By: Megan Ealick
Beginning in the 1970s, the United States underwent 30 years of increasingly restrictive prison sentencing reforms. The “war on drugs” and mounting pressure for longer, more uniform prison sentences resulted in a widespread “tough on crime” attitude that rippled across the country. During this time, federal grant programs were established to encourage states to increase prison sentences. The U.S. Congress also authorized funding for more prisons and jails through the Violent Crime Control and Law Enforcement Act of 1994 to accommodate for the growing number of people serving longer prison sentences.
Caught up in the inertia of the times, Arizona Legislature passed its “truth-in-sentencing” law in 1994. This law required offenders to serve 85% of their prison sentences. It also abolished parole for all offenses committed on or after January 1, 1994. The benefits of harsh truth-in-sentencing laws have been the subject of critical review. However, Arizona faced a unique problem when this law went into effect: Prosecutors, defense attorneys, and judges missed the memo.
A 2017 study by The Republic discovered that out of a sample of 500 cases, at least 248 people imprisoned in Arizona were given illegally lenient sentences of life with a chance of parole after 25 or 35 years between January 1994 and January 2016—when parole no longer existed. There is no clear answer for why this happened. Governor Doug Ducey voiced his bafflement about this issue, writing, “[F]or reasons unknown, prosecutors continued to offer parole in plea agreements and judges continued to accept such plea offers as well as impose sentences of life with the chance of parole.”
For eighteen years after parole was abolished in Arizona, the legislature and criminal justice system did nothing to address hundreds of illegally lenient sentences. It finally took a Supreme Court decision for a small subset of affected individuals in Arizona’s prisons to receive what they were promised—a meaningful chance at release after 25 to 35 years. In 2012, The Supreme Court ruled in Miller v. Alabama that mandatory life sentences without the possibility of parole for juvenile offenders violated the Eighth Amendment of the U.S. Constitution[1]. After this ruling, 73 people who were sentenced to life without the possibility of parole or who were given illegally lenient sentences as juveniles obtained the opportunity to have a parole hearing.
Additionally, in 2018, the Arizona Legislature reinstated parole for people convicted of murder who took plea agreements after January 1994 where parole was erroneously offered as part of the deal. Lindsay Herf of the Arizona Justice Project and Katherine Puzauskas of the Post-Conviction Clinic at the Sandra Day O’Connor School of Law at Arizona State University said in a joint statement to The Republic that the bill was a “step in the right direction in providing these individuals the sentence that was promised by the state and which the judge imposed,” but still left “hundreds of individuals with uncertainty.”
The individuals left without a statutory solution were principally those who took their chances with a jury trial and were given sentences that promised or implied the possibility of parole. For example, Venus Lopez was sentenced after her trial to “life with eligibility of parole after 25 years” for a crime committed in 2000. At the time of her sentencing, Venus did not know that parole no longer existed. Nevada Freeman was certified for parole in 2019 after serving his 1994 sentence of “25 calendar years without possibility of release until those years have been served.” [2] The Arizona Department of Corrections attempted to rescind its grant of parole shortly before Nevada was going to be released because his sentence was illegal.[3] In 2021, the Arizona Court of Appeals granted a preliminary injunction in favor of Nevada’s release on parole, but his fate is still uncertain as the Arizona Supreme Court is currently reviewing his case. [4]
The confusion around the truth-in-sentencing law and illegally lenient sentences have heartbreaking consequences for these individuals and their families. Venus Lopez told The Republic, “I know it is difficult to get people to care, after all, we made some really bad decisions. It doesn’t mean the justice system should be allowed to perpetuate the practice of revenge or disregard the essence of what justice is . . . .”
Currently, there are only two paths forward for those given illegally lenient sentences after a trial. The first is for each individual to petition the Board of Executive Clemency with the hope that a hearing will be granted, that a unanimous recommendation for commutation will be sent to the governor, and that the governor will grant executive clemency—a wildly unlikely outcome. In his first term, Governor Doug Ducey only granted 1 pardon.
The second option is for each affected individual to file suit in Arizona’s courts. Although success is not guaranteed, Abelardo Chaparro’s case has helped to pave the way. On March 5, 2020, the Arizona Supreme Court held that Abelardo Chaparro was eligible for parole after serving 25 years according to his illegally lenient sentence, which was final under Arizona law because the State failed to file a timely appeal to correct the sentence.[5] At the time of the Court’s decision, an estimated 290 people in Arizona’s prisons had similar sentences where this rule could be applied. Those affected could litigate one by one, but lawsuits at this scale could potentially cost Arizona taxpayers millions of dollars in litigation fees. There would also be monetary and social costs resulting from the continued incarceration of affected individuals as they wait for their cases to make their way through Arizona’s court system. Ultimately, these individuals are left with no good options to enforce the sentences they were given after their trials.
Although Arizona’s truth-in-sentencing law created a legal mess, the situation is not without hope. Arizona needs a legislative fix to reinstate parole and uphold its end of the bargain. An attempt at a legislative remedy in the form of HB 2791 was introduced in February 2022, but it stalled in the House after a second reading. Sponsored by Representatives Domingo Degrazia, Richard Andrade, and Pamela Hannley, the bill proposed that all people with indeterminate life sentences, regardless of whether they were sentenced after January 1994, should be given an opportunity for parole after they complete their minimum sentence. This is the legislative fix that Arizona needs. It is also the right thing to do. A failure to honor the sentences made to hundreds of individuals, most of whom are now stationed to be incarcerated indefinitely, is a failure of Arizona’s criminal justice system.
[1] Miller v. Alabama, 567 U.S. 460 (2012).
[2] Shinn v. Arizona Bd. of Executive Clemency, No. 1 CA-CV 20-0617, 2021 WL 4859688 (Ariz. Ct. App. Oct. 19, 2021).
[3] Id.
[4] See id.
[5] Chaparro v. Shinn, 459 P.3d 50 (Ariz. 2020).
Megan graduated from the University of Arizona with a B.A. in Anthropology and master’s degreee in Public Administration. She is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests include civil rights, criminal justice reform, and social justice issues. Outside of law school, Megan enjoys spending time with friends and family, discovering new restaurants, and playing tennis.
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