As of January 1, 1994, as most of you know, parole was eliminated from Arizona’s criminal code. Instead, that was the year that “truth-in-sentencing” began, and when the law became nicknamed “the 85% rule.” This refers to the fact that if a prisoner is eligible at all for early release, it won’t occur until he/she has served a minimum of (approximately) 85% of the imposed sentence. Of course, this does not apply to those who are sentenced to “flat time,” who must serve each day of each year of the imposed sentence.
And since 1994, small tinkerings have occurred with the sentencing statute which now permit a “transition release” up to 90 days in advance of the 85% date. Temporary Released (TR) was retained in the 1994 code, which permits up to 90 days in advance of the 85% date. A prisoner cannot receive both a TR release and a Transition Release (which would total up to 6 months early release, if granted in full).
When parole was eliminated, it also applied to Life sentences. So, for those convicted in 1/1/94 of first degree murder, and who were not sentenced to death, the sentence choices for a judge were “natural” life (never get out of prison; ever) or “Life with release eligibility after 25 flat calendar years.” The “release eligibility” after 25 years was not actually defined in the statute, and no one paid attention to what process might be followed, since, in 1994, there was nothing to be concerned about for 25 more years . . .
The problem arose when Judges in all counties, including Maricopa, continued to use the term “parole” when sentencing people, as did prosecutors and defense attorneys. Judges continued to tell defendants , “I sentence you to Life with parole after 25 years . . .,” or “I sentence you to Life and you’ll be parole eligible after 25 flat years . . .” And so on. Few Judges, defense attorneys or prosecutors used the correct phrasing — “release eligible” — after 25 years.
What is “release eligible?” Well, the authorities are now saying it is commutation. Of course, commutation is much harder to obtain than parole. A parole hearing is automatically offered to eligible inmates (those serving sentences for crimes committed prior to 1/1/94 who were not given natural life sentences). And only 3 votes of the five-member parole board (now called the Board of Executive Clemency) are required to obtain parole (or home arrest). In order to obtain a commutation of sentence, a prisoner must successfully pass two hearings at the Board (the first hearing does not even permit the prisoner to participate in any way, except via written application) and then, if he/she successfully navigates the Board, a recommendation is passed along to the Governor’s office. The Board has no legal authority to “grant” a commutation. The Governor has no legal authority to grant a commutation unless a recommendation for it has first been passed along to his office by a vote of the Board. It’s a check and balance system.
So, beginning in 2019, when the first inmate who was convicted of a 1994 murder and who was sentenced to “Life with release eligibility after 25 flat calendar years” becomes eligible for that “release eligibility,” he/she will have to apply for a commutation of sentence. And, given the record of most Governor’s since Rose Mofford (she granted my husband, James Hamm’s, commutation in 1989 for his 1974 crime), obtaining a commutation of sentence is much more difficult than it has been in the past, especially for those convicted of any violent offense. The tide of public opinion is not in favor of releasing violent offenders, even those who have spotless prison records and can demonstrate great strides in personal development and maturity. Last year, for example, Governor Ducey granted one (1) commutation of sentence. Previous Governor’s records, including that of Republicans and Democrat Janet Napolitano, are nearly just as bad.
Michael Kiefer, Arizona Republic Investigative Reporter, recently did extensive research on this issue.
Part I of a 3-Part Series is below. It is an important issue and raises a critical question: For a defendant who entered into a plea bargain, which is essentially a contact with the state, and who was told not only by his defense counsel, but by the sentencing court: “You will be parole eligible after 25 years . . .,” how will this injustice be rectified, especially when the defendant signed the plea due to the inducement of being eligible for “parole” after 25 calendar years?
Check out this story on azcentral.com: http://azc.cc/2najV2q
Donna Leone Hamm, Judge (Ret.)
Director
Middle Ground Prison Reform