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The parole paradox [1]

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Date: 2024-07-01  

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“I don’t ever want to appear that I am not responsible for my actions,” she said tearfully. “In my mind, I’m not innocent.”

Shannon spent 26 years in prison for first-degree murder, though she didn’t actually kill anyone herself.

She was 24. It was March 1996, and she was living in an abandoned apartment in Gilbert with two other meth addicts. Erin, the other woman who lived there, had had a dalliance with a man. To cover her transgressions, she told her boyfriend, Mark, that the man had tried to rape her — and he should be taught a lesson.

So, she invited him over, and the plan was for Mark to take his gun and “scare” the man. Shannon talked Erin and Mark out of taking the gun, and suggested instead that they threaten him with a baseball bat. When Shannon and Mark walked into the bedroom, the victim was face down on the bed, and Erin was straddling him and giving him a massage.

The sound of the baseball bat striking his skull still echoes in Shannon’s head. She ran out of the apartment.

“I should have called 911, but I didn’t,” she says now. “And I think about it every day.”

After Shannon left, Erin put a plastic bag over the man’s battered head and suffocated him. Shannon walked around town, wondering if she should call the police. People stared at her, and she realized she had peed her pants. When Erin called her to say the man was dead, she returned to the apartment. She watched as they carried his body downstairs wrapped in sleeping bags. She fell asleep in the car as they drove to an industrial area where they dumped the body.

After they returned to the apartment, she went out and wandered some more, trying to think of what to do, until a car pulled up, a man jumped out and asked her name, and then told her she was under arrest for murder.

“Thank you,” she said.

The three roommates had separate adjudications. Erin pleaded to second-degree murder in exchange for her testimony. Mark, the bat wielder, went to trial and a jury also found him guilty of second-degree murder. They received 21- and 22-year sentences, respectively. Shannon refused to testify, with the understanding from her attorney that she, too, would be found guilty of a lesser offense.

But even though she had had the smallest part in the killing, she had the worst outcome. The jury found her guilty of first-degree felony murder, meaning she was participating in a crime when someone else died. She was sentenced to 25 years to life in prison, with the overt understanding that she would be eligible for parole after those 25 years. The paperwork filled out by the judge simply said, “25 years,” and that’s what went into her time-computation record at the Arizona Department of Corrections.

The only problem: the sentence didn’t exist.

Purging parole

Parole was eliminated in 1993 as part of a Republican push called “Truth in Sentencing,” which swept through the country like a peristaltic wave and restructured criminal punishment.

For the most part, getting rid of parole didn’t matter. Sentences were pre-determined for most crimes, taking away judges’ discretion, and the defendants could get time off for good behavior. But where the “truth” failed was in what are called indeterminate sentences.

Until then, the sentencing options for first-degree murder were death and life, with the latter meaning that you spent at least 25 years in prison and then could be considered — but not guaranteed — parole. In 1993, Arizona, like other states, added another option, natural life, otherwise known as life without the possibility of parole. Those people would die in prison.

The death penalty was supposed to be reserved for the worst of the worst murders, according to an old justice system cliche. Natural life was pretty damn bad. And 25 to life was a “mitigated” sentence, saved mostly for cases you never heard of. Maybe it was a plea deal in return for testimony.

Mostly, the sentence was imposed for desperate acts by desperate people in desperate neighborhoods: A theft, a robbery, a fight, fueled by drugs or debt or testosterone. Just being with the wrong person — a dirtbag boyfriend, maybe — at the wrong time. No one was supposed to be killed. But it happened.

And that’s why it ended in a mitigated sentence: not a death sentence, not natural life, but 25 years to life, hinting that, maybe, if you didn’t get in any more trouble while in prison, you might get to see your family again. You might get to work again. You might get to be a normal person again.

Except you probably wouldn’t.

When the legislature rewrote the statutes and eliminated parole, they forgot — or didn’t care to come up with — a mechanism to potentially release those defendants sentenced to 25 to life. Parole was like an alarm clock that rang once you served those mandatory years. Then you had a hearing before an independent parole board that had the authority to release you under set conditions.

With the 1993 rewrite of the criminal code, the parole board became the Arizona Board of Executive Clemency. It would still consider parole for persons sentenced before 1994. But those 25-to-life sentences imposed after January 1, 1994 were only eligible for release if the person found a lawyer (not so easy for prisoners without money, which is most of them) to take it before two phases of clemency hearings and hope the board recommended a pardon or commutation. Then, only the governor could grant release — an unlikelihood in a tough-on-crime state.

So that so-called mitigated sentence amounted instead to a de-facto natural-life sentence.

But that was mostly theoretical. Astonishingly, no one in the criminal justice system paid attention. The word “parole” was still bandied about in court to the point where judges, attorneys and prosecutors acted as if it still existed. Defense attorneys promised it to clients. It appeared in the court record on plea agreements and minute entries, which are the judge’s written records of judicial proceedings. The defendants went off to prison thinking they would one day be eligible for parole. And because none of these 25-year eligibilities would come due until 2019, at the earliest, nobody even remembered.

Except for the people who received the sentences.

If the judge didn’t say ‘parole,’ would I be sitting here with a new wife and a baby on the way? No. I’m dying in prison — over a word. One word. – Christian, who was able to fight for parole from a prison sentence

I had been covering the courts for The Arizona Republic newspaper for 13 years when an attorney-friend mentioned the “open secret” among defense attorneys that there was no parole eligibility. I didn’t believe it, because I heard the word almost daily in court and had witnessed criminals receive the sentence. But it was true.

I asked the Arizona Department of Corrections for a list of 25-to-life inmates sentenced after 1994. There were about 500 of them. I went through the minute entries for their sentences and found that half of them, more than 250, had the word “parole” on them.

I wrote to the prisoners involved in some of those cases and got letters back asking what the hell I was talking about. They expected to someday be released on parole.

I asked people in the legal system what could be done. The former executive director and the chairman of the clemency board both told me the solution was to pass legislation to reinstate parole. The Maricopa County attorney at the time, Bill Montgomery, who is now a state supreme court justice, told me that the sentences just needed to be changed by the courts.

In March 2017, a five-part series with my findings was published. I included letters from the prisoners who had written me back.

After the series ran, some judges I knew stopped speaking to me. It doesn’t matter what minute entries say, they told me. All that matters is what is pronounced on the record during court proceedings.

But within months, prosecutors had lobbied the Arizona Legislature to rewrite the law to grant parole hearings to those defendants who had signed plea agreements in which prosecutors agreed to parole eligibility. The legislature had already been forced to restore parole eligibility for juvenile killers because of a 2013 U.S. Supreme Court decision.

But the rest of the men and women who received mitigated life sentences and expected to someday get back to their families and their lives? A month after my series, they received word from the Arizona Department of Corrections, then under Director Charles Ryan, that parole had never been an option.

And when , in 2019, three prisoners with 25-to-life sentences actually were granted parole — by accident — the Department of Corrections stepped in and stopped their release, setting off a civil lawsuit that wasn’t settled until the Katie Hobbs administration.

Shannon and other parolees I interviewed asked that I not use their last names because they now have jobs and lives and don’t want to stir up trouble for themselves or their employers.

Likewise, some government officials refused to speak on the record about the parole paradox. It’s embarrassing. Unexplainable. They wish it would just go away, and to some extent it has already been re-forgotten.

But Shannon read my article in prison when it came out in 2017, got a photocopy and showed it around to everyone she knew. It was a revelation. Her time computation, the department record showing when she would be released, which once said 25 years, had been changed to 999 years. What did that even mean? There was no answer. When she complained to her prison counselor, the counselor wrote the word “parole” on a sticky note, stuck it to Shannon’s forehead and said, “Look at this when you feel bad.”

The fight for promised parole

Arizona prisoner Abelardo Chaparro received the same message. He was serving a life sentence because, in 1996, he shot a former friend to death in a convenience store in Phoenix. He claimed self-defense, but he was found guilty of first-degree murder.

A year later, the judge in his case sentenced him to natural life without possibility of parole for 25 years, which was not only invalid but a contradiction of terms. Five months later, however, the judge corrected the sentence to life with a chance of parole after 25 years. It was still an invalid sentence under the statutes, but neither Chaparro nor the judge realized that.

Then, in April 2017, a month after my Arizona Republic series, corrections officials told him he was not parole eligible.

Chaparro started writing letters and filing motions in court on his own behalf. When he filed a petition for post-conviction relief in Maricopa County Superior Court, he was appointed an attorney. That attorney reached out to the Arizona Justice Project, a non-profit law clinic that represents those who have been unfairly convicted. Its principal attorneys, Lindsay Herf and Katie Puzauskas, were already working on the parole issue when I first wrote about it in 2017.

The Superior Court judge took interest in the case, but decided it wasn’t ripe yet, as Chaparro had not yet been in prison for 25 years.

Herf and Puzauskas took Chaparro’s case to federal court, and a judge asked why the state wouldn’t relent. Those prisoners who had signed plea agreements stipulating to parole were being certified for parole hearings. Why not prisoners whose judges had done the same? Was this a question of equal treatment under the law that the federal court should take on?

The ruling concluded that, if the Arizona Supreme Court determined Chaparro was parole eligible, there would be no need to further consider constitutional challenges.

So, Chaparro’s case bounced back to the Arizona Supreme Court with a strong suggestion from the federal court. (Montgomery recused himself, presumably because his office defended the appeal while he was county attorney). Attorneys for the state argued that Chaparro was not entitled to parole, and that everyone used the word “parole” as shorthand for “release” or “commutation.” There had already been — and there continue to be — cases in which prosecutors argued that everyone used the word “parole” when they didn’t mean parole, and therefore the defendant could not seek relief for ineffective assistance of counsel.

The Supreme Court justices, however, went to the dictionary and pointed out the distinct definitions of the words. Besides, the state had had 25 years to correct an erroneous sentence and had not done so. The key was in the trial transcript, which would show the intent of the sentencing judge.

Chaparro got a parole hearing. He got parole. And a precedent was set — but only for those prisoners who could document that parole was offered or discussed during trial proceedings.

It wasn’t going to be easy, however.

“How are people in prison supposed to get these documents, understand these issues and advocate for themselves?” Puzauskas asked.

Without an attorney, they can’t.

“The problem is with how to apply Chaparro,” a state prosecutor who would only speak anonymously told me. “It turns on what the judge meant at the time.”

Shannon embarked on her own letter-writing campaign. She also applied to the Justice Project and was accepted as a client.

Justice Project attorneys and paralegals culled transcripts and highlighted the discussions of parole. They took those to the Maricopa County Attorney’s Office and got the case prosecutor and the head of the office’s appeals unit to sign off. They took the supporting evidence back to the Department of Corrections.

Shannon would get a parole hearing in February 2022.

Word got around about the hearing at Perryville prison, where Shannon was incarcerated. Shannon reported to an administrative office for her Zoom interview with the clemency board — which converts to a parole board when needed — and her friends gathered outside at a smoking area in the yard where they could see her through a window.

When the parole board told her she would go free, emotion welled up inside her. She turned to the window. She put on a sad face and shook her head “no” as a prank to her waiting friends. Then she raised her arms triumphantly in a two fisted salute of victory. Her friends cheered. And when she went outside they surrounded and hugged her.

Weeks later, after the paperwork was done, she waited by the exit door until she was allowed to leave. Herf still has video on her phone of Shannon carrying a box of her belongings and running to where her mother and brother were waiting by a car.

But not everyone who is certified for a parole hearing actually gets parole.

In June, I attended a parole hearing for a prisoner named Phillip. I sat in a small gallery at the downtown offices of the Arizona Board of Executive Clemency, watching three of the board’s five members interviewing Phillip, who appeared on a closed-circuit TV screen from prison.

He had been an angry 19-year-old with a gun in South Phoenix when he committed his crime in August 1996. He wanted a pizza and didn’t want to pay for it, he explained. So, he ordered one to an address that wasn’t his. And when the pizza arrived, he demanded the driver give him the pizza and his money. When the delivery man balked, Phillip shot him in the head.

“I guess I was too young in my mind to appreciate the life of another human being,” he told the board. He promised that he had changed.

Phillip had good references from his supervisors in prison. He had taken college courses and job training while there. But the board noted that he had a few incidents in prison, like fighting, that happened in the year since his last hearing. And though I can’t say what the clemency board members were thinking, his affect seemed so flat and cold to me that it was easy to imagine the hardened kid who shot a man to death 28 years ago. The board denied him parole this year.

But at least he had a hearing.

Known unknowns, but no will to figure them out

In 2023, The AZ Justice Project included its own findings as to mitigated life sentences as part of an amicus brief for a case before the Arizona Supreme Court regarding a prisoner questioning his attorney’s competence in advising him about parole. (The court side-stepped the issue, incidentally — how could it be ineffective assistance of counsel when everyone was doing it? — and sent the case back to trial court to look into a plea deal that may have been proffered.)

Their findings were not significantly different from what I found in 2017. According to the Justice Project brief, there had been 607 mitigated life sentences imposed since January 1, 1994. Of those, 51% had the word “parole” in their minute entries. And in 35% of the cases, the wording of the trial transcripts for the sentencing hearing did not match the wording on the minute entries. None of the minute entries mentioned the state statute that eliminated parole.

How many of those prisoners were eventually certified for parole eligibility, received hearings or were paroled is hard to tell.

The Arizona Board of Executive Clemency tabulates hearings and releases and paroles and revocations and pardons. But which of those come from post-1994 life sentences is buried in the data.

According to the Clemency Board, the Justice Project and the former prisoners, the Arizona Department of Corrections handles sentence tabulation — how long a prisoner has left on a sentence — and the department also “certifies” who is eligible for parole. The captions on Chaparro’s lawsuits demanding certification bore the names of former corrections directors Charles Ryan and David Shinn.

In early June, I filed a public records request with Corrections for numbers of parole certifications issued in post-1994 cases and prisoners released since the Chaparro case. As of publication, I have only received automated responses acknowledging receipt of the request. The current Corrections director, Ryan Thornell, declined an interview, and an email from his media department referred me back to the Clemency Board.

Sources familiar with the Clemency Board process say that such certifications come up suddenly and parole hearings are requested with urgency, suggesting difficulty in keeping track.

And the prisoners who manage to find attorneys tend to be highly motivated jailhouse lawyers who know what to ask for and do it persistently.

“One by one, people are getting certified; case by case and getting out,” said Karen Smith of the Justice Project. The clinic doesn’t have numbers, either.

What of the rest of the people sentenced to 25 years to life, the other 300 or so cases in which the word “parole” was never uttered, cases just as ugly or less ugly than those that were granted parole? They have no options available to them at all short of legislation to restore parole eligibility in murder cases. And that is not equal treatment under the law.

“I don’t have an opinion on how to fix the problem,” said Gretchen McClennon Singh, chair of the Arizona Board of Executive Clemency. “Whatever the legislature decides, we will follow. But we would like some clarity.”

Earlier this year, Representative David Marshall, a Republican from Snowflake, sponsored House Bill 2883 to restore parole eligibility in mitigated murder sentences. The changes needed to amend the law and give relief to hundreds of prisoners were small, amounting to replacing three lines and a half-dozen small words in the existing statute.

The bill died a quiet death, never getting a committee hearing. Marshall also did not respond to multiple requests for comment.

“In all of these cases, judges had an option to give natural life or 25 to life,” said Herf.

Some will get relief because a judge or prosecutor screwed up. The rest will not — unless the legislature acts.

“It comes down to a fairness bill,” Herf said.

As opposed to a parsing of words.

‘One word’

In 1995, Christian was 24, a carpenter living in Wickenburg, and engaged to be married. And one summer day he went fishing in Sedona with his fiancée’s brother. They drank as they fished at Slide Rock, afterward stopping at a bar in Sedona to drink some more.

After a while, Christian said he wanted to leave. But his fiancée’s brother wanted to play pool, and besides, the brother had already given money to a man in the bar who was going to score him some weed. Christian persisted, and said he’d ask the dealer to give the money back. The dealer told Christian they should meet in the mens’ bathroom, which made sense, rather than exchange money in front of everyone.

Christian remembers the walk down the long narrow hall to the bathroom where the man was waiting.

But when he got there, the man accosted him. “I’m going to kill you,” Christian claims he said. And then the man’s partner came up behind Christian and jostled him.

Christian pulled out his fishing knife and pushed it against the first man. And when the man pushed back, Christian stabbed him, then wrestled with the other before bolting for the parking lot where his fiancée’s brother was already in the car. They drove off, but were arrested minutes later.

Christian’s defense attorney bargained with prosecutors. There were plea offers on the table: one for 10 years, another for seven years. The worst sentence if he went to trial, he was told, would be 25 years, flat time, a tacit understanding of parole. Christian turned down the pleas, figuring the jury would believe he acted in self-defense and acquit him. He was wrong.

Christian was found guilty of first-degree murder. The judge sentenced him to life without a possibility of release for 25 years, exactly what Arizona statutes called for.

But Christian’s defense attorney had described it as 25 years flat. That is what it said on his time computation records at the Department of Corrections, and that is what Christian believed for the next 25 years. He had a firm release date, or so he thought.

But when he asked about his impending release in 2021, he was told he wasn’t entitled to one. And now his time computation said 107 years, which made no sense.

Christian was imprisoned in the same unit as Abelardo Chaparro, and Chaparro taught Christian how to file in the courts on his own behalf. And he found his way to the Justice Project.

The Arizona Court of Appeals turned down his claims about the sentence, using the same language the courts used with Chaparro, but with the opposite meaning: He had had more than 20 years to claim his sentence was incorrect. He should have acted earlier.

The secret to his release lay in the transcripts. The Justice Project attorneys found the word “parole,” even if the judge had only used it once, conflating it with the word “release.”

Christian was paroled in July 2023.

He got a good job. He got married two weeks before our meeting in June. His wife sat next to him as we spoke. He was clearly a happy man.

“If the judge didn’t say ‘parole,’ would I be sitting here with a new wife and a baby on the way?” he asked.

“No. I’m dying in prison — over a word.”

“One word.”

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