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March 19, 2017

Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state

The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts: 

Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.

We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....

Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.

The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.

Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician.  But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. 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.

No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing.  He found out when he received a letter last December from The Republic.  He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...

Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years.  The sentence has not existed since the law was changed in 1993.  But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.

Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it.  He took the issue to the Arizona Supreme Court, which oversees all state courts.

Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”

Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides.  “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence.  “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...

Several prisoners contacted by The Republic were unaware they were not really eligible for parole.  “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic.  Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get 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.”...

Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.

Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death.  Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.

The two sentences sound very similar.  And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result.  But they are substantially different.  Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner.  It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison.  And if denied, the prisoner could re-apply after six months to a year.

But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those.   In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019.  But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.

March 19, 2017 at 05:36 PM | Permalink


Just when I thought Texas was pulling ahead again in the derp wars AZ uncorks this humdinger.

"We don’t want to go back to the public and say we paved the way to letting go a murderer.”

But that is exactly what they did. How can anyone say the state bargained in good faith when it bargained for a sentence that was legally impossible? And if the state bargained in bad faith the state doesn't get the advantage of its bad acts so what other choice is there but to let them go after 25 years? Well, OK, this is AZ we are talking about so that means anything is possible so long as it offends decency and common sense.

Posted by: Daniel | Mar 19, 2017 8:55:26 PM

Strong argument here for due process violation and remedy of specific performance or something close to it . See Buckley v. Terhune 441 F.3d 688 (9th Cir. 2006)(en banc)(where state breached plea agreement, remedy here is specific performance and state sentence must impose bargained-for sentence of 15 years even if such a sentence is illegal under state law).

Posted by: Michael R. Levine | Mar 20, 2017 12:06:50 AM

Convene a "parole board" and deny parole. Problem solved.

Posted by: federalist | Mar 20, 2017 9:42:31 AM


Well they could do that but the problem is that the executive has no legal power to do so absent the legislature approval and it remains to be seen if the legislature is going to do that. The legislature has no incentive to fix a problem that the other two branches created. Why should it get its hands dirty? Don't give me any lip about the best interests of society or some crap--this is AZ we are talking about.

Posted by: Daniel | Mar 20, 2017 5:57:04 PM

Think creatively---parole is discretionary--and while there is a backdoor constitutional definition of parole eligibility (i.e., because the LWOP for juvies makes an issue of the identity of the person which has discretion), the governor could convene a board to recommend "parole."

Posted by: federalist | Mar 20, 2017 6:11:06 PM

Given Buckley v. Terhune above, cited by Mr. Levine, and given the breach of the plea agreement, see Santobello v. New York, I would have no problem in ordering the release of Mr. Valdez and the others in his situation. The Arizona legislature would change the law in a flash. A deal is a deal.

Posted by: Sarah | Mar 21, 2017 9:51:27 AM

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