State Sentencing and Parity Review Study Committee final report

              STATE SENTENCING AND PARITY REVIEW STUDY COMMITTEE FINAL REPORT

STATE SENTENCING AND PARITY REVIEW STUDY COMMITTEE FINAL REPORT

ESTABLISHMENT The s t a t e sentencing and p a r i t y review study committee was e s t a b l i s h e d i n Laws 1993, chapter 255, s e c t i o n 96. The committee was e s t a b l i s h e d t o do t h e f o l l owing*:

1.

Study t h e issue o f p a r i t y review, i n c l u d i n g t h e a p p r o p r i a t e scope o f c a t e g o r i e s t o which p a r i t y review should be appl i e d and an a p p r o p r i a t e method f o r achieving sentencing p a r i t y f o r each category o f offenders. Recommend t h e s p e c i f i c c a t e g o r i e s o f crimes o r o f f e n d e r s whose sentences should be reviewed. I d e n t i f y t h e sentencing s t a t u t e s which would q u a l i f y f o r i n i t i a l p a r i t y c o n s i d e r a t i o n and design a process by which sentences would be reviewed. Review t h e sentences i n t h e Arizona c r i m i n a l code and make recommendations regarding t h e i r appropriateness.

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*Please See Appendix A f o r t h e complete t e x t o f Laws 1993, chapter 255, s e c t i o n 96. MEMBERSHIP The committee was comprised o f t h e f o l l o w i n g eighteen members: Senate Senator P a t r i c i a No1and, Co-Chair Senator Chuck Blanchard Pub1 ic Members Joe Albo, J r , G i l a County Attorney Duane Belcher, Chairman, Board o f Pardons and Paroles Dr. Michael Block, Professor, U n i v e r s i t y o f Arizona Audrey Burke ( f o r Sam Lewis, D i r e c t o r , Department o f C o r r e c t i o n s ) Raul Castro, a t t o r n e y K u r t Davis, Governor Symington's o f f i c e David Derickson, Arizona Attorneys f o r Criminal J u s t i c e Karen Duffy, W t h e People e Donna Leone Hamm, Middl eground Catherine Hughes, Maricopa County P u b l i c Defender's O f f i c e Joe Maziarz, Attorney General Wood's O f f i c e Stephen Neely, Pima County Attorney Russel 1 Pearce ( f o r Joe Arpaio, Maricopa County S h e r i f f ) Judge Ronald Reinstein, P r e s i d i n g Criminal Judge, Maricopa County House Representative E r n i e Baird, Co-Chair Representative Phi 1 Hubbard

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STAFF The two staff members for the committee were: Dominica Minore, Legislative Research Analyst House of Representatives Judiciary Committee Joni Hoffman, Legislative Research Analyst Senate Judiciary Committee MEETINGS The State Sentencing and Parity Review Study Committee met six times on the following dates: August 25 September 15 October 1 October 13 November 4 December 10 The minutes for each meeting are attached as Appendix C.

Laws 1993, chapter 255, section 96 requires the State Sentencing and Parity Review Committee to submit a report to the Governor, the President of the Senate and the Speaker of the House of Representatives.

RECOMMENDATION #1 The committee voted to recommend to the legislature that a bill be drafted with the provisions listed below. The actual draft recommendation is attached as Appendix B. Directs the Arizona Board of Executive Clemency to conduct a disproportionality review of incarcerated inmates who meet all of the following initial eligibility requirements: * Committed a felony before January 1, 1994. * Was convicted as a result of a trial, not as a result of a plea agreement. * Has not been previously denied parole or commutation in connection with the sentence for which the inmate is incarcerated. This does not apply to inmates sentenced to an indeterminate sentence before the 1978 criminal code changes.

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Has not been previously denied a di sproportional i ty review. Applies for the review within 90 days after the Department of Corrections gives notice of the review process. Meets one of the following criteria: A. Was not convicted of a serious offense, had no historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least 7 years. B. Was not convicted of a serious offense, had one or more historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least 10 years. Was convicted of a serious offense, other than first degree C. murder, had no historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least 15 years. Was convicted of a serious offense, other than first degree D. murder, had one or more historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least 20 years. Specifically demonstrates in the inmate's application that the inmate meets the above eligibility requirements.

Requires the Department of Corrections to establish procedures to provide notice to the inmates of the availability of the disproportional ity review process within 90 days of the effective date of the act. Requires the Board of Executive Clemency to recommend to the Governor a commutation or reduction of sentence if after a hearing for which the victim, prosecutor and sentencing judge are given notice and an opportunity to be heard, the board finds both the following standards are met: * The sentence imposed is clearly excessive given the nature of the offense, the record of the offender and the sentence imposed on similarly situated offenders. The board may consider whether an inmate would be subjected to a substantially different sentence under statutes effective January 1, 1994. * There is a substantial probability that the offender will be lawabiding if released. Provides that if the Board of Executive Clemency votes unanimously to commute or reduce an inmate's sentence and the Governor does not act on the recommendation within 90 days, .it is automatically effective. Prohibits an appeal from the decision of the Board of Executive Clemency. Appropriates an unspecified sum of monies to the Department of Corrections and the Board of Executive Clemency to carry out the provisions of the act.

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. The bill may be drafted with blank lines to be filled in during the legislative process.

.propo.sal There are two dates and two amounts of money left blank in the

RECOMMENDATION # 2 The State Sentencing and Parity Review Committee recommended that the Committee be extended until December 31, 1994 for the following purposes: 1.
2.

Monitoring the disproportionality review process as the review is conducted as provided by law. Reviewing sentences as classified in the Arizona criminal code and making recommendations to the legislature regarding their appropriateness. Considering legislative proposals in re1 ation to sentencing and making recommendations as it deems necessary. Considering the creation of sentencing guide1 ines and the establ i shment of a commission for the purpose of monitoring sentencing guidelines.

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Sec. 96. S t a t e sentencinq and ~ a r i t v e v i e w s t u d y committee r A. A s t a t e s e n t e n c i n g g u i d e l i n e s and p a r i t y r e v i e w s t u d y committee i s e s t a b l i s h e d t h a t c o n s i s t s o f t h e f o l l o w i n g members: 1. The c h i e f j u s t i c e o f t h e supreme c o u r t o r h i s designee. 2. The governor o r h i s designee. 3. One s u p e r i o r c o u r t judge who. i s appointed by t h e c h i e f j u s t i c e o f t h e supreme c o u r t from a 1 i s t s u b m i t t e d by t h e A r i z o n a j u d i c i a l c o u n c i l . 4 . One p u b l i c defender who i s appointed by t h e governor. 5. One a t t o r n e y who i s appointed by t h e c h i e f j u s t i c e o f t h e supreme c o u r t from a l i s t s u b m i t t e d by t h e A r i z o n a a t t o r n e y s f o r c r i m i n a l j u s t i c e and who p r i m a r i l y p r a c t i c e s i n t h e area o f c r i m i n a l defense. 6. One c o u n t y a t t o r n e y from a county w i t h a p o p u l a t i o n o f l e s s t h a n f i v e hundred thousand persons who i s appointed by t h e governor from a l i s t s u b m i t t e d by t h e A r i z o n a p r o s e c u t i n g a t t o r n e y s a d v i s o r y c o u n c i l . 7 . One c o u n t y a t t o r n e y from a county w i t h a p o p u l a t i o n o f a t l e a s t f i v e hundred thousand persons who i s appointed by t h e governor f r o m a l i s t s u b m i t t e d by t h e A r i z o n a p r o s e c u t i n g a t t o r n e y s a d v i s o r y c o u n c i l 8 . The d i r e c t o r o f t h e s t a t e department o f c o r r e c t i o n s o r h i s designee. 9. One member o f t h e board o f e x e c u t i v e clemency who i s a p p o i n t e d by t h e governor. 10. One s h e r i f f f r o m a county w i t h a p o p u l a t i o n o f a t l e a s t f i v e hundred thousand persons a p p o i n t e d by t h e governor. 11. The a t t o r n e y g e n e r a l o r h i s designee. 12. One member f r o m t h e general p u b l i c who has worked w i t h v i c t i m s ' programs who i s a p p o i n t e d by t h e a t t o r n e y general. 13. Two members o f t h e senate who a r e appointed by t h e p r e s i d e n t o f t h e senate, no more t h a n one o f whom s h a l l be o f t h e same p o l i t i c a l p a r t y . 14. Two members o f t h e house o f r e p r e s e n t a t i v e s who a r e appointed by t h e speaker o f t h e house o f r e p r e s e n t a t i v e s , no more t h a n one o f whom s h a l l be o f t h e same p o l i t ic a l p a r t y . 15. One member from t h e general pub1 i c who i s a p p o i n t e d by t h e A r i z o n a a t t o r n e y s f o r c r i m i n a l j u s t i c e who has worked w i t h p r i s o n e r s and t h e i r f a m i l i e s . 16. One member o f t h e p u b l i c who i s n o t and has never been a p r o s e c u t o r , a t t o r n e y , judge o r l a w enforcement o f f i c i a l appointed by t h e governor. B. The members o f t h e committee s h a l l e l e c t a chairman f r o m t h e membership o f t h e committee a t t h e f i r s t committee meeting. C. Members o f t h e committee a r e n o t e l i g i b l e t o r e c e i v e compensation b u t a r e e l i g i b l e f o r reimbursement o f expenses pursuant t o t i t l e 38, c h a p t e r 4 , a r t i c l e 2. D. The commi t t e e s h a l l r e v i e w t h e sentences i n t h e A r i z o n a c r i m i n a l code and make recommendations t o t h e 1e g i s 1 a t u r e r e g a r d i n g t h e i r appropriateness and any changes t o t h e s e n t e n c i n g s t a t u t e s t o ensure t h a t t h e punishment f o r a c r i m i n a l o f f e n s e i s p r o p o r t i o n a t e t o t h e seriousness o f t h e o f f e n s e and t h e offender's c r i m i n a l h i s t o r y and promotes r e s p e c t f o r t h e l a w by p r o v i d i n g punishment which i s j u s t . E. The committee s h a l l s t u d y t h e i s s u e o f p a r i t y review, i n c l u d i n g t h e a p p r o p r i a t e scope o f c a t e g o r i e s t o which p a r i t y r e v i e w should be a p p l i e d and an a p p r o p r i a t e method f o r a c h i e v i n g sentencing p a r i t y f o r each c a t e g o r y o f offenders. The scope and methods s h a l l be designed t o i n c o r p o r a t e a l i m i t a t i o n t h a t p a r i t y r e v i e w s h a l l be completed w i t h i n one y e a r from t h e d a t e o f i t s implementation. F. The committee s h a l l recommend t o t h e l e g i s l a t u r e t h e s p e c i f i c c a t e g o r i e s o f c r i m e s o r offenders whose sentences should be reviewed. The purpose o f r e v i e w s h a l l be t o achieve p a r i t y f o r o f f e n d e r s sentenced pursuant t o s t a t u t e s t h a t are d i f f e r e n t from t h i s act.

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G . The committee s h a l l request t h e department o f c o r r e c t i o n s t o p r o v i d e t h e committee w i t h a 1 i s t o f a l l inmates convicted and sentenced pursuant t o s t a t u t e s t h a t a r e d i f f e r e n t from t h i s a c t t o determine t h e number o f inmates i n v o l v e d i n any guide1 ines t h a t may be e s t a b l i s h e d f o r p a r i t y review. H. The committee s h a l l i d e n t i f y t h e sentencing s t a t u t e s which would qua1 i f y f o r i n i t i a l p a r i t y c o n s i d e r a t i o n and design a process by which sentences would be reviewed. The committee s h a l l consider t h e f o l l o w i n g i n t h e review: 1. The n a t u r e and circumstances o f t h e offense o r offenses of c o n v i c t i o n . 2 . The harm t h e inmate caused t o t h e v i c t i m and s o c i e t y . 3 . The p r i o r r e c o r d o f t h e inmate. 4 . The inmate's behavior w h i l e incarcerated. 5 . The sentencing recommendations o f t h e p r o b a t i o n o f f i c e r who prepared t h e presentenci ng r e p o r t . 6. The sentencing recommendations o f t h e prosecuting a t t o r n e y , t h e v i c t i m and t h e defense a t t o r n e y a t t h e time o f sentencing. 7. The sentence imposed by t h e c o u r t , i n c l u d i n g any aggravating and m i t i g a t i n g circumstances found. 8. The sentence and t h e f e l o n y c l a s s i f i c a t i o n f o r t h e o f f e n s e a t t h e time t h e inmate was sentenced. 9. The sentence and t h e f e l o n y c l a s s i f i c a t i o n f o r t h e same offense committed a f t e r t h e e f f e c t i v e date o f t h i s a c t . 10. Any charges subsequently dismissed o r n o t f i l e d by t h e s t a t e a f t e r the defendant's c o n v i c t i o n . I . The committee s h a l l submit a r e p o r t i n c l u d i n g recommendations t o t h e governor, t h e p r e s i d e n t o f t h e senate and t h e speaker o f t h e house o f r e p r e s e n t a t i v e s by December 15, 1993.

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REFERENCE TITLE: disproportionality review; appropriation

State of Arizona Senate Forty-first Legislature Second Regul ar Session 1994

Introduced by AN ACT RELATING TO A DISPROPORTIONALITY REVIEW AND MAKING AN APPROPRIATION. Be it enacted by the Legislature of the State of Arizona: review; eliqibilitv; hearinq; criteria for Section 1. Dis~ro~ortionalitv commutation; definitions A. The Arizona board of executive clemency shall conduct a disproportionality review of incarcerated inmates under the jurisdiction of the Arizona department of corrections who meet all of the initial eligibility requirements listed in this subsection. The inmate: 1. Was sentenced for a felony committed on or before December 31, 1993. 2. Was convicted and sentenced after a trial. 3. Unless sentenced to an indeterminate sentence prior to 1978, has not previously been denied parole or commutation in connection with the sentence for which the inmate is incarcerated. 4. Has not previously been denied a disproportionality review by the Arizona board of executive clemency . 5. Makes an application to the board of executive clemency, within ninety days after the department of corrections provides the notice required by subsection B of this section. The appl ication shall specifically demonstrate that the inmate's el igi bil ity requirements have been met. 6. Meets one of the following criteria: (a) Was not convicted of a serious offense, had no historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least seven years. (b) Was not convicted of a serious offense, had one or more historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least ten years. (c) Was convicted of a serious offense, other than first degree murder, had no historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at least fifteen years. (d) Was convicted of a serious offense, other than first degree murder, had one or more historical prior felony convictions and was given a sentence or mandatory consecutive sentences of at 1 east twenty years. B. The department of corrections shall establ ish a procedure for providing written notice to its inmates of the eligibility requirements set forth in this section, including the appl ication dead1 ine prescribed in subsection A, paragraph
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5. The notice shall be provided within ninety days after the effective date of this section. C. If after a hearing for which the victim, prosecutor and sentencing judge are given notice and an opportunity to be heard, the Arizona board of executive clemency determines that an el igi bl e appl i cant meets both the following standards, the board shall make a recommendation to the governor for commutation or reduction of sentence: 1. The sentence imposed is clearly excessive given the nature of the offense, the record of the offender and the sentence imposed on similarly situated offenders. In determining whether a sentence is clearly excessive, 'the board, among other criteria, may consider whether an eligible inmate would have been subjected to a substantially different sentence of imprisonment under statutes effective January 1, 1994. 2. There is a substantial probability that if released, the offender will conform his conduct to the requirements of the law. D. Any recommendation for commutation pursuant to subsection B made unanimously by the members present and voting that is not acted on by the governor within ninety days after the board submits its recommendation to the governor automatically becomes effective. E. A decision by the Arizona board of executive clemency pursuant to this section may not be appealed. F. All reviews prescribed by this section shall be completed by [insert date]. F. As used in this section: 1. "Historical prior felony conviction" has the same meaning as prescribed in section 13-604, subsection T, paragraph 1, Arizona Revised Statutes. 2. "Serious offense" has the same meaning as prescribed in section 13-604, subsection T, paragraph 2, subdivisions (a) through (k), Arizona Revised Statutes. Sec. 2. A ~ ~ r o ~ r i a t i o n A. The sum of [insert dollar amount] is appropriated from the state general fund to the Arizona board of executive clemency for the purpose of carrying out the provisions of this act. B. The sum of [insert dollar amount] is appropriated from the state general fund to the Arizona department of corrections for the purpose of carrying out the provisions of this act. Sec. 3. Del aved re~eal Section 1, as added by this act, is repealed from and after [insert date].

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ARIZONA STATE LEGISLATURE STATE SENTENCING GUIDELINES AND PARITY REVIEW STUDY COMMITTEE Wednesday, August 25, 1993 Senat2 Hearing Room 1 - 1:30 p.m. Senator Noland c a l l e d t h e meeting t o order a t 1:30 p.m. and attendance o f t h e members was noted. See attached sheet f o r o t h e r attendees. Members Present Senator No1and Senator B l anchard Joe A1 bo, Jr Dr. Michael Block Raul Castro K u r t Davis David Derickson Karen D u f f y Tom Freestone Representative Bai r d Donna Hamm Catherine Hughes J. C. Keeney ( f o r Sam Lewis) Joe Maziarz Stephen Neely Russell Pearce ( f o r Joe Arpaio) Judge Ronald R e i n s t e i n Staff Joni Hoffman, Senate Dominica Minore, House

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Member Absent Representative Hubbard

A f t e r t h e Committee members introduced themselves, Joni Hoffman, Senate Research Analyst, provided an overview o f t h e Study Committee's o r i g i n , membership and mission as contained i n S.B. 1049, t h e r e v i s i o n s t o t h e c r i m i n a l code which were passed 1a s t session. Judge R e i n s t e i n moved t h a t Senator No1and and Representative Bai r d be e l e c t e d t o serve as co-chairs o f t h e S t a t e Sentencing Guide1 i n e s and P a r i t y Review Study Committee. The motion CARRIED by unanimous v o i c e vote. Ms. Hoffman gave an overview o f t h e t r i p taken by a group from Arizona t o Washington S t a t e t o g a i n i n f o r m a t i o n on t h a t S t a t e ' s Sentencing Guidelines Commission and t h e process u t i l i z e d t o accomplish p a r i t y review ( i n f o r m a t i o n f i l e d w i t h o r i g i n a l minutes). Senator Noland provided each member o f t h e Committee a copy o f t h e f i n a l r e p o r t o f t h e Texas Puni shment Standards Commi ssion f o r review. Senator Noland explained t o t h e Committee t h a t a d e t e r m i n a t i o n was made t o consider t h e issue o f p a r i t y review on i t s own d u r i n g t h e i n t e r i m r a t h e r than i n c o n j u n c t i o n w i t h t h e c r i m i n a l code review process. Representative B a i r d suggested t h a t t h e issue o f reviewing t h e appropriateness o f t h e sentences c u r r e n t l y i n s t a t u t e i s an overwhelming r e s p o n s i b i l i t y . He commented on h i s i n t e r e s t i n seeing t h e Committee address p a r i t y review, b u t he

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p o i n t e d out t h a t although t h e issue has been placed i n t o a committee i t does not mean a d e c i s i o n has been made t o conduct p a r i t y review. Representative B a i r d commented on Washington S t a t e ' s indeterminate sentencing system. He noted t h a t t h e n a t u r e o f p a r i t y review being considered by Arizona i s d i f f e r e n t than t h a t conducted by Washington since t h a t S t a t e ' s p a r i t y reviews gave new s p e c i f i c sentences t o p r i s o n e r s under t h e o l d indeterminate system. Representative B a i r d observed t h a t t h e Study Committee i s charged w i t h considering a number o f issues in' terms o f p a r i t y review b u t t h a t t h e Committee i s n o t o b l i g a t e d t o design a system t o i n c l u d e a l l o f those elements. He suggested instead t h a t any p a r i t y review system designed by t h e Committee would probably be more l i m i t e d and would determine whether c e r t a i n mandatory sentences should be reviewed w i t h a possi b l e c o n s i d e r a t i o n t o adjustment i n accordance w i t h new mandatory sentences. Senator No1and p o i n t e d o u t t h a t Washington's p a r i t y review process i n v o l v e d o n l y a c o n s i d e r a t i o n o f new minimum sentences and t h e d e c i s i o n t o r e l e a s e p r i s o n e r s was handled through t h e r e g u l a r par01 e process. Dr. Block observed t h a t d u r i n g 1980 t o 1991 both Washington and Texas have been among t h e t o p t e n s t a t e s i n terms o f an increased crime r a t e b u t among t h e bottom t e n s t a t e s i n t h e r a t e o f increases i n i n c a r c e r a t i o n , adding t h a t Arizona i s the opposite. He suggested t h e Committee weigh t h e e f f e c t i v e n e s s o f a s t a t e ' s sentencing programs i n terms o f c o n t r o l l i n g crime when c o n s i d e r i n g models f o r Arizona. Senator Noland acknowledged t h a t t h e Arizona group d i d have some concerns w i t h t h e Washington system, p a r t i c u l a r l y i t s p r a c t i c e o f imposing up t o 60 days i n the county j a i l f o r p a r o l e v i o l a t i o n s r a t h e r than revoking t h e p a r o l e . However, she explained t h e main c o n s i d e r a t i o n i n l o o k i n g a t Washington's s i t u a t i o n was the f a c t t h a t t h e S t a t e has conducted t h r e e p a r i t y reviews. M r . Neely asked i f Washington was engaged i n a process s i m i l a r t o t h a t being considered by Arizona and questioned what the term " p a r i t y review" means i n the parameters o f t h e Committee. Representative B a i r d explained t h a t Washington's f i r s t two reviews, r e f e r r e d t o as t h e Obert Myer review and t h e 1400 review, were a d i f f e r e n t process than i s being considered by Arizona. He added t h a t h i s p e r c e p t i o n o f p a r i t y means equal it y and i n v o l v e s t h e issue o f whether p r i s o n e r s convicted under the o l d code f o r a p a r t i c u l a r offense should be t r e a t e d on t h e same l e v e l as p r i s o n e r s c o n v i c t e d under t h e new code. Representative B a i r d p o i n t e d o u t t h a t an o f f i c i a l i n Washington made a statement t h a t t h e L e g i s l a t u r e would implement p a r i t y review o r t h e c o u r t s would order i t t o be done. He s a i d he does n o t b e l i e v e t h a t statement i s accurate f o r Arizona's s i t u a t i o n s i n c e t h e r e i s no c o n s t i t u t i o n a l p r i n c i p a l which i n d i c a t e s t h a t sentences must be changed f o r p r i s o n e r s under an o l d code when sentencing laws are changed. Senator Noland noted t h a t i n f o r m a t i o n w i l l be provided l a t e r t o t h e Committee on Washington's t h i r d review, r e f e r r e d t o as the Murder One review.

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M r . Derickson e x p l a i n e d t h a t he l e a r n e d from Washington o f f i c i a l s t h a t t h e S t a t e does n o t have any s t u d i e s which demonstrate a c o r r e l a t i o n between imprisonment p o l i c i e s and t h e c r i m e r a t e . He added t h a t Washington has a dynamic economy and borders Canada and t h e P a c i f i c R i m , which c o n t r i b u t e s t o t h e S t a t e ' s p o p u l a t i o n pressure and t h e increased c r i m e r a t e . He noted t h a t Texas, as another b o r d e r s t a t e , i s i n a s i m i l a r s i t u a t i o n . M r . Derickson concluded t h a t b o t h s t a t e s a r e faced w i t h some o f t h e same problems as Arizona, which should be taken i n t o c o n s i d e r a t i o n when d e t e r m i n i n g t h e i r use as examples f o r e f f o r t s by Arizona.
M r . Derickson s a i d he agreed w i t h Representative B a i r d t h a t t h e r e i s no c o n s t i t u t i o n a l r i g h t f o r o l d code p r i s o n e r s t o r e c e i v e s i m i l a r sentences as new code p r i s o n e r s . However, he maintained t h a t t h e concern o f o f f i c i a l s i n Washington p a r a l l e l s t h e s i t u a t i o n i n Arizona i n which t h e overcrowding o f p r i s o n s i s a l e g i t i m a t e pub1 i c s a f e t y concern. He added t h a t a r e d u c t i o n o f t h e p r e s s u r e on p r i s o n s through p a r i t y r e v i e w would be o f g r e a t s e r v i c e t o Arizona. Judge R e i n s t e i n suggested i t m i g h t be more advantageous t o r e v i e w c l a s s i f i c a t i o n s o f crimes as opposed t o changing sentences. I n a d d i t i o n , he commented t h a t v i r t u a l l y e v e r y one o f Washington's sentences were changed whereas t h e o n l y sentences i n Arizona t h a t would change on a v a s t s c a l e would be drug o f f e n s e s , r e d u c i n g t h e number o f sentences t o be m e c h a n i c a l l y reviewed. Senator Blanchard agreed t h a t a p a r i t y r e v i e w i n A r i z o n a would i n v o l v e modest numbers, adding t h a t t h e sentences most a f f e c t e d would p r o b a b l y be b u r g l a r y , s h o p l i f t i n g and drug o f f e n s e s . He a l s o agreed t h a t c o n s i d e r a t i o n should be g i v e n t o a r e v i e w o f c l a s s i f i c a t i o n s o f crimes. Senator Blanchard emphasized t h e need f o r d a t a on those i n d i v i d u a l s who would be a f f e c t e d b y p a r i t y r e v i e w b e f o r e h a v i n g p h i l o s o p h i c a l d i s c u s s i o n s on t h e m e r i t s o f t h e process. He added t h a t t h e Washington experience might be most r e l e v a n t t o o f f e n d e r s under t h e pre-1978 code s i n c e t h e system i n v o l v e d was an i n d e t e r m i n a t e sentencing. Senator B l anchard observed t h a t Arizona moved t o a d e t e r m i n a t e system i n 1978 and someone s t i l l i n p r i s o n under t h e pre-1978 code i s p r o b a b l y t h e r e f o r v e r y s e r i o u s crimes, adding i t i s n o t 1 ik e l y t h e L e g i s l a t u r e would want t o implement a process t o r e l e a s e those p r i s o n e r s . M r . Albo suggested t h a t when t h e Committee makes i t s r e q u e s t f o r necessary i n f o r m a t i o n from t h e Department o f C o r r e c t i o n s (DOC) t h a t d a t a a l s o be p r o v i d e d on t h e number o f i n d e t e r m i n a t e sentences. Ms. Hamm m a i n t a i n e d t h a t people who have been i n c a r c e r a t e d f o r many y e a r s on i n d e t e r m i n a t e sentences f o r s e r i o u s crimes should s t i l l be considered f o r p a r i t y review, w i t h t h e p a r o l e board making t h e f i n a l d e c i s i o n on r e l e a s e . Dr. B l o c k r e i t e r a t e d h i s concern t h a t t h e o n l y i n f o r m a t i o n on p a r i t y r e v i e w comes from s t a t e s w i t h a f a i l u r e r a t e i n c r i m e c o n t r o l and asked i f t h e r e a r e p l a n s t o seek o t h e r i n f o r m a t i o n . Senator Noland s a i d she would be g l a d t o accept recommendations as t o what s t a t e s may have more p e r t i n e n t d a t a and asked Dr. B l o c k t o submit any i n f o r m a t i o n he may have r e l a t i n g t o s t a t e s w i t h a f a i l u r e r a t e i n crime control.

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-Judge Reinstein pointed out that Texas is attempting to address the problems in its system as indicated by the recommendations in the report of the Texas Punishment Standards Commission and added that the Committee is not yet aware of what the results of those recommendations may be. He noted that North Carolina and Pennsylvania, as well as a number of other states, are addressing their sentencing structures because they recognize that their systems have not been effective. Mr. Keeney commented that DOC does not have a great deal of staff to utilize to respond to the Committee's requests for information. Senator Noland indicated that she did not want t o place an undue burden on DOC staff and would request information as far in advance as possible, adding that Daryl Fischer of DOC had provided some data relating to parity review during the criminal code discussions. Representative Baird pointed out that DOC is not being asked to analyze individual files and that the necessary statistical information should be in the computer. He emphasized the need for information in order for the Committee to complete its responsibilities. Mr. Keeney said he would talk to Dr. Fischer and Senator Noland suggested it might be worthwhile for Dr. Fischer to be present at the next meeting. Mr. A1 bo asked for further information on the 40 percent recidivism rate as indicated in the Washington material. Ms. Hoffman explained that is a general recidivism rate and does not necessarily relate to parity review, adding that more specific statistics were not available. Senator Noland indicated that Norm Maleng, the prosecutor in King County, Washington, maintained there has been no significant repeat offender problem. She reiterated, however, that prisoners who have been paroled in Washington are not put back in prison for technical violations o f their paroles. Ms. Hamm said that the impression of Kit Bail, the Chair of Washington's Indeterminate Sentence Review Board, is that the parity review process had not had an effect on the recidivism rate. She reiterated that parity review does not include the release of a prisoner but only determines if a particular sentence will be reduced. There was discussion on the effect of parity review on the appellate system. Mr. Maziarz stated that a1 though a judge in Washington said there was very 1 i ttle appellate work involved, Kit Bail indicated that the State increased from one-ha1 f assistant attorney general position to eight positions. Mr. Maziarz maintained that the legal work and expense are quite extensive and suggested that Arizona consider the issue very carefully before undertaking any type of parity review. Mr. Keeney noted there are 5,000 people on parole in Arizona and indicated he assumes they would come under the review. He added that individuals on probation were sentenced under the same statute and questioned if they would be involved in the process.

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August 25, 1993 L ge 5

Senator Blanchard s a i d t h e y would p r o b a b l y n o t be a f f e c t e d by t h e changes i n t h e s t a t u t e . He added t h a t p a r i t y r e v i e w would most 1 i k e l y a f f e c t o n l y around 500 people, w i t h a number o f those on some t y p e o f r e l e a s e s t a t u s . He p o i n t e d o u t t h a t A r i z o n a d i d n o t make t h e same k i n d o f major changes i n t h e c r i m i n a l code t h a t o t h e r s t a t e s d i d . Representative B a i r d suggested t h a t t h e i s s u e o f t h e e f f e c t o f p a r i t y r e v i e w on i n d i v i d u a l s who may have t h e i r p a r o l e revoked i s one t h a t needs c o n s i d e r a t i o n . M r . Neely s a i d t h e r e was no p a r i t y r e v i e w conducted when A r i z o n a changed from an i n d e t e r m i n a t e t o a d e t e r m i n a t e s t r u c t u r e i n 1978 and no problems were i n evidence as a r e s u l t . Senator Noland asked M r . Maziarz t o determine t h e e x t e n t o f t h e involvement o f p a r i t y r e v i e w f o r i n d i v i d u a l s on some form o f r e l e a s e , t o which M r . Maziarz e x p l a i n e d t h a t i n d i v i d u a l s whose r e l e a s e i s revoked and who were sentenced under t h e o l d code would be e n t i t l e d t o p a r i t y review. Senator No1 and s a i d i t m i g h t be a good i d e a t o request p a r o l e numbers from DOC. M r . Keeney i n d i c a t e d t h a t DOC does n o t know how many people a r e on some t y p e o f p r o b a t i o n s t a t u s , adding t h a t i s a county f u n c t i o n . Senator Blanchard m a i n t a i n e d t h a t i n d i v i d u a l s on r e l e a s e s t a t u s would n o t r e a l i s t i c a l l y have a c l a i m t o p a r i t y review. He suggested t h a t one o p t i o n i s t o adopt a p h i l o s o p h y r e f l e c t e d i n t h e l e g i s l a t i o n which a l l o w s commutation r e v i e w i n mandatory sentencing cases. He added t h a t commutation i s a s o r t o f p a r i t y r e v i e w and c o u l d be u t i l i z e d r a t h e r t h a n c r e a t i n g a s p e c i a l mechanism. M r . Derickson suggested t h a t t h e b e s t way t o proceed i s t o s e t up a p a r i t y r e v i e w system t o deal w i t h those people c u r r e n t l y i n p r i s o n . M r . Davis i n d i c a t e d t h a t he would n o t f e e l c o m f o r t a b l e making d e c i s i o n s on a p a r i t y r e v i e w system w i t h o u t a knowledge o f t h e f u l l imp1 i c a t i o n s t h a t would be i n v o l v e d . Senator Noland s a i d she does n o t f e e l t h a t i n d i v i d u a l s on p r o b a t i o n would be a f f e c t e d by t h e changes i n t h e c r i m i n a l code b u t suggested t h a t DOC come up w i t h numbers i n v o l v i n g par01ees, i n d e t e r m i n a t e sentences and those a f f e c t e d by changes i n t h e b u r g l a r y , s h o p l i f t i n g and drug s t a t u t e s . Jonnie Reasoner. r e ~ r e s e n t i n qh e r s e l f , asked how Hannah p r i o r s r e 1 a t e t o t h e p a r i t y r e v i e w process. Representative No1 and i n d i c a t e d t h e r e were some changes made w i t h i n t h e code which deal w i t h t h e way charges a r e handled f o r two o r more offenses. Senator Blanchard agreed t h e r e were changes made on Hannah p r i o r s b u t t h e number o f people a c t u a l l y c o n v i c t e d u s i n g Hannah p r i o r s as opposed t o merely charged i s v e r y small

.

M r . Neely commented on t h e e a r l i e r d i s c u s s i o n between Dr. Block and M r . Derickson r e g a r d i n g t h e r e l a t i o n s h i p between c r i m e and i n c a r c e r a t i o n and requested t h a t t h e y submit documentation f o r t h e i r r e s p e c t i v e p o s i t i o n s . S ~ l vai B o u t i 1 i e r . r e ~ r e s e n t i n qherself, questioned i f t h e Committee's work w i 11 deal w i t h clemency reviews f o r women who have been c o n v i c t e d o f murdering t h e i r husbands a f t e r y e a r s o f abuse. Representative Noland noted t h a t l e g i s l a t i o n was enacted two y e a r s ago p e r m i t t i n g p r e v i o u s domestic v i o l e n c e as a defense. Judge R e i n s t e i n i n d i c a t e d t h a t S.B. 1049 allowed f o r commutation f o r r e v i e w f o r people

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currently incarcerated under a flat time sentence and added that a provi s'ion for clemency review is the only way the individuals discussed by Ms. Boutilier would be affected. There were requests by Dr. Block and Mr. Neely for staff to obtain information on instances of crime which can be tied to the issue of parity review. Senator Blanchard noted that two documents the Committee may find helpful include a Bureau of Justice statistics article and the Arizona Presecuting Attorneys Advi sory Council presentation by Dr. Block. The next meeting will be held on Wednesday, September 15, 1993, at 1:30 p.m., with plans to meet every other Wednesday. The meeting adjourned at 3:00 p.m. Res~ectfullv submitted.

M i c e C. Stell Committee Secretary

ARIZONA STATE LEGISLATURE Minutes o f Meeting STATE SENTENCING GUIDELINES AND PARITY REV1E STUDY COMMITTEE W Wednesday, September 15, 1993 Senate Hearing Room 1 - 9:30 a.m. Representative B a i r d c a l l e d t h e meeting t o o r d e r a t 9:38 a.m. and attendance was noted. See a t t a c h e d sheet f o r o t h e r attendees. Members Present Joe A1 bo, Jr. Dr. Michael B l o c k Audrey Burke ( f o r Sam Lewis) K u r t Davis Karen D u f f y Donna Leone Hamm Senator B l anchard Senator Noland, Co-Chair Members Absent David D e r i ckson Tom Freestone C a t h e r i n e Hughes Bob Levy ( f o r Raul Castro) Joe Maziarz Stephen Neely Russell Pearce ( f o r Joe A r p a i o ) Judge Ronald R e i n s t e i n Representative Hubbard Representative B a i r d , Co-Chair Staff J o n i Hoffman, Senate Dominica Minore, House

Department o f C o r r e c t i o n s (DOC), i n response t o Dr. D a r v l F i s c h e r . r e ~ r e s e n t i n a a r e q u e s t f o r s t a t i s t i c a l i n f o r m a t i o n from t h e Committee, e x p l a i n e d t h a t t h e Department needs some i n p u t from t h e members i n o r d e r t o determine e x a c t l y which p r o v i s i o n s o f S.B. 1049 c o u l d p o t e n t i a l l y be s u b j e c t t o p a r i t y review. He emphasized t h e e x t e n t o f t h e resources and manpower t h a t would be necessary t o generate t h e l i s t s o f i n f o r m a t i o n requested by t h e Committee, adding t h a t a d d i t i o n a l resources from t h e L e g i s l a t u r e would be needed t o undertake such an effort. Dr. F i s c h e r e x p l a i n e d t h a t approximately 7,000 cases o v e r a l l would have t o be reviewed i n d i v i d u a l l y by DOC. He noted s p e c i f i c a l l y t h a t t h e Department would have t o p u l l t h e f i l e s o f 1,600 inmates c o n v i c t e d o f t h e f t t o r e v i e w t h e d o l l a r amount i n v o l v e d and 900 f i l e s would have t o be reviewed i n t h e area of drug c o n v i c t i o n s t o determine t h e amount o f drugs i n v o l v e d i n o r d e r t o determine which cases would p o t e n t i a l l y be a f f e c t e d by t h e p a r i t y r e v i e w process. He i n d i c a t e d those a c t i v i t i e s would t a k e an e s t i m a t e d 500 t o 1,000 manhours and several months o f work. Dr. F i s c h e r s a i d he would p r o v i d e copies o f two case s t u d i e s deal i n g w i t h d r u g and burg1 ary/shopl if t i n g t h r e s h o l d s and t h e p o s s i b l e impact of p a r i t y review. He p r o v i d e d a 1 i s t o f inmates i n c a r c e r a t e d under t h e pre-1978 code ( f i l e d w i t h o r i g i n a l m i n u t e s ) . Dr. F i s c h e r emphasized t h a t p a r i t y review i s an o p t i o n a l measure which does n o t n e c e s s a r i l y r e p r e s e n t a v a l u e judgment about t h e o l d v e r s i o n o f t h e c r i m i n a l code.

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In response to a question from Representative Baird, Dr. Fischer indicated that the inmate 1 ist he provided includes 363 individuals in the prison population who were sentenced under the pre-1978 version of the criminal code. Representative Baird asked if there was any mandatory sentencing before 1978, to which Dr. Fischer answered affirmatively. Representative Baird maintained that most of those people would probably be eligible for parole under the old system and the impetus to change that would not be as great. He a1 so noted the manhours required by DOC to gather the information is an indication of the time and effort which would have to be spent on an extensive parity review program. Senator Noland asked why the gathering of information would be so time consuming when Dr. Fischer was able to adjust the figures on a week-to-week basis during the criminal code revision process. Dr. Fischer explained that the estimates of potential impact he provided during that process were based on random samples and added that parity review would be based on the entire prison population. Senator Noland pointed out the issue at hand is whether a parity review system should be implemented at all and questioned how long it would take to perform the same type of sampling for a discussion of parity review as was done for the criminal code process. Dr. Fi scher responded that he has some prel iminary estimates avai 1 able based on the previous sampl ing. In response to an earl ier remark by Dr. Fischer, Senator No1 and emphasized that a potential parity review system would provide adjustments rather than corrections to sentences. In response to Representative Baird's comment regarding inmates sentenced under the old code, Senator Noland maintained it is important to consider the fairness issue between the old and new codes in determining whether to have a parity review. She also noted that the Legislature mandated DOC to provide certain information to the Committee, and she pointed out the Committee's responsibility does not include the issue of additional funding for DOC to accompl ish its tasks. Representative Baird agreed it is necessary to determine if there are situations not provided for under the present code. In response to a question from Senator Blanchard regarding the preliminary estimates mentioned, Dr. Fischer explained the estimates involve the main areas of S.B. 1049 that could be subject to parity review. He noted that estimates of inmates who would potentially be subject to parity review include 520 individuals for which the amount of drugs involved fa1 1 s below the new threshold, 804 inmates who would fall into a lower classification based on the new theft thresholds, 355 inmates who were convicted of burg1 ary for an actual shop1 i fting type incident and 371 inmates who were convicted using Hannah priors. Senator Blanchard noted -that an alternative to parity review is to allow commutation review of inmates who received mandatory sentences under the old code, and he questioned how many inmates that would include. Dr. Fischer explained that most cases of mandatory sentences are not eligible for commutation. Ms. Burke indicated there are a lot of different variations in the new code pertaining to commutation eligibility. She said primarily there are inmates serving flat time sentences who are not eligible for release on any basis until they have served their entire sentences. Another group is not el igi ble for commutation until a specific amount of time has been served, at which time they

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a1 so become e l i g i b l e f o r parole. Ms. Burke noted t h a t t h e numbers i n v o l v e d can be obtained from t h e computer. Judge R e i n s t e i n contended t h e o n l y cases which would apply are- those under Arizona Revised S t a t u t e s 13-604, 13-604.01, and 13-604.02, as we1 1 as any drug sale, possession f o r s a l e o f n a r c o t i c o r dangerous drug and sexual assault. Dr. Fischer maintained t h a t such an assessment would i n v o l v e about h a l f t h e p r i s o n p o p u l a t i o n o r around 8,700 inmates. Senator Bl anchard questioned i f t h e t r u t h - i n - s e n t e n c i n g model w i l l be an issue i n p a r i t y review. Dr. Fischer contended t h a t t r u t h i n sentencing represents a fundamental change i n t h e sentencing s t r u c t u r e r a t h e r than a f i n e t u n i n g o f the o l d e r s t a t u t e s and should n o t be a concern i n t h e p a r i t y review issue. He maintained t h a t p a r i t y review should be d i r e c t e d o n l y toward i n d i v i d u a l s sentenced under t h e o l d e r s t a t u t e s . Senator Blanchard asked i f p a r i t y review w i l l be a complex t a s k since t h e g r i d f o r Hannah p r i o r s under t h e o l d system represents a philosophy o f a v a i l a b l e r e l e a s e mechanisms w h i l e t h e new g r i d represents t r u t h i n sentencing. Dr. Fischer acknowledged t h a t p a r i t y review w i l l be q u i t e a complex t a s k i f t r u t h - i n - s e n t e n c i n g type c r i t e r i a i s a p p l i e d t o o l d e r cases since t h e new law includes an e n t i r e l y separate schedule f o r Hannah p r i o r s . Senator Blanchard asked what percentage o f people are i n p r i s o n under t h e pre-S.B. 1049 code because o f an admission o f g u i l t and those i n p r i s o n as the r e s u l t o f a t r i a l . Dr. Fischer i n d i c a t e d about 90 percent o f inmates i n p r i s o n are t h e r e as a r e s u l t o f p l e a bargains r a t h e r than t r i a l s . Senator Blanchard asked how common s t i p u l a t e d sentencing i s i n Maricopa County, t o which Judge R e i n s t e i n explained t h a t over 50 percent o f t h e p l e a agreements i n v o l v e some type o f a s t i p u l a t i o n t o p r i s o n . He added t h e r e i s some discussion p e r t a i n i n g t o a l l o w i n g sentencing s t i p u l a t i o n s t o D C o r p r o b a t i o n as opposed t o O a term o f years.
M r . Neely questioned what D C would r e l y on t o determine t h e circumstances o f an O o f f e n s e i f t h e Department undertakes t h e type o f survey mentioned by D r . Fischer. Dr. Fischer i n d i c a t e d t h a t D C would u t i l i z e any i n f o r m a t i o n i n t h e inmates' O f i l e s i n t h e c e n t r a l o f f i c e , which includes t h e minute e n t r i e s , presentence i n v e s t i g a t i o n s and p o l i c e r e p o r t s . He added t h a t t h e counties would be t h e source o f any f u r t h e r i n f o r m a t i o n t h a t i s needed. Dr. Fischer explained t h a t the issue c o u l d a r i s e as t o whether c e r t a i n documents would l e g a l l y need t o be reviewed and may r e q u i r e an a t t o r n e y t o be i n v o l v e d i n t h e process. I n f u r t h e r response t o M r . Neely, Dr. Fischer observed t h a t Sam Lewis, D C D i r e c t o r , i s O p h i l o s o p h i c a l l y opposed to p a r i t y review.

Ms. Hamm p o i n t e d o u t t h a t S.B. 1049 allows the earned r e l e a s e c r e d i t s o f inmates sentenced t o consecutive sentences t o r o l l over t o t h e i r next sentence. She questioned how many inmates would be impacted by being allowed t o count earned r e l e a s e c r e d i t s i n a p a r i t y review. Dr. Fischer estimated t h a t approximately 250 inmates have consecutive sentences t o which t h e good time c r e d i t s cannot be a p p l i e d t h e way t h e y would normally be t o o t h e r types o f sentences.

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Ms. Burke explained that under the current law inmates have an eligibility for par01 e to a consecutive sentence. She added that one of the reasons for a1 lowi ng the release credits to deduct from a sentence if the consecutive sentence is served is to provide a parity difference between current law and truth in sentencing, particularly since there would no longer be that possibility of parole to the consecutive sentence. Ms. Hamm pointed out that the earned release credit is an automatic application whereas parole is discretionary. Judge Reinstein questioned if it can be determined whether the 371 inmates convicted using Hannah priors had other prior felony convictions that were 1 ater dismissed, to which Dr. Fischer answered affirmatively. Judge Reinstein asked if that would be a relatively easier task utilizing the computer as opposed to the number of manhours mentioned earl ier. Dr. Fi scher rep1 ied that obtaining information on Hannah prior cases is rather difficult since there is nothing in the computer system to indicate that a Hannah prior is involved, causing the need to actually pull every repetitive offender case to determine which are actually Hannah prior cases. There was further discussion of the time involved in pull ing files in theft cases to determine whether the case involved a shoplifting incident. Judge Reinstein observed that it would not be work intensive on the part of DOC to simply allow an inmate to apply for commutation review, to which Dr. Fischer agreed commutation review could be a viable alternative. Dr. Block questioned whether DOC could develop estimates on the number of crimes that might be committed by people who were released early through a parity review process. Dr. Fischer responded that studies indicate about 40 percent of released inmates in Arizona return to prison within three years. He added that approximately 28 percent of that number commit new felonies with the balance returning to prison on technical violations. Dr. Fischer explained that many of those individuals have committed technical violations that actually constitute violations of the statutes, such as drug possession or drug use. He further noted that the percentage of individuals actually committing a new offense within three years of re1 ease, and not necessarily being caught or convicted, i s between 50 to 60 percent. He added that in order to provide cost estimates of crimes, DOC would have to consider how much earlier a particular inmate is released by parity review and perform a risk assessment to indicate the crimes that could be committed during a certain period. Dr. Block asked if it would be possible to provide such a cost estimate, to which Dr. Fischer indicated the task is not insuperable but would take at least an additional 100 to 200 hours of time. Dr. Block emphasized to the Committee the importance of obtaining information on the costs to society of recommending parity review. Senator Noland said she would 1 i ke to know how many plea agreements have resulted in lower sentences that have caused people to be placed back on the streets in a lesser degree of time and what the cost was to the public. Dr. Fischer maintained DOC could review the original charges involved and how they were plea bargained, adding that such an effort would be a work intensive item that would require additional resources. Ms. Hamm expressed concern about discussion of lowering the numbers involved in a potential parity review by utilizing the commutation process. She pointed out

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t h e commutation process provides a g r e a t deal o f work f o r t h e p a r o l e board and h i s t o r i c a l l y Arizona governors have never used t h e process as a frequent release Ms. H a m emphasized t h a t t h e commutation process i s an a c t o f mechanism. executive clemency which i s general l y reserved f o r e x t r a o r d i n a r y cases, whereas p a r i t y review should be an e q u a l i z a t i o n o f sentences. Ms. H a m questioned how i t was determined t h a t more than 50 percent o f the i n d i v i d u a l s released from p r i s o n commit another f e l o n y i f a c o n v i c t i o n i s n o t n e c e s s a r i l y made. Dr. Fischer maintained t h a t he r e l i e s on h i s extensive background over t h e l a s t 18 years i n c r i m i n a l j u s t i c e , having been p e r s o n a l l y i n v o l v e d i n t h e area o f r e c i d i v i s m and r i s k assessment and having seen a number o f s t u d i e s which have i n d i c a t e d v a r i a b l e l e v e l s o f r e c i d i v i s m . He explained t h a t t h e most r e s t r i c t i v e d e f i n i t i o n o f r e c i d i v i s m would i n c l u d e a c o n v i c t i o n o f a new f e l o n y and r e t u r n i n g t o p r i s o n . However, Dr. Fischer acknowledged t h a t h i s discussion o f t h e over 50 percent f i g u r e r e f e r s t o a much broader d e f i n i t i o n o f r e c i d i v i s m . He noted t h a t n a t i o n a l studies, as w e l l as s t u d i e s he has performed, i n d i c a t e t h a t more than 50 percent o f released offenders are r e a r r e s t e d w i t h i n t h r e e years o f release. He s a i d he is n o t presuming they are a1 1 g u i l t y , b u t if i t i s concluded t h a t a major p o r t i o n are g u i l t y then i t can be p r o j e c t e d t h a t over 50 percent have probably committed crimes. Dr. F i scher c l a r i f i e d t h a t s t u d i e s n a t i o n a l l y i n d i c a t e a much higher r a t e o f r e c i d i v i s m i f any k i n d o f r e a r r e s t i s included. Ms. Hamm asked what t h r e e categories' have t h e lowest r a t e o f r e c i d i v i s m . Dr. Fischer explained t h a t t h e area w i t h t h e lowest r e c i d i v i s m r a t e s i n terms o f a c t u a l l y r e t u r n i n g t o p r i s o n w i t h i n t h r e e years o f r e l e a s e i n v o l v e s v i o l e n t crimes, p a r t i c u l a r l y homicide, rape and c h i l d molestation. He added t h a t r e c i d i v i s m r a t e s i n v o l v i n g drugs are low f o r c e r t a i n types o f drugs b u t h i g h f o r o t h e r drugs. Representative B a i r d observed t h a t t h e c r i m i n a l code r e v i s i o n s included changes i n t h e t h e f t thresholds f o r various c l a s s i f i c a t i o n s p r i m a r i l y because of i n f l a t i o n , adding t h a t he does n o t f e e l p a r i t y review i s necessary f o r t h e f t offenses. He stressed t h a t any k i n d o f comprehensive p a r i t y review would be a v e r y complex undertaking and t h e question i s whether j u s t i c e demands i t . He agreed t h a t commutation i s a somewhat e x t r a o r d i n a r y - remedy b u t noted t h e p o i n t o f t h e commutation review proposal i s t h a t o n l y those people would be i n v o l v e d who appear t o have been t r e a t e d unequally. He questioned how Senator Blanchard perceives t h e commutation review process f u n c t i o n i n g . Senator Blanchard noted t h a t t h e commutation process was changed i n S.B. 1049 so t h a t Board o f Executive Clemency can unanimously recommend clemency, w i t h the commutation becoming e f f e c t i v e i f t h e Governor takes no a c t i o n . He p o i n t e d out t h a t such a measure g i v e s t h e Governor a veto power r a t h e r than approval power, which changes t h e p o l it i c a l n a t u r e o f clemency. Senator Bl anchard suggested t h a t a who1 esal e automatic p a r i t y review would c r e a t e many problems. He contended t h e r e are a number o f o p t i o n s f o r commutation review, such as l i m i t i n g the process t o c e r t a i n crimes o r t o people f o r whom t h e r e i s a g r e a t d i s p a r i t y between o l d and new codes.

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Ms. Hughes emphasized the question of parity review involves fundamental fairness. She said she is intrigued with Judge Reinstein's suggestion that an approach could be to allow the inmates to identify themselves since they know better than anyone what time they have remaining and what effect the differences in the criminal code have on their sentences. She suggested one possible solution would be to give inmates a limited remedy under Rule 32 in which they could apply to the sentencing judge to review their sentencing under the new code rather than having one committee or the Governor making the decisions. Ms. Burke indicated that a number of the issues under discussion were also brought up when the 1978 criminal code was implemented. She noted that at that time an empirical review was performed for a number of cases in each category of theft. It was determined that if the amounts of the items stolen were equated to current day's values there was no change in the actual sentencing structures in most cases. However, she noted it was also necessary to take all the release mechanisms for old code versus new code and calculate eligibility to determine whether a person would benefit. She emphasized the process was a very extensive one and pointed out a total parity review would have taken tremendous research. Ms. Burke acknowledged commutation capabilities might sound easier but she contended the issue is not a simple one. She explained that she has been responsible for the inmate time compensation system for over 15 years and that inmates do not understand how their release dates are calculated. Mr. Neely emphasized that a plea agreement represents a contract based on the circumstances as they exist at the time. He also indicated that his constituents' concerns about mandatory sentences and alterations of the criminal code re1 ate to disproportional i ty. He added that there is considerable merit in considering the expansion of the commutation process to deal with those i ssues and allowing individual inmates to make application to that process. He said he a1 so feels there is a vast distinction between executive clemency and commutation, noting that executive clemency is intended to be an extraordinary remedy for extraordinary circumstances while commutation could be a process by which adjustments can be made to deal with issues of disproportionality. Ms. Hamm informed the Committee that executive clemency is an umbrella that includes pardons, commutations and reprieves. She noted that the excl usive abil i ty to grant commutation or any act of executive clemency is reserved for the Governor under the State Constitution, which would have to be changed in order to allow some commutation process connected with parity review. She also indicated she is not entirely opposed to a measure that in some way removes the burden from the Governor or ref1 ects that the commutations given were the result of parity review authorized by the Legislature. Ms. Hamm commented that the number of people on the list of old code inmates provided by Dr. Fischer and their admission dates illustrate the need to review the indeterminate sentences that were given many years ago. She contended the 1 i kel i hood of those individuals having appl ied for commutations unsuccessfull~ ties in with the fact they have been in prison for such a long time or were mentally i l l when they entered prison or have become so institutional ized over the years they could not function outside the prison.

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M r . Albo s t a t e d he was under t h e impression t h a t p a r i t y r e v i e w would be considered f o r those inmates who a r e i n t h e system on i n d e t e r m i n a t e sentences r a t h e r t h a n t h e - e n t i r e p r i s o n p o p u l a t i o n . He noted over 90 p e r c e n t o f t h e cases i n G i l a County are handled by p l e a agreement, which c o n s t i t u t e s a c o n t r a c t t o which b o t h s i d e s should honor. M r . Pearce s t a t e d he has a c a u t i o u s approach t o p a r i t y review, adding t h a t p l e a b a r g a i n cases should n o t be a p a r t o f such a process. He not'ed 6 0 t o 70 percent o f t h e inmates i n t h e Maricopa County j a i l a r e r e p e a t o f f e n d e r s , and he expressed concern about r e l e a s i n g anyone who might commit another crime. He emphasized t h e Committee's f i r s t c o n s i d e r a t i o n should be f o r t h e pub1 i c i t serves and t h e second c o n s i d e r a t i o n should be f o r t h e person who a l r e a d y p a r t i c i p a t e d i n a f a i r process and r e c e i v e d a sentence.

Senator Blanchard n o t e d f o u r i s s u e s should be considered i n r e l a t i o n t o p a r i t y review, namely, who makes t h e d e c i s i o n , what standard i s a p p l i e d , what cases are e l i g i b l e and how t h e y a r e i n i t i a t e d .
M r . Neely asked i f i t would be p o s s i b l e t o c o n s i d e r p a r t i c u l a r p r o p o s a l s a t t h e n e x t meeting t o enable t h e Committee t o move i n a s i n g l e d i r e c t i o n . Senator Noland i n d i c a t e d i t i s necessary t o a c q u i r e a sense o f d i r e c t i o n from t h e Committee and asked t h a t a l l t h e members express t h e i r p o i n t s o f view on t h e issues.

Dr. B l o c k i n d i c a t e d he f a v o r s an extremely c a u t i o u s view, adding t h a t he has some sympathy f o r f o c u s i n g on some extreme cases b u t does n o t agree w i t h a general p a r i t y r e v i e w process. Ms. D u f f y s t a t e d t h a t a t t h i s p o i n t she does n o t support p a r i t y r e v i e w s i n c e over 90 p e r c e n t o f t h e people i n p r i s o n a r e t h e r e under p l e a agreements. However, she expressed support f o r t h e concept o f expanded commutation r e v i e w .
M r . Davis agreed w i t h t h e two p r e v i o u s comments and t h e i d e a o f h a v i n g a couple o f proposals f o r c o n s i d e r a t i o n .

R e p r e s e n t a t i v e Hubbard emphasized t h e need f o r t h e Committee t o c o n s i d e r t h e t y p e s o f cases f o r p a r i t y r e v i e w and t h e mechanism by which t h e y w i l l be reviewed. R e p r e s e n t a t i v e B a i r d s a i d t h e Committee should c o n s i d e r a 1 i m i t e d number of c a t e g o r i e s and a l i m i t e- process as recommended by Senator Blanchard and d M r . Neely. Senator Noland agreed i t i s necessary t o s e t parameters w i t h 1 i m i t e d c a t e g o r i e s and c o n s i d e r how e x c e p t i o n a l cases a r e s t r u c t u r e d w i t h i n S.B. 1049. Senator Blanchard r e i t e r a t e d t h e f o u r q u e s t i o n s he posed e a r l i e r . He i n d i c a t e d he g e n e r a l l y supports some t y p e o f clemency process and a t h r e s h o l d t h a t w i l l keep t h e numbers down. He noted t h e r e i s a group o f i n d i v i d u a l s i n t h e p r i s o n system who would have been p r o b a t i o n e l i g i b l e under t h e new code, which may be

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an area to consider. Senator Blanchard also indicated he is very wary of parity review because of the plea bargaining and stipulated sentencing processes, adding that he would not like to second guess decisions which have already been made in the criminal justice system. Ms. Hughes maintained there should be a 1 imited parity review and agreed the process should not include people who were convicted by virtue of plea agreements. Judge Reinstein indicated parity review should pertain to individuals who go to trial, particularly in the area of victimless crimes. He noted his main concern relates to low-level drug cases which received mandatory sentences under the old code but would otherwise receive only probation under the new code. He said other situations to consider include those drug cases below the new threshold and Hannah priors. Judge Reinstein commented that the State of Kansas reached a compromise to review only those offenders in prison who would have been probation el igi ble at the time of sentencing under the new sentencing guide1 ines. He a1 so endorsed the concept of a commutation modification process. Mr. Pearce reiterated his concerns about any parity review process and indicated he is not very sympathetic towards those in prison on drug charges, adding he does not feel those are victimless crimes due to the impact on the community. Ms. Burke spoke on behalf of Director Lewis, noting that he is philosophically opposed to parity review. She said he is concerned about the recidivism rates and what value the process would have other than putting people back on the streets to commit additional crimes. Mr. Albo spoke in support of Senator Blanchard's concept and said he hopes to see some way to deal with the inmates who were imprisoned prior to 1978 under indeterminate sentences. He a1 so indicated he prefers to exclude a review of sentences that were arrived at by plea agreements. Ms. Hamm expressed her support for parity review. She noted that Middle Ground proposed language a couple of years ago for a parity commutation that would allow the Governor to grant a special kind of commutation and indicated she would 1 i ke to bring that back to the Committee for consideration. Mr. Levy offered support for the expanded commutation process on a 1 imi ted scope. Mr. Maziarz indicated opposition to any form of parity review, adding that any 1 egi sl ative changes in the provisions of the sentencing statute should be appl ied prospectively. He emphasized fairness dictates that people who committed certain offenses when punishments were set should serve those sentences. Mr. Neely reiterated his responsi bil i ty for plea agreements and that defendants should be required to take responsi bil ity as we1 1 . He said he is opposed to parity review conceptually. However, he indicated some process needs to be avai 1 abl e to adequately address 1 egi sl at i ve changes resul t ing in di sproport i onate sentences and added that the commutation process is a likely avenue.

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M a r i l y n K r a u s c h i reoresentinct F a m i l i e s Actainst Mandatory Minimums. advocated t h e need f o r p a r i t y r e v i e w o f d i s p r o p o r t i o n a t e sentences (remarks f i l e d w i t h o r i g i n a l minutes). Representative B a i r d i n d i c a t e d t h a t due t o t i m e c o n s t r a i n t s t h e d i s c u s s i o n o f sentence r e c l a s s i f i c a t i o n would be heard a t t h e n e x t meetinQ. No d a t e was s e t f o r t h e meeting b u t Representative B a i r d i n d i c a t e d he and Senator Noland would make a d e c i s i o n on a d a t e and n o t i f y t h e members. I t was decided t h a t any p r o p o s a l s from members would be sent t o s t a f f i n t h e n e x t week o r two and t h e y would make them a v a i l a b l e f o r t h e f u l l Committee. A l s o on f i l e w i t h o r i g i n a l minutes a r e memos from s t a f f w i t h attachments of i n f o r m a t i o n f o r t h e Committee's review. The meeting adjourned a t 11:54 a.m.

Committee S e c r e t a r y (Minutes and attachments a r e on f i l e w i t h t h e O f f i c e o f t h e Senate S e c r e t a r y . )

ARIZONA STATE LEGISLATURE Minutes o f Meeting STATE SENTENCING GUIDELINES AND PARITY REV1E STUDY COMMITTEE W F r i d a y , October 1, 1993 Senate Hearing Room 1 - 9:30 a.m. Senator Noland c a l l e d t h e meeting t o o r d e r a t 9:36 a.m. and attendance was noted. See a t t a c h e d sheet f o r o t h e r attendees. Members Present Joe A r p a i o Audrey Burke ( f o r Sam Lewis) Raul Castro David D e r i ckson Senator B l anchard Senator Noland, Cochair Members Absent Joe Albo, J r . Dr. Michael Block Tom Freestone C a t h e r i n e Hughes Joe Mazi a r z R e p r e s e n t a t i v e Hubbard Karen D u f f y Donna Leone Hamm Jay H e i l e r ( f o r K u r t D a v i s ) Stephen Neely Judge Ronald R e i n s t e i n Representative B a i r d , Cochair Staff J o n i Hoffman, Senate Dominica Minore, House

Dr. D a r v l F i scher. r e ~ r e s e n t i n q D e ~ a r t m e n t o f C o r r e c t i o n s (DOC), presented numerical i n f o r m a t i o n concerning t h e cases t h a t c o u l d be e l i g i b l e f o r p a r i t y review, i n c l u d i n g those under Arizona Revised S t a t u t e s S e c t i o n 13-604.02, p e r t a i n i n g t o o f f e n s e s committed w h i l e r e l e a s e d from confinement; S e c t i o n 13-604.H., p e r t a i n i n g t o Hannah p r i o r s ; S e c t i o n 13-1501, p e r t a i n i n g t o b u r g l ary/shopl if t i n g and S e c t i o n s 13-3407 and 13-3408, p e r t a i n i n g t o drug t h r e s h o l d s . Dr. F i scher e x p l a i n e d t h a t t h e s t a t i s t i c s f o r d r u g thresh01 ds and b u r g l ary/shopl if t i n g i n c l u d e o n l y those cases which went t o tri a1 and exclude p l e a agreement cases. Dr. F i s c h e r r e p o r t e d t h a t 91 inmates a r e c u r r e n t l y i n p r i s o n w i t h l i f e sentences f o r c o m m i t t i n g offenses w h i l e on r e l e a s e from confinement. Dr. F i s c h e r o f f e r e d a breakdown o f t h e t y p e s o f crimes t h a t were committed by t h e o f f e n d e r s w h i l e on r e l e a s e i n o r d e r t o p r o v i d e a view o f t h e seriousness o f t h e cases. He i n d i c a t e d t h e r e were s i x cases o f f i r s t degree murder ( c l a s s 1 f e l o n y ) , t h r e e cases o f f i r s t degree attempted murder ( c l a s s 2 f e l o n y ) , two cases o f second degree murder ( c l a s s 1 f e l o n y ) , two cases o f second degree attempted murder ( c l a s s 2 f e l o n y ) , t h r e e cases o f manslaughter ( c l a s s 3 f e l o n y ) , t e n cases o f kidnapping ( c l a s s 2 f e l o n y ) , f i v e cases o f sexual a s s a u l t ( c l a s s 2 f e l o n y ) , one case o f sexual conduct w i t h a minor ( c l a s s 2 f e l o n y ) , one case o f c h i l d abuse ( c l a s s 2 f e l o n y ) , 22 cases o f aggravated a s s a u l t ( c l a s s 3 f e l o n y ) , 22 cases o f armed robbery ( c l a s s

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2 f e l o n y ) and two cases of f i r s t degree b u r g l a r y ( c l a s s 2 f e l o n y ) , which t o t a l 79. O f t h e remaining 12 offenders,. s i x i n v o l v e d t r a f f i c k i n g i n n a r c o t i c drugs ( c l a s s 2 f e l o n y ) , f i v e were f o r possession o f n a r c o t i c drugs ( c l a s s 4 felony) and one i n v o l v e d t r a f f i c k i n g i n dangerous drugs ( c l a s s 3 f e l o n y ) . Dr. Fischer observed t h a t o f t h e 9 1 offenders i n p r i s o n w i t h l i f e sentences f o r committing offenses w h i l e on release, t h e vast m a j o r i t y i n v o l v e d v i o l e n t crimes and m u l t i p l e charges. M r . Derickson asked i f t h e 91 offenders were convicted a f t e r j u r y t r i a l s o r whether p l e a agreements were involved, t o which Dr. F i s c h e r suggested t h a t probably a s i g n i f i c a n t number i n v o l v e d t r i a l s . He p o i n t e d o u t t h a t about ten percent o f a l l inmates i n t h e p r i s o n system were convicted by way o f t r i a l s , adding t h a t t h e f i g u r e i s probably h i g h e r f o r t h e cases under discussion.

Judge R e i n s t e i n asked i f t h e l e v e l o f drug possession o r t r a f f i c k i n g can be determined f o r t h e 12 i n d i v i d u a l s sentenced t o l i f e f o r v a r i o u s drug offenses. Dr. F i s c h e r s a i d he would check on t h a t i n f o r m a t i o n . He noted t h a t i n most cases a s i g n i f i c a n t amount o f drugs was probably i n v o l v e d i n o r d e r f o r t h e prosecutor t o pursue t h a t type o f penalty. Judge R e i n s t e i n questioned whether some s i t u a t i o n s might i n v o l v e defendants who p r o c l a i m t h e i r innocence and are c o n v i c t e d i n a t r i a l , t o which Dr. Fischer agreed t h a t i s possible. Senator Noland observed t h a t t h e o n l y r e a l changes made t o t h e c r i m i n a l code which would a f f e c t any o f t h e cases mentioned l i e w i t h i n t h e m a t r i x f o r nondangerous, n o n v i o l e n t offenses and would conceivably o n l y i n v o l v e t h e 1a s t 12 cases discussed. Dr. F i s c h e r p o i n t e d o u t t h a t t h e new l e g i s l a t i o n e l i m i n a t e s the 1 if e p e n a l t y f o r crimes committed whi 1e r e 1eased from confinement , which includes a l l of t h e v i o l e n t crimes mentioned. He agreed t h a t t h e m a t r i x i s maintained f o r t h e most v i o l e n t crimes b u t added t h a t i s a separate issue. Senator Noland noted t h a t a l i f e sentence i n t h i s instance i s a c t u a l l y 25 years, t o which Dr. F i s c h e r acknowledged t h a t t h e sentence c o n s t i t u t e s l i f e w i t h a 25-year minimum. Senator Noland observed t h a t i n some cases t h e new l e g i s l a t i o n increased t h e p e n a l t i e s on t h e m a t r i x f o r v i o l e n t crimes t o 28 years, and Dr. F i s c h e r responded t h a t v a r i o u s p a r t s o f t h e m a t r i x were kept i n t a c t . He p o i n t e d o u t t h a t t h e new law e t t m i n a t e s p a r o l e e l i g i b i l i t y and t h e o f f e n d e r w i l l have t o serve 85 percent o f t h e sentence, which w i l l r e s u l t i n more time being served f o r many v i 01 e n t offenders. Ms. Burke asked i f t h e r e a r e s t a t i s t i c s a v a i l a b l e f o r inmates sentenced under Section 13-604.02.0 s i n c e they w i l l be e l i g i b l e f o r r e l e a s e on earned release c r e d i t s t o comnuni t y s u p e r v i s i o n under t r u t h i n sentencing p r o v i s i o n s , w h i l e under t h e c u r r e n t c r i m i n a l code they have t o serve a f l a t sentence. Dr. Fischer estimated t h a t about 600 c u r r e n t inmates were sentenced under t h a t p r o v i s i o n . Dr. Fischer continued h i s p r e s e n t a t i o n by addressing Section 13-604.H, concerning Hannah p r i o r s . He explained t h a t t h e Hannah p r i o r p r o v i s i o n allows f o r the consol i d a t i o n f o r t r i a l purposes o f one o r more offenses committed on t h e same occasion and a l l o w s one o r more o f those offenses t o be a l l e g e d as p r i o r c o n v i c t i o n s . He i n d i c a t e d t h a t t h e new law provides an e n t i r e l y new m a t r i x f o r

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Hannah p r i o r s which r e s u l t s i n an e x t e n s i o n o f t h e normal m a t r i x . He noted t h a t a c u r r e n t c o n v i c t i o n u s i n g Hannah p r i o r i s t r e a t e d as an a c t u a l p r i o r c o n v i c t i o n and s u b j e c t t o t h e p r o v i s i o n s o f S e c t i o n 13-604 as a r e p e t i t i v e offense. However, Dr. F i s c h e r e x p l a i n e d t h a t under t h e new l a w t h e penal t i e s caused by u s i n g Hannah p r i o r s a r e l e s s severe than those f o r r e p e t i t i v e o f f e n d e r s , which b r i n g s about t h e p o s s i b i l i t y o f p a r i t y r e v i e w t o e q u a l i z e those p e n a l t i e s . Dr. F i s c h e r observed t h a t t h e r e was some q u e s t i o n a t t h e l a s t meeting about h i s e s t i m a t e o f 371 c u r r e n t inmates c o n v i c t e d u s i n g Hannah p r i o r s , and he added t h a t he checked t h e f i l e s and found t h a t number t o be c o r r e c t . He f u r t h e r noted t h a t t h e Hannah p r i o r cases amount t o about 9 1/2 p e r c e n t o f t h e t o t a l 3,900 o f f e n d e r s c u r r e n t l y sentenced pursuant t o t h e r e p e t i t i v e o f f e n s e s t a t u t e . Senator Noland observed t h a t t h e q u e s t i o n a t t h e l a s t meeting concerning t h e number o f Hannah p r i o r s p e r t a i n e d t o t h e d i f f e r e n c e between t h e number o f 371 p r o v i d e d by Dr. F i s c h e r and t h e number o f 160 developed i n Dr. B l o c k ' s study. Dr. F i scher e x p l a i n e d t h a t t h e B l o c k study examined o f f e n d e r s who were sentenced by t h e c o u r t d u r i n g a one-year p e r i o d , adding t h a t t h e number accumulates i n t h e p r i s o n system over a p e r i o d o f t i m e and r e s u l t s i n a l a r g e r number. R e p r e s e n t a t i v e B a i r d asked i f t h e f i l e s a r e complete enough t o i n d i c a t e which o f f e n s e i s t h e c u r r e n t o f f e n s e and which a r e c o n s i d e r e d t o be Hannah p r i o r s , t o which Dr. F i scher answered a f f i r m a t i v e l y . Judge R e i n s t e i n asked i f i t can be determined whether someone had a c t u a l p r i o r c o n v i c t i o n s b u t t h e p r o s e c u t o r decided t o u t i l i z e Hannah p r i o r s because t h e process i s e a s i e r . Dr. F i s c h e r r e p l i e d t h a t i t i s p o s s i b l e t o separate those cases which have a c t u a l p r i o r s . Dr. F i s c h e r c o n t i n u e d h i s p r e s e n t a t i o n by addressing t h e t h i r d area o f h i s review, S e c t i o n 13-1501, which under t h e new l a w p r o h i b i t s t h e c h a r g i n g o f b u r g l a r y f o r an i n c i d e n c e o f s h o p l i f t i n g . He i n d i c a t e d t h a t h i s r e v i e w o f t h e f i l e s f o r p o s s i b l e impact on p a r i t y r e v i e w i n t h i s area was i s o l a t e d on t h e c a t e g o r y o f b u r g l a r y i n t h e t h i r d degree i n which s h o p l i f t i n g cases a r e concentrated. Dr. F i s c h e r n o t e d t h a t as o f June 30, 1993, t h e r e were 1,001 inmates i n t h e p r i s o n system c o n v i c t e d o f b u r g l a r y i n t h e t h i r d degree, and i n 99 o f t h o s e cases g u i l t was e s t a b l i s h e d by way o f t r i a l as opposed t o a p l e a of g u i l t y . Dr. F i s c h e r f u r t h e r e x p l a i n e d t h a t 28 o f t h e 99 cases a c t u a l l y i n v o l v e d a shopl i f t i n g i n c i d e n t . Senator Noland asked i f t h e two b u r g l a r i e s mentioned e a r l i e r i n t h e d i s c u s s i o n o f t h o s e l i f e sentences f o r o f f e n s e s committed w h i l e on r e l e a s e were f o r shopl i f t i n g . Dr. F i s c h e r e x p l a i n e d t h a t those two b u r g l a r i e s i n t h e f i r s t degree were v i o l e n t i n s t a n c e s o f inmates on r e l e a s e b r e a k i n g i n t o homes and i n j u r i n g t h e occupants. Senator Blanchard observed t h a t most o f t h e 79 v i o l e n t o f f e n d e r s had a dangerous a l l e g a t i o n , and he contended t h a t a good percentage o f those inmates p r o b a b l y have h i s t o r i c a l p r i o r s . He questioned i f a m a j o r i t y o f those 79 o f f e n d e r s would be f a c i n g new sentences because t h e y would r e c e i v e t h e presumptive maximum of 28

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t o 35 years. Dr. F i s c h e r agreed t h a t i n t h e v a s t m a j o r i t y o f t h e cases the offenders were sentenced pursuant t o t h e dangerousness p r o v i s i o n o f t h e code, which coupled w i t h t h e maximum would g i v e them a q u i t e l e n g t h y sentence. Senator Blanchard observed t h a t t h e c l a s s one f e l o n y offenses would r e c e i v e l i f e sentences, t o which Dr. F i scher agreed. Senator Bl anchard questioned whether very many o f those 79 v i o l e n t offenders c o u l d r e a l i s t i c a l l y argue a case f o r d i s p r o p o r t i o n a l i t y o f t h e i r sentences. Dr. Fischer i n d i c a t e d t h e r e c o u l d be some concern w i t h t h e 22 aggravated a s s a u l t cases. Dr. Fischer continued by addressing t h e f o u r t h area which c o u l d p o t e n t i a l l y be s u b j e c t t o p a r i t y review, t h e drug thresholds f o r dangerous and n a r c o t i c drugs under Sections 13-3407 and 13-3408. I t was determined t h a t as o f June 30, 1993, a t o t a l o f 1,164 offenders i n t h e p r i s o n system were sentenced pursuant t o one o f those two s t a t u t e s i n which t h e r e was a mandatory sentence, and a sampling o f 249 o f those cases determined t h e f o l l o w i n g breakouts. Of t h e 249, 106 o r 42.6 percent had drug amounts a t o r above t h e new s t a t u t o r y t h r e s h o l d amount f o r the type o f drug involved, which Dr. Fischer i n d i c a t e d would o b v i o u s l y n o t be subject t o p a r i t y review. He continued by s t a t i n g t h a t 108 o r 43.4 percent had drug amounts below t h e new t h r e s h o l d b u t were convicted by way o f a p l e a o f g u i l t y , adding t h a t e l i g i b i 1 it y o f these i n d i v i d u a l s f o r p a r i t y review depends on whether t h e Committee wants t o 1 i m i t a review t o t r i a l cases. I n a d d i t i o n , t h e f i n a l 35 o r 14.1 percent had drug amounts below t h e new t h r e s h o l d amounts and were c o n v i c t e d a t t r i a l , which according t o t h e i n t e r e s t o f t h e Committee c o u l d be s u b j e c t t o p a r i t y review. Dr. Fischer i n d i c a t e d t h a t an a p p l i c a t i o n o f t h e 14.1 percent t o t h e t o t a l o f 1,164 o f f e n d e r s r e s u l t s i n an estimated 164 inmates i n t h e p r i s o n p o p u l a t i o n who f a l l below t h e t h r e s h o l d and were a l s o convicted a t trial. Senator Blanchard suggested t h a t t h e f i g u r e represents t h e upper range o f people who might be e l i g i b l e f o r reduced sentences, adding t h a t some might n o t be e l i g i b l e because o f o t h e r mandatories running c o n c u r r e n t l y w i t h t h e i r drug sentences, t o which Dr. Fischer answered a f f i r m a t i v e l y . Senator No1and questioned i f any o f t h e f i g u r e s would be dupl i c a t e d i n t h e Hannah p r i o r numbers, t o which Dr. Fi-scher s t a t e d t h a t h i s review o f i n d i v i d u a l cases d i d n o t r e v e a l any t h a t i n v o l v e more than one o f t h e p r o v i s i o n s under discussion. He acknowledged t h a t t h e r e i s probably a f a i r l y small over1 ap which may reduce t h e t o t a l number s l i g h t l y . Dr. Fischer concluded by r e p o r t i n g t h a t t h e maximum number o f cases which might b e n e f i t from some type o f p a r i t y review i s 654 o r 3.8 percent o f t h e t o t a l p r i s o n population, as o f June 30, 1993, and he p o i n t e d out t h a t t h e p r i s o n p o p u l a t i o n grows a t a r a t e o f 1,140 p e r year. Senator Noland contended t h a t t h e numbers which would r e a l i s t i c a l l y be included i n any type o f d i s c u s s i o n o f p a r i t y review would probably be somewhere between 500 and 654. She a l s o c l a r i f i e d t h a t t h e Committee i s n o t charged w i t h reviewing these cases b u t r a t h e r w i t h recommending t o t h e L e g i s l a t u r e whether an e n t i t y Ms. Hamm asked should perform p a r i t y review and how i t w i l l be accomplished. what t h e t o t a l number o f inmates would be i n t h e c a t e g o r i e s under d i s c u s s i o n if p l e a agreement cases are included, t o which Dr. Fischer i n d i c a t e d t h e t o t a l would be 885.

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There was discussion o f proposals submitted by Committee members, beginning w i t h Senator B l anchard's clemency review proposal ( f i l e d w i t h o r i g i n a l minutes). Representative B a i r d questioned i f t h e idea o f the proposal i n v o l v e s a t e c h n i c a l review o f t h e f i l e s t o determine e l i g i b i l it y and what the new sentence would be, w i t h t h e Board o f Executive Clemency h o l d i n g hearings t o determine whether an inmate should r e c e i v e a d i f f e r e n t sentence. Senator Blanchard answered affirmatively. Judge R e i n s t e i n asked i f any o f t h e f o u r e l i g i b i l i t y categories i n the Blanchard proposal includes inmates convicted s o l e l y using Hannah p r i o r s , t o which Senator Blanchard s a i d he a n t i c i p a t e s those cases would be included i n the f i n a l category l i s t e d i n h i s proposal. Judge Reinstein commented on the p a r i t y review process being conducted i n Kansas, i n which offenders i n p r i s o n who would have been candidates f o r nonimpri sonment sanctions have t h e i r sentences reviewed by the prosecutor from t h e county i n which they received t h e i r sentences. He contended t h a t such a procedure would e l i m i n a t e the need f o r a hearing i f the prosecutor does n o t p r o t e s t t h e re1 ease determination. M r . Derickson commented on Senator Blanchard's proposal which i n d i c a t e s t h a t the standard f o r recommending a change i n a sentence would i n c l u d e whether p u b l i c s a f e t y would n o t be endangered by t h e r e l e a s e o f t h e p r i s o n e r . M r . Derickson asked i f t h e p u b l i c s a f e t y issue should be f a c t o r e d i n t o determining whether an i n d i v i d u a l would be e l i g i b l e f o r e a r l i e r parole. Senator Blanchard s a i d i t might be a p p r o p r i a t e t o make t h e u l t i m a t e r e l e a s e d e c i s i o n and p u b l i c s a f e t y d e t e r m i n a t i o n c l o s e r t o t h e time o f r e l e a s e a1 though some sentencing changes may be s i g n i f i c a n t enough t o be d e a l t w i t h i n t h e same hearing. M r . Derickson said i t appears t o be a sense o f t h e Committee t h a t once a d e c i s i o n has been made t h a t a p a r o l e e l i g i b i l i t y date w i l l be shortened t h a t the actual question o f release remain up t o t h e Board o f Executive Clemency w i t h t h e d e c i s i o n t o be made c l o s e r t o t h e actual time o f release. M r . Derickson questioned i f t h e categories o f cases under discussion f o r p o s s i b l e p a r i t y review should be a u t o m a t i c a l l y reviewed r a t h e r than using an appl i c a t i o n process. He contended t h e r e ape many i n d i v i d u a l s i n p r i s o n f o r sentences longer than what would be expected under t h e present code, .including people who went t o t r i a l and those who were forced t o take a p l e a because o f t h e f a c t they were f a c i n g l i f e imprisonment o r a l a r g e number o f years. M r . Derickson acknowledged t h a t t h e c a t e g o r i e s which are g e n e r a l l y agreed as e l i g i b l e f o r considerat i o n c o u l d be a u t o m a t i c a l l y reviewed. However, he questioned i f t h e r e should be a process whereby p r i s o n e r s can apply t o t h e Board o f Executive Clemency on the b a s i s o f t h e i r own i n d i v i d u a l circumstances i f they can demonstrate t h a t t h e i r sentences are l o n g e r than what they would be exposed t o under t h e new code. Senator Blanchard p o i n t e d out t h a t he d i d n o t s p e c i f i c a l l y s e t out the f o u r c a t e g o r i e s which c o u l d be e l i g i b l e f o r some type o f p a r i t y review i n h i s proposal, a1 though he acknowledged those categories are u s e f u l f o r determining what t h e numbers are. However, he emphasized t h a t t h e one category he would 1 ike t o exclude i n v o l v e s t h e changes i n t h e t h e f t s t a t u t e which were implemented by reasons o f i n f l a t i o n and n o t f o r reasons o f a p o l i c y s h i f t . Senator Blanchard

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a1 so noted that he was under the impression at the last meeting that there were far more people under the plea bargain cases than it appears there are. He added that the two concerns with plea bargains include the opening of the floodgate and the pol icy issue of whether the same plea using a different charging system would result in a significantly different bargain, which is why plea agreement cases are excluded from his proposal. Senator Blanchard noted that one exception includes drug offenses because of the change from a system of mandatory prison time to a position of probation eligibility, in which case the entire bargain probably would change. Another exception includes allegations of offenses committed while on release status since the bargain may be very different. Senator Blanchard suggested that perhaps one way to deal with the issue of plea bargains is to utilize a process similar to the Kansas model whereby a prosecutor could decide that he has no problem with undoing a plea agreement. Mr. Neely contended that it appears there is a shift in the tenor of the discussion between this meeting and the last, noting that at the last meeting there was no significant support for parity review per se but there was considerable support for the notion of disproportional i ty review. He emphasized that he has not changed his position about the disproportional ity issue even though the numbers appear to be smaller than what was originally thought, stressing that the issue is an ethical one for him and not an issue of numbers. Mr. Neely reiterated that there are people who have been subject to sentencing laws throughout the last 15 years who have legitimate claims that their sentences are disproportionate to those of like situated offenders, which has nothing to do with the recent a1 teration of the criminal code. He suggested another approach for consideration should be to ensure that the disproportional i ty review process, through which appl i cations are forwarded by superior court judges and which currently exists for people sentenced since 1 ast year, be applicable to people sentenced prior to the institution of that process. Mr. Neely a1 so reiterated that the issue of plea bargaining has 1 i ttle to do with numbers but rather with the fact that an agreement was entered into with the defendant. He agreed that some people will take the position that some offenders were probably forced into plea bargains as a result of the awesome consequences. However, he emphasized that the standard of "beyond a reasonable doubt" does not disappear simply because the consequences are awesome, adding that it is clear that people who have chosen to plead guilty have done so because of the probabil i ty of conviction. Mr. Neely a1 so noted that disproportional i ty does not have anything to do with comparisons between sentences under the past code and the 1993 code and that it can be establ i shed by the current judicial standard or a standard recommended by the Committee. Senator Noland questioned how a case would be forwarded to the Board of Executive Clemency if a particular judge is no longer available to review a sentence and she asked Mr. Neely what his recommendation on disproportionality would be. Mr. Neely suggested there be some variation of the method by which a superior court judge refers a case to the Board because of an excessive or

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d i s p r o p o r t i o n a t e sentence. He proposed t h a t any inmate who f e e l s h i s sentence fa1 1 s w i t h i n a defined d i s p r o p o r t i o n a l it y o r excessive standard can submit a p e t i t i o n t o the t r i a l c o u r t , adding t h a t any judge could hear t h e case based on the records i n order t o determine whether any f u r t h e r a c t i o n should be taken. Senator No1 and asked M r . Neel y how he would d e f i n e d i s p r o p o r t i o n a l it y M r . Neel y observed t h a t a d e f i n i t i o n would r e q u i r e considerable thought b u t he suggested d i s p r o p o r t i o n a l it y should n o t be d e f i n e d as a d i f f e r e n c e .between a sentence imposed 1a s t year and a sentence imposed t h i s year. He explained t h a t chronology does n o t have anything t o do w i t h d i s p r o p o r t i o n a l i t y and noted t h a t there i s amp1 e precedent i n c r i m i n a l 1aw f o r s e t t i n g a d i s p r o p o r t i o n a l it y standard. Judge R e i n s t e i n s a i d he does n o t have a problem w i t h t h e idea o f an a p p l i c a t i o n being made by an inmate t o t h e sentencing c o u r t . However, he suggested t h a t more consistency would e x i s t i n a d i s p r o p o r t i o n a l it y review a t t h e Board o f Executive Clemency r a t h e r than b e f o r e numerous d i f f e r e n t judges. He added t h a t under the new p r o v i s i o n t h e judges review t h e presentence r e p o r t and have t h e prosecutor, defense a t t o r n e y s and t h e v i c t i m a v a i l a b l e t o a s s i s t i n a recommendation, p o i n t i n g out t h a t o l d e r cases may n o t have those resources a v a i l a b l e . Representative B a i r d questioned how a d i s p r o p o r t i o n a l i t y review c o u l d be l i m i t e d , t o which M r . Neely emphasized t h e need f o r a standard. Senator Noland asked M r . Neely i f h i s proposal a l s o excludes p l e a agreements, t o which he answered a f f i r m a t i v e l y . However, he suggested t h a t the standard o f d i s p r o p o r t i o n a l i t y be received by people s i m i l a r l y s i t u a t e d . Representative B a i r d s a i d he has a hard time conceiving t h a t a standard can be d r a f t e d which w i l l discourage t h e e n t i r e p r i s o n p o p u l a t i o n from applying. M r . Neely noted t h a t w h i l e once working f o r a Federal judge he had t o review thousands o f a p p l i c a t i o n s f o r c i v i l r i g h t s and habeas corpus r e l i e f , adding t h a t i t d i d n o t take l o n g t o make a determination whether t h e a p p l i c a t i o n s met minimum standards. Ms. Hamm expressed concern about t h e d i f f i c u l t y i n understanding the d i s t i n c t d i f f e r e n c e between p r o p o r t io n d i t y review and p a r i t y review. She maintained t h a t both p r o p o r t i o n a l i t y and p a r i t y review issues would p e r t a i n i n h e r example of someone sentenced today t o t e n years i n p r i s o n f o r t h e f t b u t who could have only r e c e i v e d a maximum o f f i v e years under t h e new code.

.

M r . Neely i n d i c a t e d he i s uncomfortable w i t h t h e terminology i n t h e Blanchard d r a f t proposal r e f e r r i n g t o s i g n i f i c a n t d i s p r o p o r t i o n a l it y , p a r t i c u l a r l y i n 1 i g h t o f Ms. Hamm's p o s i t i o n t h a t a f i v e - y e a r d i s p a r i t y between o l d and new codes i s s i g n i f i c a n t l y d i s p r o p o r t i o n a t e . He maintained t h a t a r e v i s i o n o f t h e code, which a l t e r s sentences from what t h e i n d i v i d u a l was accountable f o r a t t h e time the crime was committed, i s n o t a compulsion t o a1 t e r a sentence.
Ms. Hamm commented on t h e l i s t of inmates i n c a r c e r a t e d under t h e pre-1978 code presented by D r . F i s c h e r a t t h e l a s t meeting. She p o i n t e d out t h a t 60 on the l i s t were c o n v i c t e d o f second degree murder and are s e r v i n g l i f e sentences w i t h two s e r v i n g death sentences. She observed t h a t under t h e c u r r e n t c r i m i n a l code

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they c o u l d n o t r e c e i v e a l i f e sentence f o r second degree murder n o r a death sentence. She commented on Senator Blanchard's e a r l i e r statement t h a t n o t many on t h e l i s t would be a f f e c t e d , and she asked i f 60 c o n s t i t u t e s a l a r g e number. Senator Blanchard questioned whether inmates sentenced f o r second degree murder would r e a l i s t i c a l l y be released under any proposal, p o i n t i n g out t h a t some o f those i n d i v i d u a l s have such strong c r i m i n a l records i n v o l v i n g o t h e r crimes. He noted t h a t t h e issue a t t h e l a s t meeting was t h a t perhaps thousands might be e l i g i b l e f o r consideration. Ms. Hamm emphasized t h a t t h e d e c i s i o n t o r e l e a s e t h e 60 people on t h e l i s t a t some p o i n t i s n o t f o r t h e Committee t o decide. She noted t h a t i n a p a r i t y review t h e d e c i s i o n i n v o l v e s whether these sentences should be made equal t o what the o f f e n d e r s would r e c e i v e today. She p o i n t e d out t h a t t h e r e i s a d e f i n i t e requirement under s t a t u t e today t h a t an o f f e n d e r convicted o f second degree murder would some day be e l i g i b l e f o r parole, whereas t h e people on t h e l i s t are s e r v i n g pre-1978 code l i f e sentences w i t h no chance o f p a r o l e e l i g i b i l i t y . Senator Blanchard p o i n t e d o u t t h a t those i n d i v i d u a l s would be able t o apply as h i s proposal i s c u r r e n t l y d r a f t e d . However, he i n d i c a t e d t h a t whether they would b e n e f i t from a review i s another issue. He added t h a t he i s opposed t o any by-the-numbers process since t h e concept i n v o l v e s a s u b j e c t i v e process w i t h p u b l i c s a f e t y as an issue.

M r . Derickson agreed w i t h M r . Neely on t h e issue o f d i s p r o p o r t i o n a l it y and noted t h a t M r . Neely's proposal addresses t h e category o f people i n p r i s o n n o t l i s t e d i n t h e Blanchard proposal who may have a d i s p r o p o r t i o n a t e sentence under the circumstances. He a l s o agreed t h a t a standard would p r o v i d e a screening mechanism.
Judge R e i n s t e i n maintained t h a t inmates cannot be prevented from review o f t h e i r sentences no m a t t e r what standard i s implemented. Representative B a i r d t h a t screening represents a problem and a time. He informed t h e Committee t h a t he has already received a p p l i c a t i o n s i n d i c a t i n g e l i g i b i l i t y f o r p a r i t y review on t h e L e g i s l a t u r e ' s e s t a b l ishment o f a Committee on t h e i.ssue. applying f o r a He agreed w i t h g r e a t deal o f w e l l over 150 b a s i s o f the

Representative B a i r d asked i f l i m i t s o r t h r e s h o l d t e s t s should be placed on a d i s p r o p o r t i o n a t e review, t o which Judge R e i n s t e i n s a i d he be1 ieves t h e r e should be a threshold.

M r . Neely commented on t h e study performed by D C d u r i n g t h e t r u t h i n sentencing O process p e r t a i n i n g t o t h e average number o f years someone would serve i n p r i s o n O f o r a p a r t i c u l a r k i n d o f offense. He asked i f D C maintains those numbers, t o which Dr. F i scher answered a f f i r m a t i v e l y . M r . Neely suggested t h a t t h e sentence g i v e n t o an inmate who makes an appl i c a t i o n c o u l d be compared against t h e numbers compiled r e g u l a r l y by DOC, which could p r o v i d e a comparative standard t o determine whether a p e t i t i o n meets t h e threshold. M r . Neely contended t h a t t h e i s s u e should i n v o l v e an a d m i n i s t e r i a l a c t i o n t h a t can be accomplished w i t h few man hours. Senator Noland p o i n t e d o u t t h a t a recommendation by t h e Committee t o

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t h e L e g i s l a t u r e f o r a r e v i e w process should a1 so i n c l u d e a recommendation f o r t h e funds t o accomplish t h e t a s k . Ms. Hamm o u t 1 i n e d h e r proposal f o r a p a r i t y r e v i e w process ( f i l e d w i t h o r i g i n a l minutes). Ms. Burke commented on t h e d i s p a r i t y f o r inmates who c u r r e n t l y do n o t have an earned r e l e a s e c r e d i t d a t e i f t h e r e i s a c o n s e c u t i v e sentence t o be served., She i n d i c a t e d t h e r e a r e between 1,000 t o 2,000 inmates w i t h c o n s e c u t i v e sentences who a r e e l i g i b l e f o r p a r o l e t o a c o n s e c u t i v e sentence, w i t h about 60 p e r c e n t being g r a n t e d such p a r o l e . Ms. Burke addressed t h e s i t u a t i o n when t h e c r i m i n a l code was r e v i s e d i n 1978 and inmates were suddenly g i v e n t h e o p p o r t u n i t y f o r p a r o l e t o a c o n s e c u t i v e sentence. She e x p l a i n e d t h a t t h e L e g i s l a t u r e a l s o p r o v i d e d t h e same c o n s i d e r a t i o n f o r pre-1978 code o f f e n d e r s as an automatic process w i t h o u t t h e need f o r p a r i t y review, and Ms. Burke contended t h a t such an a c t i o n m i g h t be s i m p l e r a t t h e p r e s e n t time. Judge R e i n s t e i n i n d i c a t e d t h a t t h e d e n i a l o f earned r e l e a s e c r e d i t s on c o n s e c u t i v e sentences seems t o be one o f t h e most c o n t r o v e r s i a l i s s u e s f o r inmates as i n d i c a t e d i n t h e a p p l i c a t i o n s he r e c e i v e s . Ms. Burke agreed, adding t h a t t h e inmates can earn t h e c r e d i t s b u t t h e r e i s n o t h i n g t o which t h e y can be a p p l i e d . She n o t e d t h a t t h e c u r r e n t d e f i n i t i o n o f an earned r e l e a s e c r e d i t d a t e means t h a t inmates have t o be e l i g i b l e f o r r e l e a s e t o t h e community and t h e y cannot have an earned r e l e a s e c r e d i t d a t e u n t i l t h e y a r e on t h e i r l a s t sentence.

M r . Burke c l a r i f i e d t h a t p r i o r t o August 1986 r e l e a s e c r e d i t s earned reduced t h e sentence imposed f o r an inmate t o enable them t o b e g i n s e r v i n g t h e c o n s e c u t i v e sentence. Inmates a l s o had t h e o p t i o n from 1978 on f o r p a r o l e t o t h e c o n s e c u t i v e sentence as w e l l . She n o t e d t h a t when S e c t i o n 41-1604.07 was amended i n 1986 t o s t a t e t h a t r e l e a s e c r e d i t s earned no l o n g e r reduced t h e sentence imposed and an earned r e 1 ease c r e d i t d a t e was e s t a b l ished f o r r e l e a s e t o t h e community, t h e area o f c o n s e c u t i v e sentences f o r these inmates was n o t s p e c i f i c a l l y addressed.
Judge R e i n s t e i n m a i n t a i n e d t h a t an a p p l i c a t i o n o f Ms. Burke's suggestion would p r o b a b l y t a k e a tremendous wor_kjoad o f f t h e t i m e computation u n i t a t DOC and t h e courts. Ms. H a m agreed t h a t t h e r e v i s i o n i n t h e s t a t u t e i n 1986 changed t h e e n t i r e a b i l it y f o r t h o s e inmates t o a p p l y earned r e l e a s e c r e d i t s when t h e y r o l l e d over t o a c o n s e c u t i v e sentence. She suggested t h a t c o n s i d e r a t i o n should be g i v e n t o a l l o w i n g an inmate who has earned a l l h i s r e l e a s e c r e d i t s t o use those c r e d i t s t o reduce t h e amount o f t i m e he would serve i n p r i s o n . R e p r e s e n t a t i v e B a i r d asked Ms. H a m t o comment on t h e d i f f e r e n c e s between h e r approach and t h a t o f M r . Neely's. Ms. Hamm agreed t h a t a p r o p o r t i o n a l it y r e v i e w i s a p p r o p r i a t e i f i t i n c l u d e s t h e c o n s i d e r a t i o n o f sentences t h a t a r e d i f f e r e n t under t h e new code from t h e p r e v i o u s codes. M r . Neely r e i t e r a t e d t h a t t h e i s s u e should be what sentence was g i v e n t o s i m i l a r l y s i t u a t e d people and whether t h e sentence c o u l d be c h a r a c t e r i z e d as e x c e s s i v e as a r e s u l t o f t h e circumstances.

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Senator No1and summarized t h e various p o i n t s brought o u t by t h e members, n o t i n g t h a t t h e general consensus i n v o l v e s a process through t h e Board o f Executive Clemency w i t h an i n i t i a l a p p l i c a t i o n review f o r t h e p r o p o r t i o n a l it y question. She i n d i c a t e d t h e need f o r a standard t o be s e t i n o r d e r t o reach another l e v e l f o r review. She added t h a t t h e process would be t h e same as e s t a b l i s h e d under t h e Clemency Board f o r d i s p r o p o r t i o n a t e sentences, although n o t n e c e s s a r i l y through 'the recommendation o f a judge. I n response t o a question from Senator Noland r e g a r d i n g t h e appeal process, Ms. Hamm i n d i c a t e d t h a t c u r r e n t l y t h e r e i s no appeal o f t h e d e c i s i o n o f t h e Parole Board t o deny a commutation and t h e Board does n o t even have t o g i v e a reason f o r d e n i a l . She maintained t h a t i t would be a p p r o p r i a t e t o provide a reason and added t h a t t h e r e i s no t r a n s f e r a b i l i t y from a d e n i a l a t t h e Parole Board t o t h e j u d i c i a l system since t h e determination by t h e Board i s n o t a j u d i c i a l one. Senator Blanchard o f f e r e d t h e f o l l o w i n g 1anguage on t h e issue o f a standard:
1.

The sentence imposed i s c l e a r l y excessive given t h e nature o f t h e offense, t h e r e c o r d o f t h e o f f e n d e r and sentence served by s i m i l a r l y s i t u a t e d offenders. There i s a. s u b s t a n t i a l p r o b a b i l i t y t h a t when released t h e o f f e n d e r w i l l conform h i s conduct t o t h e requirements o f t h e law.

2.

He contended t h a t w i t h t h a t type o f standard t h e Board c o u l d determine a t h r e s h o l d along t h e 1 ines mentioned by M r . Neely. Representative B a i r d maintained t h a t t h e issue o f s i m i l a r l y s i t u a t e d would have t o i n c l u d e t h e d i f f e r e n c e between a f i v e - y e a r sentence and a ten-year sentence handed o u t a month a p a r t because o f t h e change i n t h e code. M r . Neely responded t h a t i f a t h r e s h o l d i s s e t then i t would n o t make a d i f f e r e n c e t o him whether d i s p a r i t y was created by a change i n t h e law o r by o t h e r circumstances. He expressed some concern t h a t t h e language proposed by Senator Blanchard i s too -general. Senator Noland agreed t h a t t h e r e i s a need t o b e t t e r d e f i n e t h e standard.

M r . Derickson suggested t h a t inmates who are n o t i n c l u d e d i n t h e c a t e g o r i e s t h a t have been i d e n t i f i e d as p o s s i b l e areas f o r automatic review by t h e Board could choose t o apply under t h e standards proposed by Senator Bl anchard, which would encompass a l l t h e i n d i v i d u a l s e l i g i b l e f o r parole.
Ms. Hamm urged c a u t i o n i n s e t t i n g t o o many concrete standards f o r t h e Board of Executive Clemency, e s p e c i a l l y f o r such standards i n one category b u t n o t i n another. Ms. Hamm noted t h a t Senator Blanchard's proposal suggests t h a t the r e c o r d o f t h e inmate i n p r i s o n be considered, which she i n d i c a t e d i s f a i r l y s u b j e c t i v e . She a l s o commented on t h e importance o f being c a r e f u l about d e f i n i n g what i s excessive, adding t h a t t h e Board should decide t h a t on i t s own.

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Senator Noland i n d i c a t e d t h a t s t a f f would prepare an o u t l i n e t o i n c l u d e t h e p o i n t s she recapped and t h e language presented by Senator Blanchard. She i n v i t e d any o f t h e members and t h e pub1 i c t o submit language f o r s e t t i n g and d e f i n i n g t h e standard. She suggested t h a t t h e i s s u e o f earned r e l e a s e c r e d i t s c o u l d p o s s i b l y be recommended t o t h e L e g i s l a t u r e as a s t a t u t o r y change. She added t h a t a r e v i e w o f t h e sentencing c a t e g o r i e s w i l l be discussed a t t h e n e x t meeting. Senator Noland asked M r . Neely i f he p l a n s t o submit some language, and he i n d i c a t e d he would work on t h e i s s u e w i t h Senator Blanchard.

.

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The n e x t meeting w i l l be h e l d on Wednesday, October 13, 1993, a t 9:30 a.m. meeting adjourned a t 11:40 a.m. Re e c t f u l l y submitted,

The

LC
M i c e C. S t e l l Committee S e c r e t a r y (Attachments and tapes a r e on f i l e i n t h e O f f i c e o f t h e S e c r e t a r y o f t h e Senate.)

ARIZONA STATE LEGISLATURE STATE SENTENCING GUIDELINES AND PARITY REVIEW STUDY COMMITTEE Minutes o f Meeting Wednesday, October 13, 1993 Senate Hearing Room 1 - 9:30 a.m. R e p r e s e n t a t i v e B a i r d c a l l e d t h e meeting t o o r d e r a t 9:35 a.m: and attendance was noted. See a t t a c h e d sheet f o r o t h e r attendees. Members Present Joe A1 bo, Jr. Duane Be1cher ( f o r Tom Freestone) Audrey Burke ( f o r Sam Lewis) Raul C a s t r o K u r t Davis D a v i d Derickson Karen D u f f y Senator B l anchard Senator Noland, Cochairman Members Absent Dr. Michael B l o c k Donna Leone Hamm C a t h e r i n e Hughes Joe Maziarz Stephen Neely R u s s e l l Pearce ( f o r Joe A r p a i o ) Judge Ronald R e i n s t e i n R e p r e s e n t a t i v e Hubbard R e p r e s e n t a t i v e B a i r d , Cochairman Staff J o n i Hoffman, Senate Dominica Minore, House

R e p r e s e n t a t i v e B a i r d asked t h a t members p r e s e n t any p r o p o s a l s f o r c o n s i d e r a t i o n t h e y m i g h t have.

M r . Derickson n o t e d t h a t d i s c u s s i o n o c c u r r e d a t t h e l a s t meeting p e r t a i n i n g t o a concept t o determine whether a sentence f o r an o f f e n d e r under t h e o l d code i s d i s p r o p o r t i o n a t e t o a sentence which would be g i v e n t o t h a t i n d i v i d u a l i f t h e c r i m e was committed a f t e r January 1, 1994. He i n d i c a t e d t h a t t h e q u e s t i o n was how t o d e f i n e what a d i s p r o p o r t i o n a t e sentence e n t a i l s . I n a d d i t i o n t o t h e areas discussed p r e v i o u s l y as t h o s e which should be e l i g i b l e f o r review, M r . Derickson proposed t h e f o l l owing 1 anguage f o r d i s c u s s i o n :
A sentence i s e l i g i b l e f o r r e v i e w under t h i s s e c t i o n i f t h e p a r o l e e l i g i b i l i t y , o r the e a r l i e s t release date i f parole i s not available, i s a t l e a s t 18 months g r e a t e r t h a n t h e e a r l i e s t r e l e a s e d a t e f o r a person s i m i l a r l y s i t u a t e d b u t whose o f f e n s e i s committed from and a f t e r December 31, 1993. M r . D e r i c k s o n s a i d h i s view i s t h a t t h e Board o f E x e c u t i v e Clemency should r e v i e w t h e sentence o f any i n d i v i d u a l whose sentence i s d i s t i n c t l y d i f f e r e n t from t h e sentence he would have r e c e i v e d under t h e new code. He noted t h a t a t h r e s h o l d f o r r e v i e w would p r o v i d e guidance t o t h e Board and serve those i n d i v i d u a l s whose sentences r e a l l y a r e much l o n g e r under t h e o l d e r codes. He contended t h a t t h e 18-month c u t o f f i s reasonable due t o t h e average l e n g t h o f sentences.

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Mr. Derickson explained that the language he chose for his proposal with regard to par01 e el igi bil i ty versus earl iest release date under the new code is intended to bring before the Board of Executive Clemency those people whose eligibility for parole under the present code is substantially different than the eligibility for release under the new code. He emphasized that his proposal defines a group that would be considered for review by the Board rather than a group which will be released if the Board determines that individual actually does have a sentence that should come under this section. Mr. Derickson added that his proposal is simply a mechanism for establishing an earlier potential release date for an inmate, and an offender not meeting the test of parole under the present system may not be released at that point. Representative Bai rd indicated that his interpretation o f the proposal is that it represents a mechanical determination of eligibility by looking at the sentence received under the old code and what it would have been under the new code, with an inmate being eligible for consideration if the criteria is met. He said it appears Mr. Derickson's point is that if such consideration makes an inmate eligible for parole, he would not be automatically paroled but would still have to be considered for parole at that point. Representative Baird indicated that the proposal appears to reflect that if a review makes an inmate el igible for release because his sentence has been served, he would be automatically re1 eased. Mr. Derickson maintained that is not the intent of his proposal. He explained the intent is for the Board of Executive Clemency to first make a determination as to whether the inmate is eligible for an earlier date o f release. If that date happens to coincide with parole or it appears the person is eligible for parole under the review, then the Board would make a separate decision as to whether the individual should be released. Ms. Burke asked for clarification for those inmates under the old code and the pre-1978 code who, although there may be disparity in their sentences, are not only eligible for parole but have had their cases heard by the Parole Board and denied. Mr. Derickson rep1 ied that an inmate who has had a parole hearing should not automatically be reviewed under the type of process being considered, adding that he would accept an amendment to his proposal to exclude those individuals. Mr. Belcher asked what entity would determine the eligibility of inmates, to which Mr. Derickson responded that the Board of Executive Clemency should have that charge. Senator Noland clarified for Mr. Belcher that a review on the disparity o f sentences would be a one- t ime type of review to be accompl i shed through the Board.of Executive Clemency, with legislation also providing the necessary employees. Senator Bl anchard provided an overview of the proposal he and Mr. Neely developed based on the concept of disproportional i ty (filed with original minutes). He indicated that the issue to be discussed involves the thresholds for el igi bil ity and contended that the 18 months contained in Mr. Derickson's proposal is too low, adding that it would be very difficult for an inmate with only 18 months' disparity to make an argument of excessive di sproportional i ty. Senator B1 anchard

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o f f e r e d t h e f o l l o w i n g a l t e r n a t i v e t h r e s h o l d s t o determine e l i g i b i l i t y t o apply f o r d i s p r o p o r t i o n a l it y :

*
x
i f

x

V i o l e n t mu1 t i p l e o f f e n d e r s e r v i n g a sentence o f 20 y e a r s . V i o l e n t n o n r e p e t i t i v e o f f e n d e r s e r v i n g a sentence o f 15 y e a r s . N o n v i o l e n t m u l t i p l e o f f e n d e r s e r v i n g a sentence o f 15 years. N o n v i o l e n t n o n r e p e t i t i v e o f f e n d e r s e r v i n g a sentence pf 10 y e a r s .

Senator Blanchard acknowledged t h a t these t h r e s h o l d s would l i m i t t h e number o f people who c o u l d a p p l y b u t he contended t h a t these i n d i v i d u a l s a r e t h e ones who c o u l d r e a l i s t i c a l l y g a i n r e l e a s e under a " c l e a r l y excessive" standard. Ms. Burke commented on t h e 1 i s t o f pre-1978 code inmates p r o v i d e d by Dr. F i s c h e r from t h e Department o f C o r r e c t i o n s (DOC) a t an e a r l i e r meeting, which i n d i c a t e s t h e maximum sentence b u t does n o t r e f l e c t t h e minimum. She s a i d , f o r example, t h a t f o r an inmate c o n v i c t e d o f second degree murder t h e minimum m i g h t have been 45 y e a r s w i t h l i f e as t h e maximum. She i n d i c a t e d t h a t a number o f those inmates have been heard by t h e P a r o l e Board many times and denied. She questioned i f Senator Blanchard's proposal would a l l o w t h e maximum sentence t o be commuted so t h a t i f t h e Board d i d n o t g r a n t p a r o l e those inmates would e v e n t u a l l y be r e l e a s e d any way. Senator Blanchard responded t h a t i f inmates a r e e l i g i b l e f o r some t y p e o f r e l e a s e and have been denied, t h e y should n o t be e l i g i b l e f o r r e v i e w under t h e t y p e o f standard b e i n g discussed. Ms. Burke asked i f t h a t should be w r i t t e n i n t o t h e proposal, t o which Senator Blanchard agreed. Senator Blanchard m a i n t a i n e d t h a t t h e p o p u l a t i o n i n t h e p r i s o n system which f a l l s below t h e new d r u g t h r e s h o l d s should be t r e a t e d d i f f e r e n t l y as a pub1 i c p o l i c y , o u t s i d e o f a d i s p r o p o r t i o n a l it y o r p a r i t y r e v i e w .

M r . Neely i n d i c a t e d t h a t t h e r e i s a d i s t i n c t i o n between h i s view o f t h e i s s u e and t h a t o f M r . Derickson's proposal. He emphasized t h a t he does n o t be1 i e v e t h e r e should be any r e l a t i o n s h i p between changes i n t h e code and an e v a l u a t i o n o f whether a sentence i s d i s p r o p o r t i o n a t e , which he and Senator B l anchard have r e i t e r a t e d i n t h e i r p r o p o s a l . He e x p l a i n e d t h a t t h e standard i n t h e proposal a t t e m p t s t o l o o k a t c u r r e n t and h i s t o r i c a l sentences t o determine what i s l i k e l y t o qua1 i f y as d i s p r o p o r t i o n a t e . He added t h a t t h e t h r e s h o l d i s s e t below t h a t p o i n t b u t a t a h i g h enough l e v e l t o l i m i t t h e number o f a p p l i c a t i o n s t o those s i t u a t i o n s i n which t h e r e i s t r u l y a q u e s t i o n o f d i s p r o p o r t i o n a l i t y .
I n response t o Mr. Derickson's r e q u e s t f o r c l a r i f i c a t i o n o f t h e t h r e s h o l d numbers i n t h e proposal, Senator Blanchard e x p l a i n e d t h a t t h e t h r e s h o l d s p e r t a i n t o t h e a c t u a l sentence which i s imposed. R e p r e s e n t a t i v e B a i r d asked i f someone e l i g i b l e f o r p a r o l e would be i n c l u d e d . Senator Blanchard i n d i c a t e d t h a t an inmate sentenced under t h e o l d system has a t l e a s t 13 d i f f e r e n t r e l e a s e mechanisms a v a i l a b l e , adding t h a t i t would be cumbersome f o r a t h r e s h o l d t o i n c l u d e a d e t e r m i n a t i o n o f t h e e a r l i e s t r e 1ease mechani sm.

M r . Derickson d i s a g r e e d w i t h t h e concept o f s i m p l y c o n s i d e r i n g t h e sentence.

He observed t h a t t h e charge o f t h e Committee i s t o s e t up standards under which t h e Board of E x e c u t i v e Clemency c o u l d r e v i e w those sentences t h a t a r e s u b s t a n t i a l l y

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l o n g e r t h a n t h e y would o t h e r w i s e be under t h e new code. He added t h a t t h e L e g i s l a t u r e made t h e d e t e r m i n a t i o n t h a t t h e sentences imposed under t h e 1978 and t h e pre-1978 codes a r e t o o l o n g and t h a t t h e c o s t t o s o c i e t y and t h e S t a t e needs t o be taken i n t o account. He emphasized t h a t some inmates p r o b a b l y should remain i n p r i s o n b u t t h e r e a r e o t h e r s who,should be considered f o r r e v i e w and e a r l i e r r e 1ease. Senator No1 and questioned i f t h e B l anchard-Neely proposal takes h i s t o r i c a l v i o l e n t o f f e n s e s i n t o c o n s i d e r a t i o n , t o which M r . Neely e x p l a i n e d t h a t t h e proposal p e r t a i n s t o t h e o f f e n s e f o r which t h e inmate i s c u r r e n t l y s e r v i n g time r e g a r d l e s s o f t h e n a t u r e o f t h e crime. M r . Neely m a i n t a i n e d t h a t t h e charge o f t h e Committee i s n o t t o s p e c i f i c a l l y c r e a t e standards f o r p a r i t y r e v i e w b u t t o determine whether such a measure i s a p p r o p r i a t e . He added t h a t he thought t h e general consensus o f t h e Committee i s t h a t p a r i t y r e v i e w i s n o t a p p r o p r i a t e based on t h e comments made by members when asked t o v o i c e t h e i r o p i n i o n s one-by-one i n a p r e v i o u s meeting. He r e i t e r a t e d t h a t t h e Blanchard-Neely proposal s t r i c t l y addresses t h e i s s u e o f d i s p r o p o r t i o n a l i t y r a t h e r than t h e i s s u e o f p a r i t y review. Senator Noland contended t h a t m u l t i p l e o f f e n s e s should f o l l o w t h e m a t r i x s e t up i n t h e new c r i m i n a l code and c o n s i d e r whether h i s t o r i c a l p r i o r s were v i o l e n t o r n o n v i o l e n t r a t h e r t h a n be c a t e g o r i z e d according t o t h e l a t e s t sentence. M r . Neely m a i n t a i n e d t h a t t h e Board i s capable o f d e t e r m i n i n g whether a p r i o r o f f e n s e was v i o l e n t o r n o n v i o l e n t and b u i l d i n g t h a t i n t o i t s equation. However, he suggested t h a t f o r t h e purposes o f a simple t h r e s h o l d t h e i s s u e should be based on t h e o f f e n s e f o r which t h e t i m e i s b e i n g served a t t h e moment, i f f o r no o t h e r reason than t o a v o i d a p o t e n t i a l a d m i n i s t r a t i v e nightmare. Ms. Hamm r e a d t h e mandate o f t h e Committee from S.B. 1049 which r e q u i r e s t h e Committee t o recommend s p e c i f i c c a t e g o r i e s o f crimes o r o f f e n d e r s who should be reviewed i n o r d e r t o achieve p a r i t y f o r o f f e n d e r s sentenced under a d i f f e r e n t code. She i n d i c a t e d t h a t she r e c a l l s t h e p o l l mentioned by M r . Neely showed t h a t most o f t h e members were i n f a v o r o f some t y p e o f p a r i t y review. R e p r e s e n t a t i v e B a i r d contended t h a t t h e proposal submitted by Senator Blanchard and M r . Neely i s n o t c o n t r a r y t o t h e i n t e n t o f t h e mandate r e c e i v e d by t h e Committee. Ms. Burke suggested t h a t w i t h t h e proposal i t would s t i l l be necessary t o c o n s i d e r t h e form o f r e l e a s e e l i g i b i l i t y a v a i l a b l e under a p a r t i c u l a r code, n o t i n g t h a t an o l d code sentence may have been l o n g e r because o f t h e r e l e a s e mechanisms a v a i l a b l e t o t h e o f f e n d e r . Senator Blanchard s a i d he i s sure t h a t by t h e t i m e a case reaches t h e Board an a n a l y s i s o f what a sentence a c t u a l l y means i s e s s e n t i a l i n d e t e r m i n i n g d i s p r o p o r t i o n a l ity. However, he maintained t h a t t h e p r e s e n t d i s c u s s i o n d e a l s w i t h a d i f f e r e n t step, t h a t o f a t t e m p t i n g t o f i n d a t h r e s h o l d which w i l l ensure t h a t everyone who i s 1 i k e l y t o o b t a i n a r e l e a s e under t h i s standard w i l l be presented t o t h e Board w h i l e r e s t r i c t i n g cases t h a t p r o b a b l y have no r e a l i s t i c chance o f meeting t h e standard. R e p r e s e n t a t i v e B a i r d s t a t e d t h a t he has never agreed w i t h M r . Neely t h a t t h e r e should be no c o n s i d e r a t i o n g i v e n t o d i f f e r e n c e s i n t h e codes. He added t h a t

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d i s p r o p o r t i o n a l it y i s such a vague standard t h a t r e q u i r e s c o n s i d e r a t i o n o f a v a r i e t y o f i s s u e s and f o r p r a c t i c a l purposes t h e Board w i l l be l o o k i n g a t t h a t as p a r t o f t h e o v e r a l l q u e s t i o n o f d i s p r o p o r t i o n a l i t y . Judge R e i n s t e i n asked i f a person w i t h a c o n s e c u t i v e sentence t o t a l i n g above t h e t h r e s h o l d would be e l i g i b l e under t h e proposal, t o which Senator Blanchard suggested t h a t t h e c o n s e c u t i v e sentence i s t h e area i n which a d i s p r o p o r t i o n a l i t y r e v i e w i s p r o b a b l y most m e r i t e d . Judge R e i n s t e i n observed t h a t t h e i n t e n t o f t h e L e g i s l a t u r e i n deal i n g w i t h people who have p r i o r dangerous o f f e n s e s i s e v i d e n t , adding t h a t such i n d i v i d u a l s p r o b a b l y r e c e i v e d c o n s e c u t i v e sentences because o f p r i o r v i o l e n t offenses. Judge R e i n s t e i n commented on areas which he f e e l s c o n s t i t u t e d i s p r o p o r t i o n a l i t y , such as s i t u a t i o n s i n which o l d code o f f e n d e r s were sentenced t o a f l a t p r i s o n term w h i l e p r o v i s i o n s under t h e new code p r o v i d e t h e p o s s i b i l i t y o f p r o b a t i o n . He s a i d a n o t h e r area o f concern d e a l s w i t h those o f f e n d e r s i n p r i s o n f o r burg1 a r y which under t h e new code would be designated as misdemeanors. I n addition, Judge R e i n s t e i n contended t h a t c o n s i d e r a t i o n should be g i v e n t o cases i n v o l v i n g d r u g o f f e n s e s committed w h i l e on p r o b a t i o n which have generated a l i f e sentence t h a t would n o t occur under t h e p r e s e n t code. Judge R e i n s t e i n q u e s t i o n e d i f t h e s e i s s u e s a r e separate from t h e d i s c u s s i o n t h e Committee has had p e r t a i n i n g t o a l l o w i n g commutation f o r c e r t a i n people who were sentenced p r i o r t o January 1, 1994, and who a r e n o t e l i g i b l e f o r commutation i n o r d e r t o match what w i l l be a v a i l a b l e t o people who commit crimes a f t e r t h a t date. He i n d i c a t e d t h e r e have been d i s c u s s i o n s about s t r i k i n g t h e word "commutation" from c e r t a i n s t a t u t e s where commutation i s c u r r e n t l y n o t a1 1owed. Senator Blanchard s a i d he has n o t g i v e n much t h o u g h t t o t h a t i s s u e . He added t h a t t h e r e was d i s c u s s i o n about whether such a c t i o n would be a s i m p l e r s o l u t i o n , b u t he p o i n t e d o u t t h a t t h e standard f o r commutation i s l e s s e r . Judge R e i n s t e i n m a i n t a i n e d t h a t t h e r e a r e many inmates who do n o t f a l l under t h e proposal by Senator Blanchard and M r . Neely b u t who should be i n c l u