by Christopher Zoukis
An investigation by the Arizona Republic has exposed a serious problem with life sentences imposed by state courts throughout Arizona since 1994. In the 22 years between January 1994 and January 2016, 248 out of 490 life sentences imposed included the possibility of parole after 25 years – but the Arizona legislature abolished parole in 1994.
This begs the question: How will those 248 prisoners be considered for parole when parole doesn’t exist?
In 1993, the sentence of “life with the chance of parole after 25 years” was eliminated by the Arizona legislature and replaced with “life with the chance of release after 25 years.” According to the Republic, the difference between those two phrases is significant.
Under the old law, prisoners were guaranteed a hearing before the parole board after serving 25 years. The board had the authority to order release or further imprisonment, depending on the prisoner’s situation. Under the new law there is no guaranteed hearing. Prisoners must instead file a petition with the Board of Executive Clemency, which can then recommend a pardon or sentence commutation. But only the governor, in his sole discretion, can grant such clemency applications.
It appears that attorneys and judges across the state didn’t get the memo about the change in the law with respect to life with parole sentences. In at least 248 cases, judges imposed life sentences that included the chance of parole after 25 years; according to the Republic, 90 percent of those sentences were the result of a plea deal.
That means the lion’s share of those prisoners bargained for something they cannot get, and something that judges, prosecutors and defense attorneys should have known they would not receive. Many of the prisoners were unaware of this situation until reporters from the Republic contacted them for comment. Juvenal Arellano, who pleaded guilty to a homicide charge in 2004 in exchange for life with the chance of parole, told reporters that no one said anything about parole not existing when he accepted the plea deal.
“When they sentenced me, they did not say that parole didn’t exist,” said Arellano. “The reason why I signed the contract was for the chance of getting out after 25 years, and that was in the plea I signed.... I am prepared to pay for my error, but neither should they hide something so important from me.”
The state will not be able to uphold its end of the plea bargain in those cases because parole doesn’t exist. Further, the process for providing the “chance of release” under the new law has not yet been defined or authorized.
“Whose problem is it?” asked Board of Executive Clemency director Ellen Kirschbaum. “As the Board of Clemency, we have to stay neutral. We’re a board that follows the law set out for us.”
Board chairman C.T. Wright made the situation clear. “We’re in a precarious situation,” he told the Republic. “We will follow the dictates of the Legislature.”
If the process for prisoners sentenced to life with the possibility of release ultimately mirrors the traditional clemency process, the “chance of release” is illusory, stated Katherine Puzauska with the Sandra Day O’Connor School of Law at Arizona State University.
“If we’re going to use that standard for commutation, it renders release void – because they’re never going to get it,” she said, referring to the extremely low chances of prisoners receiving grants of clemency.
While it remains to be seen how the courts and Arizona lawmakers will resolve this issue, Kathy Brody of the Arizona ACLU suggested that principles of contract law should apply to those who plea bargained for life with the chance of parole.
“It’s a contract. It’s a deal,” Brody said. “How can you say it’s a knowing and voluntary decision [by the defendant] if it’s an incorrect sentence?”
The Arizona Department of Corrections (ADC) apparently attempted to remedy this problem by proposing a policy update, effective April 10, 2017, that would allow parole eligibility for prisoners who have life sentences with a minimum amount of time to serve, such as 25 or 35 years. However, it was questionable whether the ADC could use a policy change to override a decision by the state legislature.
The governor’s office said the intent of the policy update was “to provide additional clarity, not to modify [the] existing statute.”
When asked how the policy change would affect prisoners sentenced to life with the chance of parole, Kirschbaum, the director of the Clemency Board, said: “We’re on hold now.”
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