not aimed at a finite group, she responded, “It’s important to note this is just a start . ... Again, the conversations have focused on a limited population.”

Katherine Puzauskas, who worked with the Justice Project on granting parole hearings for juvenile 25-to-lifers, said, “We have a vague statute.”

“Giving people the chance for release does not mean they will be released,” she said.

Nor does giving them a chance for parole mean they will actually get parole.

In fiscal 2017, the Board of Clemency held 23 general parole/absolute discharge hearings for an unspecified range of crimes.

It granted parole to one prisoner.