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Frequently Asked Questions

Q:  Is it legal for the Department of Corrections to prohibit anyone from sending a Securepak to a prisoner unless the person is already an approved visitor to that prisoner?  Yes, it is legal for the DOC to implement such a policy, including against the defense bar, due to security concerns.  Although such a policy will not resolve the problem of extortion of prisoner's families (by ordering them to send Securepaks to a prisoner's DOC # or to several prisoner's names as payment for drugs, protection, gambling debts or just pure extortion), it will at least prevent families of inmates to be involved directly.  However, an inmate who is extorting money from another inmate for any reason can still order the inmate to have his family send money to a street bank account or to a post office box, and the person in receipt of the monies (who is an approved visitor to the person conducting the extortion) can then forward the money to the extortionists' account.  In any case, no Court is going to order the DOC to allow the packages (and, eventually, money orders) to be sent to an inmate account if the sender is not an approved visitor.

Q:  With all the budget cuts going on in the state, doesn't it make sense to let prisoners go home early (from prison)?  Yes, if you are thinking logically, that does make sense, especially if you qualify the question by asking why at least non-dangerous/non-violent offenders can't go home early in order to ease up some prison space and save some money.  However, logic isn't the cornerstone of criminal justice policy.  Instead, politics (the ugliest type), emotion, turf-protection, power management and many other factors play an enormous role in the development and implementation of criminal justice policy and law.  Prison officials aren't even ashamed to say, "It won't pass the headline test," when they refer to programs or policies that they know would be helpful to rehabilitation because they know that the only reason they won't implement certain programs or policies is due to (uninformed) public opinion.  That "theory" of criminal justice policy is alive and well at all levels of the decision-making process.   Therefore, we think the following is true:  Out of 90 total legislators in the Arizona Legislature, only about 10-12 are interested at all in sentencing reform of any type, and probably only about 6 or 7 of that number would vote in favor of early release of already sentenced prisoners.  About the same number of legislators would support reducing the minimum amount of time required to be served by a sentenced prisoner from 85% to 65%.  IIt is unlikely, however, that the Governor would support any sort of reduction in prison sentences at all.  Hence, from a practical, political and realistic standpoint, sentencing reform and/or early releases for prisoners is not a likely prospect in Arizona, despite the budget situation.  Legislators will continue to cut social service and other programs, consider raising taxes, rob money from previously protected funds, charge new fees for previously lower-cost or free services, freeze hiiring, reduce wages, require more unpaid leave "furlough" days for state employees, but they will not touch sacrosanct prison sentences in any major or significant way.  (UPDATED July 2012)

Q:  My fiance entered the prison system in her second month of pregnancy.  She is now five-months along.  Her cellmate is a smoker, and smokes all the time inside the cell which causes great distress for my fiance.  Can prisoners do that to each other?  What about second-hand smoke effects on prisoners who don't smoke?  Arizona has a law referred to as "Smoke-free Arizona Act."  It can be found at A.R.S. 36-601.01.    Smoking is PROHIBITED in all public places and places of employment within the state of Arizona, and there is no specific exception for prisons, which are not technically "public places," but which are, in fact, places of employment within the state of Arizona.  Your fiance's pregnancy should provide ample justification for movement to a cell with a non-smoker, and she should be able to assert her health-related concerns for herself and her unborn fetus with respect to second-hand smoke that she is exposed to in any manner.  She should quiently submit paperwork to ask for another cellmate.  She does not want to put herself in a position of becoming a "snitch" on anyone, which could expose her to other dangers or threats, but at the same time prison officials should readily accommodate her request to be away from a living environment that so directly contains second-hand smoke.  It is Middle Ground's understanding that prison officials often "wink" at this law, especially for prisoners in maximum custody/lockdown facilities because there is so little opportunity for such prisoners to go outdoors to smoke.  However, for a non-smoker or someone wishing to avoid second-hand smoke, this does nothing to address that person's concerns.  Grievances would have to be filed requesting movement away from smokers, and perhaps suggesting resolution via "non smoking" runs or wings for prisoners in dorms or celled units. 

We at Middle Ground are non-smokers, so we clearly understand the concerns about second-hand smoke in a closed environment such as a prison.

Q:  Inmate store (commissary) prices seem to be going up all the time.  How much profit is the Department of Corrections allowed to make when they provide store items to inmates?  Under Arizona law (See A.R.S. 41-1604.02), the department is permitted to establish and maintain inmate stores at any of its institutions or facilities.  The department is permitted to enter into contracts with a private entity or contractor to establish and maintain the inmate stores.  Prices are to be fixed by the contractor with direction from the (DOC) director THAT ARE NO HIGHER THAN PRICES OF SIMILAR RETAIL PRODUCTS, TOILET ARTICLES, CANDY, TOBACCO PRODUCTIONS, NOTIONS AND OTHER SUNDRIES to the persons confined.  According to an audit conducted by the Arizona Office of the Auditor General, the DOC makes a profit (overall) of about 16% on items sold to inmates in the inmate stores.  

Under the same law cited above, the profits of inmate stores are to be deposited in an inmate store proceeds fund.  Monies from that fund may be used "at the Director's discretion" for inmate activities, incentive pay increases for prison guards, equipment to enhance safety for both department personnel and inmates, or "other official needs as required."

If you believe that store prices on particular items are excessively higher than the regular retail (not sale prices) on the same item in the free-world, please report your findings to Middle Ground.  We will ask you to provide a store list naming the item or items in question, plus your receipt for the PURCHASE of the same items in a regular retail store.  The receipt will have to be itemized and specifically list the items you purchased for comparison purposes with inmate store items.

City taxes are permitted to be imposed on goods sold in inmate stores, and the amount of the tax varies from city to city (in which the prison facility is located).

Q:  Can you tell me about the "50%" law for prisoners subject to deportation?  Yes,  A.R.S. 41-1604.14 provides that prisoners with detainers for deportation who are serving sentences for class 3,4,5 or 6 felonies and who have served at least 50% of their imposed Arizona prison sentence may be released to the custody of ICE to begin the process of deportation proceedings.  Sex offenders, those convicted of homicide and other serious offenses are not eligible.  If the person is deported  and released into freedom in his own country, and later returns to the US, the language of the statute states that the Director can "revoke" his release, and he would have to serve the remainder of it in a prison facility without possibility for any other type of early release.   This "50%" law is for persons with INS detainers only.  It should be noted that we believe this statute is discriminatory because it allows reduced sentences for illegals only, and we are exploring the possibility of assisting in a lawsuit to address this lack of equal protection.   To date, however, we have not made any decision about a legal challenge nor are we aware of any prisoners who have challenged this statute.

Q:  I am on lifetime probation supervision for a sex crime (dangerous crimes against children).  Will I have to be on GPS monitoring during the entire time I am on probation?  What if I can't afford the monthly assessment/fee?  According to the authorizing statute -- A.R.S. 13-902 G,  a person who is eligible to be on lifetime probation w/ GPS monitoring shall be on GPS monitoring "for the duration of the term of probation."  So, the answer is "yes," you will be on GPS monitoring for the duration of your probation supervision UNLESS you are granted an early termination from probation supervision by the court.  As for the assessment/fee, you must pay it in full each month if you can afford it.  If you can't afford it, and the probation department is able to make that determination by reviewing your eligible wages or finances, then you may not have to pay the full fee or any fee at all.  However, the "assessment" will continue so that if your financial circumstances ever change, you will owe the money to the county.   The probation department will only petition the court to revoke you for non-payment if there is "willful non-compliance."  In other words, if you earn enough money or have enough money to pay the monthly fees, but refuse to do so, the probation office will petition the court to revoke your probation and send you to prison.  If you are revoked and sent to prison, you will serve your time in prison (flat time) and be released without any probation term at all.  However, we do notrecommend this as a method for avoiding probation supervision or payment of monthly fees.  GPS tracking has only been going on for about two years, and no one has ever applied to the court to have the GPS monitoring portion, but not the lifetime probation supervision, lifted.  The probation department would be required to follow any court order it received to lift the requirement for GPS monitoring, but we don't know of any cases thus far in which this request has been made or granted.

Q:  I don't get it -- my son was recommended for a commutation of sentence to the governor by the board of executive clemency a few years ago.  The governor denied the recommendation, and my son re-applied again this year.  This time, the board didn't even pass his case along to Phase II for a personal hearing!  How can he be recommended for commutation one year and  not even be given the courtesy of a personal hearing two years later, especially when his prison record remains perfect?  There are many reasons.  First,  you need to understand that each application for clemency begins at "square one."  There is no carry-over "merit" to a case just because it was once recommended in the past.  New board members may consider your son's case each time he applies because board members rotate on and off the board in staggered five-year terms.  Even if the very same board members consider his case more than once, they are not legally required to vote the same way they did in the past.  That is the nature of "clemency" -- which is an act of grace or compassion by the executive of the government.  We can only speculate, but it might be that the board members felt they were doing your son (and you) a favor by not building up your hopes again, only to have them dashed as they were the previous time.  After all, if the same GOVERNOR denied the recommendation previously, why would he/she grant it a few years later?  Especially when a few years later your son is even closer to his statutorily mandated release from prison, which won't require executive action.    Whether anyone admits it or not, the clemency process is rife with politics and backroom considerations.  Unfortunately, there is simply no guarantee that just because your son's case was recommended for commutation at one point in time, it will be recommended in subsequent applications, or even that his case will receive the same favorable review by the Board from Phase I to Phase II of the clemency process.  "Logic" is not at play in many aspects of the executive clemency process.

Q:  The Department of Corrections has decided to triple-bunk female inmates at the Perryville Prison as a way of dealing with the present overcrowding situation.  Can they legally do so?  The cells are made for two persons.  In a word, yes.  The courts allow prison administrators to do certain things during emergency or crisis situations that, ordinarily, might be considered to be unconstitutional.  If the measure is "temporary," they can generally implement a policy that otherwise would not pass constitutional muster.  So, even though the Department is welding the new beds to the wall of the cell, the policy itself can be temporary as long as the impact on a particular inmate is temporary.  How is this accomlished?  By continuously moving inmates around from cell to cell, and only keeping some inmates in 3-person cells for limited amounts of time.  The PLRA (Prison Litigation Reform Act) requires that in order for a prisoner to have a claim of action, he/she must have suffered actual harm.  Not perceived harm or anticipated harm, but actual harm.  And the harm must be able to be proven to be directly attributible to the condition of confinement (triple bunking) challenged.  This will be extremely difficult for an inmate to prove.  The courts allow prison life to be inconvenient, uncomfortable, annoying, confining,  -- and even crowded, for a time -- as long as the prison (state) is working on a solution.  The legislature HAS funded additional state operated and purchase of private prison beds.  We are sorry to report that triple-bunking is not unconstitutional per se in this case.  We know that we will hear from various inmates about specific or individualized problems associated with this new policy, but -- again -- there is little likelihood that any successful challenges can be made.  If inmates were being required to sleep on a mattress on the floor with their head near the toilet, and this practice went on for the same inmate for an extended amount of time, this would be cause for a court challenge.  In this case, however, inmates will sleep or stay in their triple-bunked cell for relatively brief amounts of the day and be allowed to be out of the crowded cell for many other parts of the day.  This will diminish any claims that any particular inmate may have about the effects of overcrowding.

Q:  My friend is in prison and he told me about a rumor circulating that the legislature passed a law this year (2012) which allows any prisoner who is at least a Level 3 (medium custody) inmate who has already served 50% of his sentence to be released to "Home Arrest" if he/she can pay a $55/month fee to monitor the electronic bracelet.  Is this true?  This is laughable.  First, is your incarcerated friend aware that even under the conservative classification system within the ADOC, even serious sex offenders and those convicted of first-degree murder are eligible -- with good behavior -- to attain a Level 3 (medium custody) classification assignment?  Does he really think that our legislators would pass a law which would allow them an early release?  Next, does he honestly believe that only those persons with enough money to pay the $55/month monitoring fee should be allowed to participate in such a program?  In other words, only people with money can be considered for early release?  Honestly, we can assure you that this RUMOR is exactly that -- a rumor.  And a silly one at that.

Q:  Can the Dept. of Corrections deduct money from an inmate's spendable account that has been sent to him from his family or friends on the outside to pay for court ordered restitution?  In other words, can they deduct money for restitution owed from anything but a prisoner's earned wages?  Previously; no.  Now, a statute allows them to do so.  Under   A.R.S. 31-230, it now permits the DOC to deduct a minimum of 20%, up to 50%; of all monies in a prisoner's spendable account in order to pay court-ordered restitution.  Once you send money to a prisoner's account, it becomes his/her "property," and is subect to court-ordered and other deductions.  It isn't your money anymore once you deposit it to a prisoner's account.

Q:  Can a prisoner be charged with a felony if he or she has sexual contact with a prison staff member or a correctional custodial (parole or probation officer) person?  Formerly; yes.  Now, no.  In September 2007, with Middle Ground's lobbying efforts, A.R.S. 13-1419 was changed and it is no longer a felony for a prisoner to have sexual contact with a custodial (jail, prison or probation) staff member.  Instead, because legislators finally came to the realization that there is never CONSENT between the two parties when the power differential is so great, it is now a felony for the staff member to engage in such behavior, but not a felony for the victim (prisoner or probationer).  This is as it should be.  Prison guards, detention officers, non-uniformed staff and probation officers are expected (required by law) to be professional.  We do not believe this is too much to ask.

Q:  A staff member at the Arizona Dept. of Corrections recently told me that only legal mail (from an attorney) can be sent to a prisoner via certified mail/return receipt requested.  Is that true?  No.  A non-attorney (you) may send certified mail, registered mail or even Fed Ex packages or Western Union telegrams to a prisoner.  However, the item or package is deemed "received" when it is signed for or turned over to prison staff, and not when it is delivered or given to the prisoner.  So, don't expect special treatment of a piece of mail or a package that is sent to a prisoner in this manner.  Instead, if you use this method, use it only as a way to CONFIRM that the package or letter was actually received by someone (whose name is usually illegible -- on purpose) in the mail room of the prison.  An "overnight" package that you pay for will only be delieverd to the prison over night, but it still may take a few days to get it in the hands of the intended prisoner.  Unless the mail is sent from an attorney, a court or from a legislator, it will not be treated as legal mail by the DOC, even if it is sent via certified mail, Fed Ex or by any other means.

Q:  The Maricopa County Jail System requires that citizens must communicate with a prisoner on postcards only.  I recently wrote my incarcerated girlfriend a sexually explicit postcard, but the jail refused to deliver it, claiming it interferes with the "secure and orderly operation" of the jail.  Don't I have a First Amendment Right to write to my girlfriend about our personal sex life?  She has a six month sentence!   Yes and no.  It depends on just how explicit your message to your girlfriend was.  Jail officials could claim that the message itself was offensive to whatever mailroom staff were required to read it, or they could claim that if another prisoner read the postcard, it could cause problems inside the jail relating to security, etc.  So, there probably are some circumstances where a court would uphold the jail's decision to ban your message.   However, a general discussion of your desire for sexual relations with your girlfriend would probably not rise to the level of a breach in security or a threat to the orderly operation of the jail as long as you avoided language that some consider offensive.  Unfortunately, since jail officials will be unlikely to back down from their stance, this is an issue that you would very likely have to resolve in a court of law.  It would be expensive and time-consuming, and would become moot once your girlfriend is released in six months.  Perhaps you may want to consider using more of your imagination, and encouraging your girlfriend to do likewise.

Q:  Do the families of prisoners receive any tax deductions from the IRS (Internal Revenue Service) for the expenses they incur when a family member/loved one is in prison, such as for telephone calls, travel expenses, etc.?  No, there is no provision in state or federal tax law for deductions related to the expense of having a family member in prison, jail or on probation.  Payment of court-ordered criminal restitution is not tax deductible.  Expenses for travel to and from a prison or jail; hotel/motel costs for overnight stays in a distant location near a prison; meals; collect telephone calls are not deductible in any legal manner.

Q:  My husband told me he heard some prison staff talking about establishing a conjugal visiting program in Arizona. Are Arizona's prisons going to be setting up conjugal visits for prisoners and their spouses?  In a word: No.  This is a rumor, pure and simple.  There isn't a legislator, governor or prison director in this state brave enough to propose that prisoners' be given time, space, resources or anything else to facilitate having sexual relations at the prison (or anywhere else).  Sorry, this is wishful thinking by prisoners or it might be "playing head games" with prisoners by prison staff.

Q:  My husband recently told me that the prison has announced they will begin charging $1.29 to each prisoner who misses a meal in the "chow" hall or who refuses to accept a meal taken to his cell.  Can they do that?  No, the state prison has no statutory authority at this time to charge prisoners for meals.    We obtained a copy of the memo that was posted on inmate bulletin oards which gave this information, but we also contacted the Legal Counsel for the ADOC to ask on what statutory authority the DOC was relying to justify charging any prisoners for food -- missed special meals or not.  The response was that while the memo had been "issued", the department was not going to "enforce or implement" it.  We asked when a memo would be distributed which informs prisoners that the policy is not in effect, but have not received a response.  Again, there is presently no statutory authority under Arizona law to charge STATE prisoners -- even for special meals that are missed -- by deducting from their inmate account.

Q:  Prisons are severely overcrowded and the budget in Arizona is stretched to the max.  Doesn't that mean there is a good chance that the legislature will reduce prison sentences and let a lot of prisoners out of prison early?  No, it does not.  It means that legislators are going to seek ways to balance the state budget, but they will not do it by drastically altering the criminal sentencing code, including for non-violent / non-dangerous offenders -- especially for those already convicted and serving time in prison.  Every year a rumor circulates that the criminal code will be reduced from 85% to 65%, but no bill has EVER been introduced which proposes to do this.   In order to save money on prison costs, the Department will cut prisoner wage scales, reduce the number of hours that prisoners work, cut other services and do everything they can to cut costs without affecting staff salaries or administrative salaries, etc.  In other words, no serious proposals are on the table for reducing prison sentences or dramatically altering the present criminal code.

Q:  Now that the U.S. Sentencing Commission has passed the "crack" amendment and made it retroactive, will it automatically pply to all FEDERAL crack cocaine offenders sentenced before 11/1/07?  No.  Only the sentencing court will decide whether the amendment applies to a prisoner and whether the prisoner will get a sentence reduction.  To apply for or obtain a sentence reduction, the FEDERAL prisoner must make a motion under 18 U.S.C. 3582 (c) (2) to the court that sentenced that offender.  It is unknown at this time if the court will appoint attorneys to represent such applicants, but it is likely that they will have to do so.  THIS SENTENCE REDUCTION  POSSIBILITY APPLIES ONLY TO FEDERALLY-SENTENCED PRISONERS WHO WERE CONVICTED OF A CRACK COCAINE OFFENSE.  THE EFFECTIVE DATE OF THE RETROACTIVITY IS MARCH 3, 2008, BECAUSE THE COURTS AND THE PROBATION OFFICERS NEED THIS TIME TO PREPARE TO PROCESS THE CASES.

Q:  How much of a time reduction can be expected now that the crack amendment has been made retroactive?

Sentences could be reduced by an average of 27 months for approximately 19,000+ federal prisoners sentenced before 1/1/07.  Individual sentence reductions will vary, however, and can be shorter or longer than 27 months, depending on the original crack cocaine sentence imposed and how much the court decides to reduce any particular offender's sentence.   Black men have been disproportionately affected by the harsher crack cocaine guidelines, so they will be affected in greater numbers than other racial or ethnic groups. 

Q:  Does the crack amendment change the mandatory minimum  federal sentences for crack crimes?  No.  The mandatory minimum sentence for a federal crime involving at least five (5) grams of crack will remain five years.  The mandatory minimum sentence for a crime involving at least ten (10) grams of crack will remain 10 years.  Only Congress can change these mandatory minimum sentences.

 

Q:  Who will NOT get the benefit of the retroactive crack amendment?  Those sentenced under the federal career offender guideline (4B1.1), or the armed career offender guideline (4B1.4), and those serving only the five-year or ten-year mandatory minimum (i.e. they did not benefit from the safety valve or a downward departure for substantial assistance) CANNON benefit from the amendment.  Also, those with base offense levels of less than 12 or greater than 43 and those whose offense(s) involved more than 4.5 kilograms of crack cocaine will not be eligible to receive a sentence reduction.

Q:  How Can A Federal Prisoner Get Help?   To find out whether a case fits the criteria and obtain assistance with a sentence reduction motion, the prisoner should contact the trial or appellate attorney who represented him/her.  If the attorney is not able to help, the prisoner should write to the FEDERAL PUBLIC DEFENDER'S OFFICE in the district in which the prisoner was convicted and explain that the prisoner is unrepresented and wishes to seek a sentence reduction motion.  No formal ruling as been made about whether prisoners are entitled to appointed counsel for these motions, but we believe that such a ruling is forthcoming.  All of the Federal Public Defender's offices are aware that the guideline has been made retroactive, effective March 3, 2008, and will likely be prepared to help.

Q:  Does the crack amendment do anything to reduce federal sentences for meth offenders?  No, unless the crime involved meth AND crack, and the sentence was calculated for meth AND crack.

Q:  Do state prisoners who were sentenced in states where there is a similar disparity in sentencing between crack cocaine and powder cocaine have the same benefits available as federal prisoners?  No, not unless that state that has jurisdiction over the prisoner passes a law which retroactively permits application for sentence reductions and/or reduces the sentences and akes the reductions retroactive.  In Arizona, this would require legislative action and the governor's signature.

Q: What Are My Rights If Arrested?

Whether you are under 18 or an adult, you NEVER have to answer any questions that the police ask of you.  Generally, you do have to provide your name.  Giving the police a false name is a crime.  But you don't have to give any other information at all.  Just say, "My name is ______ and I want to speak to an attorney and I won't talk to you without my attorney present."  Then, don't allow a police officer to trick you into saying more.  Just because the police officer acts friendly or seems helpful or just curious about what you know about a particular event or person, doesn't mean you have to or should speak to them.  You never give up your RIGHT to remain silent unless YOU decide to do so.  It cannot be over-emphasized; you do not ever give up your right to remain silent unless you decide on your own to do so by speaking.  Learn to remain silent!  But don't just remain silent.  TELL THE OFFICER THAT YOU WANT TO SPEAK WITH AN ATTORNEY AND THAT YOU WON'T ANSWER ANY QUESTIONS WITHOUT AN ATTORNEY BEING PRESENT.  It doesn't matter if you don't have an attorney or even the name of an attorney to call; you are entitled to a public defender for anything but a minor misdrmeanor charge  (yes, public defenders are REAL attorneys) and so you need to learn to say the above comment and then remain silent.

Even a non-citizen of the USA has the right to remain silent.   In fact, a non-citizen arrested for a serious crime has the right to have our government officials contact his/her own embassy or consulate for assistance.

You don't have to answer any questions, except to provide your name.  Even under a situation where you wouldn't technically be required to provide your name, it is usually best to do so.  Even if the police arrest you, take you to jail, and tell you that "things will be easier on you" if you answer questions, you still don't have to do so.   If the police contact you and ask you to voluntarily come to the police station, you may or may not decide to go.  If you don't do it voluntarily, the police may pick you up for questioning and -- technically -- you would not be under arrest.  Even if they pick you up or you go to the police station voluntarily, you still don't have to answer any questions at all, and probably should not until AFTER you have spoken with an attorney.  Some people think that they can talk their way out of trouble; this is regularly a very bad idea.

Once you utter the words, "I want to speak to an attorney," the police are supposed to stop questioning you immediately.   Repeat this request to EACH and EVERY officer you speak to, even if they are not wearing a police uniform.  Even if you don't have a lawyer and know that you can't afford to hire one, you can still tell the police or any government agent that you won't answer any questions without first speaking to an attorney.  For any crime that carries a possible sentence of imprisonment (loss of freedom), you will be entitled to a free attorney if the court determines that you are indigent and can't afford to hire your own private attorney.

Anything at all that you say to a law enforcement officer can be used against you, even if you think you are not under arrest and are just being interviewed by someone who seems friendly and helpful.  The police are actually ALLOWED TO LIE TO YOU.   For example, they are allowed to tell you, "Your friend, Johnny, told us that you shot Sue and we also have your fingerprints on the murder weapon."  None of this may be true, but they are permitted to say this to you in order to entice you to speak to them about what you may know about a crime.  Lying to a government agent is a crime.  Remaining silent, however, is not.

There are three sentences you should know and practice if you think you could be arrested:

1.     I am choosing to remain silent to exercise my Fifth Amendment rights.  (Then STOP; remain silent)

2.     I won't answer any questions unless my attorney is present with me.  (Then STOP talking.)

3.     I do not consent to a search. (With a warrant, they can do it anyway)

If you are present when a police officer arrives at your house with a search warrant, you can ask to see the warrant.  The warrant must specify in writing the places that are to be searched and the people or things that they are searching for.  You can tell the police that you don't consent to the search and this should limit them to search only in places where the things they are looking for could reasonably be found.  For example, if the search warrant specifies that they are looking for stolen tires, they cannot look in your medicine cabinet because no reasonable person would believe that tires could be hidden in a medicine cabinet.  If possible, you should ask to witness the search.  Usually, you will not be allowed to do so.  If you are permitted, take notes and get the names, badge numbers and the police agency that the searching officers come from.  If the police ask you for certain documents, your computer or anything that isn't on the warrant in writing, don't give them permission to take the items without FIRST talking to a lawyer.  While the search is proceeding, you don't have to answer any questions.  You don't have to say anything at all.

If the police or other government agents stop you on the street, ask if you are free to leave.  If you are to free to go at your own decision, then you are being detained.  If they tell you that you are free to go, or tell say to you, "What do you have to hide?", just ask them again if you are free to go.  If you are free to go, just walk away.  If the police tell you you are not free to go, but that you are not under arrest, you are being detained.  If the police believe you may be armed, they can pat you down for weapons.  Tell them clearly and repeatedly, "I don't consent to a search."  They may continue to search you, but you don't have to answer any questions.  If asked, you are required to provide your name.  If you don't have any ID on you, you must still provide your name.  If you do have ID on your person, you should show your ID.

If you are stopped while driving a vehicle, it is a very good idea to keep your hands in a place where they can be seen at all times.  Keep them on your steering wheel, near the top of the wheel.  You are required to show your driver's license, your auto registration papers and proof that you are insured.  You should carry this paperwork with you in your vehicle at all times.  You do NOT have to consent to a search of your vehicle.  The police can separate you from your passengers and attempt to ask questions of each one of you, but no one has to answer questions.  They may proceed to search the car, but you should clearly state that you do not consent to a search.  If the police see something in your car, or smell the residue of a drug or illegal substance, this may provide them with the probable cause they need to conduct a legal search, even if you don't consent.  If they bring out a K9 dog who "alerts" on your vehicle, that will allegedly give the police probable cause to search your vehicle.  If anything illegal is found, your lawyer would later have to challenge the training and competence of that particular dog.

Airport security has been considerably beefed up (but not necessarily improved) since 9/11.  If you are entering the USA with valid paperwork (passport, visa, etc.) the U.S. Customs Dept. can still search you and your baggage items.  Even if you pass though the initial screening and nothing suspicious shows, they can still conduct further searches.   Few people know that the pilot of an airplane can refuse to fly any passenger if he/she believes that the passenger presents any type of threat to the flight or crew.  The pilot's decision, however, must be based on reason and on observations of you, and not on stereotypes for race, national origin, religious, sex or ethnicity.

Q:  In Arizona, who is required to register as a sex offender?

ARS 13-3821 governs who must register as a sex offender, and the procedures for doing so.  Generally speaking, a person who has been convicted (not charged) of an offense committed in another jurisdiction (state) that, if committed in this state would be a violation or attempted violation of any of the following offenses or an offense that was in effect before September 1,1978,and that, if committed on or after September1,1978,has the same elements (required proof) of an offense as listed below or who is required to register by the convicting jurisdiction, within ten (10) days after the conviction OR within ten (10)days after entering and remaining in any county of this state, shall register with the sheriff of that county.

1.     Unlawful imprisonment, under ARS 13-1303, if the victim is under 18 years of age and the unlawful imprisonment was not committed by the child's parent.  (Will be required to register for 10 years).

2.     Kidnapping pursuant to ARE 13-1304 if the victim is under 18 and the kidnapping was not committed by the child's parent.  (Will be required to register for 10 years).

3.     Sexual abuse, under 13-1404, if the victim is under age 18.

4.    Sexual conduct with a minor under 13-1405.

5.    Sexual assault pursuant to section 13-1406.

6.     Sexual assault of a spouse if the offense was committed before the effective date of this amendment to this section.

7.     Molestation of a child pursuant to section 13-1410.

8.     Continuous sexual abuse of a child pursuant to 13-1417.

9.    Taking a child for the purpose of prostitution, per 13-3206.

10.     Child prostitution per 13-3212.

11.     Commercial sexual exploitation of a minor, per 13-3552.

12.     Sexual exploitation of a minor, per 13-3553.

13.     Luring a minor for sexual exploitation, per 13-3554.

14.     Sex trafficking of a minor, per 13-1307.

15.     A second or subsequent violation (conviction) for indecent exposure to a person under the age of fifteen years, per 13-1402, subsection B.

16.     A second or subsequent violation (conviction) for public sexual indecency to a minor under the age of 15, per section 13-1403, subsection B.

17.     A third or subsection violation (conviction) of indecent exposure under section 13-1402.

18.     A third or subsequent violation (conviction) of public sexual indecency, per 13-1403.

19. A violation (conviction) of section 13-3822or 13-3824.

Registered sex offenders may only obtain a driver's license or a non operating identification license which is valid for one year.  Each year, a new (updated) photograph of the person will be made and the person must confirm his proof of address/residence.

Q:  Besides the above, can anyone else who has been convicted of a crime be required to register as a sex offender?

Yes.,  At the time of sentencing a defendant for any violation of Chapter 14 or 35.1 of Title 13 or for an offense for which there was an actual finding of sexual motivation, per 13-118, a judge may require the person who committed the offense to register as a sex offender.

Q:  My son was a juvenile when he was adjudicated for a sexual offense, and he spent time in a juvenile facility.  Several years later, after he became an adult, he committed a felony, but not another sexual offense.  Now, he is nearing release from adult prison and they  told him he has to register as a sex offender?  I thought that juvenile records were sealed and that a juvenile offense can't be used against him?

If a juvenile has been adjudicated delinquent for an act that would constitute an offense as specified above, he can be required to register as a sex offender, but his duty to register would not be "lifetime" registration.  Instead, his duty to register would expire upon reaching the age of 25.  See ARS 13-3821 (D).

Juveniles who have committed sexual offenses in other states may be required to register as sex offenders in Arizona under various circumstances.  See ARS 13-3821 (E) (1, 2)

Q:  If I could get DNA testing in my case, I'd be cleared of my crime.  How do I go about getting the government to test the DNA sample that was taken for my case?

ARS 13-4240 provides for post-conviction deoxyribonucleic acid testing (DNA).

At any time, a person who was convicted of an sentenced for a felony and who meets the requirements . . . may request forensic DNA testing of any evidence that is in possession or control of the court or the state that is related to the investigation or prosecution that resulted in the judgment of conviction, and that may contain biological evidence.

To get started, a person must file a Petition Requesting DNA Testing with the sentencing court.

The "requirements" referred to are:

*  A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

*  The evidence is still in existence and is in a condition that allows DNA testing to be conducted.

*   The evidence was not previously subjected to DNA testing or was not subjected to the testing that is now requested and that may resolve an issue not previously resolved by the previous testing.

After notice to the prosecutor and an opportunity to respond, the court may order DNA testing if the court finds that ALL of the following apply:

1.  A reasonable probability exists that either:  (A)  The Petitioner's verdict or sentence would have been more favorable if the results of the DNA testing had been available at the trial leading to the judgment of conviction; (b) DNA testing will produce exculpatory evidence.

2.   The evidence is still in existence and is in a condition that allows DNA testing to be conducted.

3.    The evidence was not previously subjected to DNA tested or was not subjected to the testing that is now requested and that may resolve an issue not previously resolved by the previous testing.

The Court has various options if it orders the DNA testing, including requiring the Petitioner to pay for the cost of testing.  The Court may appoint counsel for an indigent petitioner at any time during any proceedings.  If the court orders DNA tests, it selects a laboratory that meets the standards of the DNA advisory board to conduct the testing.

If DNA testing has previously been performed, the court may order the prosecutor or defense counsel to provide all the parties and the court with access to the laboratory reports that were prepared in connection with the testing, including underlaying data and laboratory notes. 

If the results of the DNA testing are not favorable to the Petitioner, the Court will dismiss the Petition.  It also can notify the Board of Executive Clemency or the Probation Department.  It can request that the Petitioner's DNA sample be added to the federal combined DNA Index System Offender Database.  In addition, the court can notify the victim of the crime or the family of the victim. 

If the results of the DNA testing are favorable, the court shall order a hearing and make any further orders that are required.

Q:  My son, who is in state prison, has Hepatitis C.  What can we expect in terms of treatment while he is in prison?  Due to a population-history of substance abusers, prisons are full of persons with Hep C.  Close to 80% of those infected with Hep C have a chronic infection.  That means that the virus continues to live in their livers forever.  Of that 80%, up to 20% will develop liver cirrhosis in 20-30 years; 15% face the possibility of liver failure in 10 years; and a smaller number will come down with liver cancer.  A considerable number don't ever become seriously ill.    Prison health care practitioners and budgets rely upon the possibility that either the effects of the disease won't begin to manifest themselves for 20 or more years (hopefully, after the prisoner's release from their custody (read: liability) or that the person won't become ill at all (whew!).

In the community, treatment is given IF a person shows ongoing liver destruction with persistently elevated blood levels of liver enzymes.  Of course, obtaining these tests and monitoring within a prison setting are a challenge that cannot be discounted.  Treatment is also given if the person has evidence of Hep C virus in the blood or if the person's liver biopsy (again, getting one is the problem) discloses scarring and inflammation.

If treatment is given, two drugs are given.  One is peg interferon, which is infused into the vein.  The other is ribavirin, an oral medicine.  If no virus can be found in the blood six months after completion of this treatment, the person is said to have a sustained virologic response -- which is a cautious statement that implies cure, but doesn't come right out and say so.  The number that achieves this state depends on the strain of hepatitis C virus that is responsible for the infection.  With strain 1, 60% achieve viral clearance.  With strains 2 and 3, close to 85% do.  Second treatments can be administered.  Cure is possible.

A booklet on all three hepatitis viruses -- A,B and C -- can be obtained for $4.75 if you write to Dr. Donohue -- No. 503, Box 536475, Orlando, Florida 32853-6475.  The fee must be paid by check or money order (no cash) and the recipient's name and exact address must be printed.  It takes about four weeks for delivery of the booklet.

Prisons often take the bury-our-head-in-the-sand approach.  In other words, if they don't conduct blood viral tests, don't perform liver biopsies, etc., then they don't have to treat serious Hep C cases because they don't "know" about them.  If you suspect that your son's case has progressed to elevated blood levels of liver enzymes, etc., then your son will first have to sign a Medical Information Release Authorization form (he can obtain it from the Health Dept. at his unit) which authorizes you to have access to his confidential medical records.  The DOC ordinarily won't discuss his case with you without this form signed by the inmate.  He should sign and send the original to YOU, and keep a copy to give to DOC.  Next, you should put every communication in WRITING.  The inmate MUST fill out HNR (Health Needs Request) forms; he can't just rely upon outside communication from friends and family.  Keep building a paper trail.

Frankly, in our more than three decades of experience, the squeaky wheel gets the grease.  So, keep writing.  Keep the inmate writing.  Build a paper trail of evidence that prison officials "knew or should have known" of the problem.  Keep in mind, however, that DOC is only required to provide the community standard of care for serious medical needs.  So, unless the disease is manifesting itself in symptoms as listed above, more than likely they are not going to "do" anything except recommend healthy eating habits and lifestyle (no illegal drug use) to the inmate and try to put the burden on him.   They often have time on their side -- the inmate will be released from prison long before they would be required to take action and provide (very expensive) treatment.  

Q:  It's 2011; the prisons system is very overcrowded.  My son heard a rumor that the federal government is stepping in to take over the Arizona prison system, and that all non-dangerous/non-violent people will be released to ease up on the bed space.  He says that this information was communicated in a program on KAET/Channel 8 (Horizon Program).  Is this true?  No, it isn't.  The federal government isn't stepping in to take over Arizona's prisons.  Arizona's response to overcrowding has been to: (1)  build more beds within the state system; (2) contract for additional private prison beds, both within and without the state.  This is the approach our politicians (with the Governor's endorsement) are taking.  If the federal government were poised to step in and take control of the Arizona Prison System, you'd have read about it in the state's largest newspaper,  The Arizona Republic, and would not hear it on a public broadcasting TV station  Perhaps inmates have been "confused" by the FACT that the California Prison system's medical services department has been taken over by the federal court due to documented cases of deaths, etc.  This was as a result of major litigation.  This issue was "big" news a few months ago, even in Arizona.   

Q:  How do I go about getting my civil rights restored after a felony conviction?    This information is provided for general educational purposes.   If you need specific assistance, see a lawyer.   Under Arizona law, a first -time felony conviction is subject to automatic restoration of civil rights (except the right to bear arms) upon full expiration of the sentence.  "First time" felony conviction means it is the first time you were ever convicted of a felony, and the conviction was for one count only.  "Full expiration" of the sentence means that you have fully expired the term of imprisonment and community supervision, probation or parole and that you have fully paid all fines, fees and court-ordered restitution.  Once the sentence is fully expired, you should ask the parole officer or probation officer for an "absolute discharge," which is a piece of paper that formally discharges you from your sentence.

For those who have been convicted of multiple felonies (including a first-time offense, but with more than one felony count), you must apply to the court in the county in which you were convicted.  In Maricopa County, for example, you can obtain forms for Restoration of Civil Rights at the court's Self-Help Center at 201 West Jefferson, Phoenix, Arizona.  Fill out the form, using your case number or numbers, and attach copies of the absolute discharge paperwork for each case to demonstrate that you have fully completed (expired) each sentence.    In some cases, there is a waiting period before you can apply.  The actual process, however, is fairly simple.  Obtain the absolute discharge paperwork which shows you've completed your sentence and paid all restitution, fines, etc.  Fill out the Petition for Restoration of Rights.  Attach a copy of the absolute discharge.  Mail the form to your sentencing court.  You don't have to make a personal appearance (unless you are seeking the right to bear arms).  You don't have to "serve" any other parties.  You probably won't have to make a personal appearance at all in the court.  The state will be given an opportunity by the judge to respond to your request.  In about 60 days, you will be informed (via mail) of the decision.  If your application is missing some information or defective in some way, the court will notify you in writing to correct the problems.

Restoration of civil rights usually includes the right to vote and the right to serve on a jury.  To obtain the right to bear arms, you must specifically ask the sentencing court for that right (it is never automatically restored) and you must attend a hearing to tell the judge why you feel you need to have the right to bear arms restored.  If your felony conviction was for a violent offense or one involving the use or exhibition of a weapon (firearm), the court will not even consider your request for a period of at least ten (10) years.

Once you have obtained a court order restoring your civil rights, or -- in the case of a first-time felony offender who was convicted of only one felony count -- if your civil rights have automatically been restored, we urge you to go to the County Elections Office to register to vote.  The form will ask, "Have you ever been convicted of a felony?"  You MUST answer"yes," even if your rights have been restored.  The next question will be, "If so, have your civil rights been restored?"  Obviously, you will answer "YES" if your civil rights have been restored automatically (after a first felony conviction or by court order after subsequent convictions). You will ordinarily not be asked to show proof of restoration (in other words, you won't be asked to show the court order or any other paperwork).  Instead, when you sign the form at the bottom, you will agree to the paragraph which states that you are certifying by your signature -- and subject to perjury -- that all the information you've placed on the form is true.

If you live in Arizona, but were convicted of a felony in another state, you must utilize the civil rights restoration process which is applicable in the state in which you were convicted.  If you were convicted under federal law, you should consult the statutes for restoration of civil rights after conviction of a federal offense.  In any case, if you have

questions or need assistance, you should consult an attorney.

What is a 603-L Commutation of Sentence?  How Can I apply?

Under Arizona law, a sentencing judge at the time of sentencing can, if he determines that a sentence is "clearly excessive" (but is required to impose it because of mandatory minimum sentencing laws or because of the provisions of a plea bargain), issue an Order which allows the defendant to apply to the Arizona Board of Executive Clemency for a Commutation of Sentence within ninety (90) days of sentencing.  Only the sentencing judge can issue the Order, and the defendant must apply within 90 days of sentencing.  Otherwise, a person applying for a Commutation of Sentence must wait until two flat calendar years have been completed on his sentence before applying (other special provisions which are too lengthy to discuss here may apply).  However, it is important to know that the 603-L (formerly found at A.R.S. 13-603 (K)) is not used very often by judges in Arizona, and when it is used, the Board still sometimes doesn't recommend the person to the Governor for a reduction in sentence.  Also, even when the governor does receive a 603-L recommendation, she is not obligated to grant the commutation.

A person cannot just "apply" for a 603 L commutation of sentence in the same way that he/she can apply (if meeting all eligibility requirements) for a regular commutation of sentence.  Only a sentencing judge at the time of sentencing can make a person eligible to apply under the provisions of A.R.S. 13-603 L.  There is no provision in Arizona law for re-opening a criminal sentence (after the fact) to request that the judge issue a 603 L Order.

Judges throughout the entire state of Arizona rarely use the provisions of 13-603 (L) to issue an order to the Board of Executive Clemency.  We don't know if this is because defense attorneys don't know about this law (we have found many who don't); or if thousands of defense attorneys are requesting the Order, but Judges are denying it.  The actual statistics are stark.  For the following years, here are the number of ORDERS issued throughout the state of Arizona (all counties) which were forwarded to the Board of Executive Clemency:  1999: 2; 2000: 8; 2001:12; 2002: 15; 2003:11; 2004: 19; 2005: 13, and -- as of June 2006: 3.

The above figures do not reflect how many actual commutations (reductions in sentence) were granted by the Governor after having received a recommendation from the Board

Q:   Aren't there a lot of financial benefits available to ex-offenders from social security and other government agencies?   No, there are no benefits directly given to released offenders/ex-offenders in the form of financial assistance or benefits.  There are no loans or grants to released offenders.  In fact, some categories of drug offenders are specifically excluded from eligibility for public assistance to the indigent or for student loans or grants precisely because of their felony conviction for certain types of offenses.  Persistent rumors float around all prisons about a "pot of gold at the end of the rainbow" which purports to be money just waiting to be given to all ex-offenders when they are released from prison.  Nothing could be further from the truth.

The fact is,  food stamps may be available to an ex-offender, but only because he/she is indigent at the time of application for such benefits, and not because the person has just been released from prison.  Some ex-offenders might qualify for social security disability benefits based on a mental illness disability, but this determination takes months, requires certification of the mental disability by a psychiatrist and via testing, and is carefully monitored by the government. Elderly inmates may qualify for social security benefits, but that would be because they are elderly and indigent, and the benefits are about $700/month, which is difficult to live on.  Some elderly inmates we know of collect $700/month from social security and about $125/month in food stamps.  They collect this money because they are elderly and indigent; not because they have been in prison.   No checks are handed over to any public assistance applicant, let alone an ex-offender, within hours of release (as we have seen claimed in documents that have been sent to us from prisoners).  Public health care assistance is available (in Arizona, it's called AHCCCS -- which stands for Arizona Health Care Cost Containment System) to indigent persons and families, but only because of indigency and not because of former incarceration.  Use common sense if you hear about "pots of gold" benefits -- considering the public's attitude about ex-offenders, do you honestly believe that the government is going to hand over checks to all ex-offenders just to be compassionate?  Student loans or grants may be available to certain categories of offenders (some drug offenders are excluded for specific time periods), but -- again -- the award of these benefits is based upon the applicant's indigency or income level, and not upon the fact that the person is an ex-offender.

We know that there are actual documents which are mailed to prisoners from outside the prison, as well as documents that seem to "float" around various prison units which purport to be official instructions about how to access all the "free" government services and benefits available to prisoners, but they are a hoax and written by individuals or groups who don't know what they are talking about.   Please remember the old adage:  If it sounds too good to be true, it probably is.  In this case, it is.


Q: Has the 85% sentencing law been replaced by a 65% law?

NO! The 85% law (formally known as truth-in-sentencing) has been Arizona's controlling criminal code since January 1, 1994. All persons who commit a crime on or after that date are subject to sentencing under the ruth in sentencing code. This means that there is no parole, work furlough, home arrest or any other form of early release -- except temporary release 90 days in advance of the 85% date and the transition program (providing up to 90 days early release in advance of the 85% date) (available.  Not everyone is eligible for the 85% sentencing; some crimes require mandatory minimums and flat time -- which is day-for-day, calendar year for calendar year of the exact sentence imposed.  Since 1994, no proposal has been submitted to the legislature, much less PASSED by the legislature and signed into law by the governor, which would reduce the time required to be served in prison to 65%. Various sentence "tinkering" proposals have been made which would affect limited categories of offenders, but none have passed into law.  At the present time, the "85% law" (officially known as truth-in-sentencing) remains in effect.

 

 

 

 

 

 

 

 

 

 

Q: I'm a prisoner.  My mother died and I wanted to go to her funeral, but the DOC wouldn't let me. Don't I have the right to attend a funeral of a close family?

A: You have no constitutional right on this issue. The DOC has a policy which permits an inmate to attend a funeral or have a bedside visit of an immediate family member who is dying. But they can require your family to pay for transportation costs, extra prison guards to escort you, and limit the transportation to in-state immediate family. If you are not in a position to pay and if your family member cannot pay the money up-front, they will sometimes make an agreement with the inmate to allow him to work off the debt with a prison job. However, you do not have a constitutional right to any of these privileges. The only thing that would implicate a constitutional right is if the DOC established a policy that stated, "Only Mexican American inmates will be permitted to attend family funerals . . ." The Department can discriminate by crime category or for security reasons-- such as not permitting anyone on death row to have funeral privileges -- but they may not discriminate by race, sex, etc. The Department's policy is fairly restrictive in that a death bed visit may only be utilized if the dying relative is in a hospital or institutional hospice care. If the dying person is in HOME hospice care, the inmate will not be taken to that location for a death-bed visit.

Q: I have a hernia and can't seem to get an operation; can I file a lawsuit for medical malpractice or for a violation of my 8th amendment right to be free of cruel and unusual punishment?

A: Prisoners are entitled to the "community standard of care," when it comes to health services for their SERIOUS medical needs. Prison officials, according to established case law, may not be "deliberately indifferent to a prisoner's serious medical needs." So, for someone with diabetes, a heart condition, cancer, etc., the ADOC must provide the same treatment and service that would be available to any indigent person in the community if the person were not in prison. Doctors vary in their treatment of hernia problems; some like to operate immediately, while some try to treat it using pain management and other methods, such as truss support. The community standard of care is what is required. Just because a prisoner desires surgery, he/she is not entitled to it. However, if the pain is unbearable or if the method being used to control the pain is not working, a prisoner needs to carefully and continuously document in writing to the health care department at the prison the FACTS of his case and the fact that the current method of treatment is not working. Complaining to family and friends is not the same as filling out HNR (Health Needs Request) forms and submitting them according to policy. Prisoners can send copies of such forms outside the prison, but they MUST document their heath needs requests completely according to policy. The point is to build a "paper trail" of proof that the prisoner attempted to obtain health services via the policies established.

Q: Are conjugal visits permitted in Arizona's prisons?

A: No, they are not permitted, nor have they been in the past. Arizona does have a "temporary release" statute which formerly was used to permit a "home furlough" program. This allowed well-behaved inmates to go home -- sometimes for periods up to 72 hours at a time -- to visit family. Only immediate family members could qualify to participate in a home furlough program. Now, the Department of Corrections no longer operates this program due to political backlash against programs in other states that resulted in new crimes by the furloughed inmate. Arizona's program operated for many years (in the 1970's to 1980's) and was successful in keeping prisoners in touch with their community and with their family, but the rehabilitative ideal is (today) merely lip-service within the Arizona Department of Corrections and home furloughs are not a viable political option for prison administrators..

Q: My judge issued an order recommending that I receive mental health treatment while in prison; aren't they obligated to give it to me? Also, I know of another prisoner whose judge recommended that he be sent to a minimum custody prison unit, but they keep him in a Level 3 yard. Aren't they (the DOC) obligated to put him in minimum custody since the judge recommended it?

A: Once the sentencing judge pronounces sentence, the court loses "jurisdiction" over the prisoner. Now, he/she is a ward of the state -- and belongs to ADOC or the county jail, depending upon where he was sentenced to serve time. A recommendation is just that -- a recommendation.   The prison or jail system is not bound by law to follow it. Supposedly, both prison and jail officials give "extra weight" to such recommendations, but their definition of "treatment" may be different from what a judge had in mind. The bottom line is this: there is no constitutional right to rehabilitation or to treatment (except medical treatment for serious medical needs). Therefore, if the DOC doesn't provide it, they are not in violation of a right. The same goes for custody levels and unit security classifications. Much case law exists which states that prisoners have no right to a particular custody level or classification. The only thing that is not permitted is to punish a prisoner with higher custody levels because, perhaps, of his race, his religion, etc. 


Q: My husband has the chance to turn himself in for a prison sentence which will begin in 30 days. Is there something he can do while he is still out to prepare for a five-year sentence?

A: Yes; first, he should see his family doctor and get up-to-the-minute prescriptions on any illnesses he has. He won't be able to bring the prescriptions with him into prison, but he should also have his doctor sign a letter which details each and every medical condition he has (serious ones, especially) and what the consequences will be if those medical conditions are left untreated. Your husband should take a copy of this letter with him to prison when he turns himself in, and you should forward a copy of it BY REGISTERED, CERTIFIED MAIL to the Administrator of Health Services, ADOC, 1601 W. Jefferson, Phoenix, Arizona 85007. That way, the ADOC can't claim that they were unaware of his serious medical needs. 

In addition, your husband should see his eye doctor, if applicable, and get an updated set of glasses, including sunglasses. You should, if you can afford to, obtain a duplicate pair of glasses -- and this is important -- in the same exact frame, so that if he breaks them or damages them in any manner, they can easily be exchanged during visitation. The frames must be all plastic, including the stems.  This is not an invitation to introduce contraband into the institution, but we are realistic about how long it takes for the DOC to serve the vision needs of prisoners.

Finally, he should see his dentist immediately and have a thorough cleaning and take care of any potential problems that even look like they might crop up during the next five years. There is virtually NO preventive dental care of any type within the prison system.  All fillings, crowns, etc. should be taken care of prior to entering prison.

If applicable, the prisoner should obtain an updated hearing aid, or any other medical device which he has been using while in the community  Do not expect the Department of Corrections to timely provide such devices, or to provide new ones. 

If the prisoner in question were female, we would also advise a Pap smear and mammogram, as these tests are not available to female prisoners unless a problem has already been identified (a lump, discharge, etc.). Unfortunately, preventive health care is not realistically available within the prison system. 

In addition to the above medical issues, we would strongly advise that he make a Will; execute a Power of Attorney for financial affairs; notify the supervising court (if applicable) of any child support issues (prisoners are not automatically forgiven child support payments while in prison; they must notify the court of changed financial circumstances and request  IN WRITING a reduction in the court-ordered amount of support). For female prisoners who are custodial parents of a child or children, we suggest making arrangements for child care and custody with a trusted family member or working closely with Child Protective Services for arrangements during foster care. Obtain accurate addresses and phone numbers of the ten (10) persons you will wish to list on visitation/telephone list forms for future contact. Social security numbers are NOT required to be provided for your visitors to obtain visitation/telephone contact approval, and we recommend that the social security numbernot be provided to DOC. 

Purchase a very inexpensive watch ($25 value or less) and make sure that a wedding ring, if applicable, is not flashy or expensive. On the day of sentencing, whatever amount of cash you have in your pocket will be taken from you but added to your inmate/prisoner account.  We recommed no more than $250.  This can be used to purchase basic supplies, stamps, etc.  However, we strongly recommend that NO ONE enter the prison system and immediately begin spending large sums of money on a TV, extra food stuffs, extra clothing, etc.  If you do, you (and your family) will be "advertising" yourselves as people with money -- at least to most other prisoners, some of whom have nothing -- and setting yourself up to be a target for extortion and other threats or intimidation.  

Do not borrow anything or lend anything in prison.  Go without.  Cheerfully.  Don't volunteer information.  Listen and watch.  Don't be the center of attention.   If someone asks to "see your paperwork" (which consists of your sentencing documents showing the actual crime you are convicted of), tell them, "I am perfectly happy to show you my paperwork, but only if you show me yours."  (Do not volunteer to do this if you are a high profile inmate; a child molester, etc.)  

If you are fortunate enough to have advance time to prepare for your entry to the prison syste and want to speak to James and Donna Hamm, please call for a consultation.  Many have done so and have benefitted from the information.  480 966-8116.

 

Q: My cell mate has filed about four PCR Petitions, but I was told by my lawyer that I can only file one, and it must be done within 90 days after sentencing. Why the difference?

A: If your cell mate was sentenced PRIOR to September 29, 1992, he/she is entitled to file more than one PCR (Post Conviction Relief) Petition, as long as the new petition does not attempt to re-hash issues that have already been adjudicated. If sentenced after 9/29/92, a defendant has 90-days in which to file a NOTICE of PCR. The actual PCR document does not have to be filed until all the transcripts are obtained, etc., but it is imperative that the Notice (of intent to file) Rule 32 is filed within 90-days of sentencing. In some cases, an exception can be made and sometimes -- if there is newly discovered evidence which would have affected the outcome of the proceedings AND if that evidence was completely unavailable to the defendant at the time he/she filed his initial PCR, then a second PCR could be filed by those who were sentenced after 9/29/92.

Q:  My husband was convicted of a disciplinary write-up in prison, but has filed an appeal.  How can the prison impose the punishment -- loss of privileges --  if the appeals process has not been completed?'

For the same reason that they can send someone to prison to begin serving a prison sentence, even if the person intends to file an appeal.  The law permits them to do it.  Only the very rich and well-connected people -- Martha Stewart, for example, are given permission to suspend imposition of the sentence pending outcome of an appeal.

Generally speaking, when an inmate loses privileges as a result of a disciplinary violation, it means that he/she has been convicted of a "minor" rule infraction.  "Major" rule infractions carry much more serious penalties, including forfeiture of earned release credit days and placement in Parole Class III (which means that the inmate does not earn any new release credits during the time he/she is assigned to Parole Class III).  In either case, prison authorities are permitted to impose the sanction.  If, on the very rare occasion that an appeal results in overturning the conviction, the punishment included re-classification to higher custody or forfeiture of ERC's, the prison is required to restore an inmate to his former classification score (but not to his former living unit) and to restore the forfeited ERC days, but any other "privileges," (such as commissary, TV, phone calls, etc. -- which are not constitutional rights) are not considered serious enough to have the courts worry about them.  

Q:  My son is in prison and has been denied a Commutation of Sentence.  Now, he wants to apply for a Pardon.  Can he do that?  What are his chances?

We know of no instance in the history of Arizona where a sitting governor has granted a pardon to someone currently in prison.  None. Period.  A pardon cannot be granted by the governor on his/her own.  Instead, it must be recommended to the governor by the Board of Executive Clemency.  The Board doesn't grant pardons; they can only recommend them to the governor.  It works this way because it is designed as a 'check and balance' system to avoid political pay-offs to governors (which has happened in other states where this check and balance system did not exist). 

A pardon absolves the convicted person of all consequences of a criminal conviction.  They are very rarely granted.  In our opinion, if the governor denied a commutation of sentence, the likelihood of granting a pardon is nil.  Pardons are generally granted to persons who have fully expired their sentences, have been out of prison for quite a large number of years, and have made extraordinary strides to redeem themselves and their lives in the community.  Pardons are a part of the executive clemency powers that are granted to the governor via the Arizona Constitution.  They are an "act of grace" by the executive (governor) and, technically, override the courts (judicial branch of government).  They are a rare bird, indeed (except by former President Clinton on his last day in office!).

Q:  In 1999, Middle Ground provided a service to prisoners which included the sale of packets of information and/or forms which could be mailed to the prison.  Do you still provide that service?   No.  Due to difficulties that arose shortly after offering this service, we were forced to stop.  We simply could not stock enough of the various forms to make it feasible for providing them on a timely basis to everyone who requested them.  We terminated this service in early 2000.  All ADOC checks that were not been cashed within the allowable time limit (within 6 months) should have been reimbursed to the individual inmate account.  We are not responsible for unsolicited attempts to utilize the Form List/Order Form which was in effect only in 1999.

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