PROCEDURE FOR ABSOLUTE DISCHARGE RELEASE FROM PAROLE

Absolute discharge from parole is governed by the provisions of A.R.S. § 31-414, while absolute discharge fromimprisonment is governed by A.R.S. § 31-412.B, the basic parole statute. The reason that there are separate statutes is that absolute discharge from imprisonment is an alternative to placing a person on parole a decision by the Board that the offender needs no period of parole supervision whatsoever. Absolute discharge from parole, however, is a decision that parole supervision may be terminated prior to expiration of the offender's sentence, based on the offender's behavior while on parole.

For many years, the ADOC's involvement in absolute discharge actions has been growing. Historically, the ADOC had no role whatsoever. Over time, the legislature enacted a series of changes to the statute which increased the ADOC's role from that of merely certifying that the applicant was eligible for consideration for absolute discharge to submitting a report outlining the parolee's conduct while on parole, to making a recommendation regarding the advisability of granting absolute discharge, to its current ``gatekeeper'' function whereby no person may apply for absolute discharge without first having been recommended by the ADOC.

The ADOC has a policy on the subject of recommending absolute discharge from parole. However, it is very important for prisoners who have present or future parole eligibility and prisoners who currently are on parole to understand that the last role mentioned above the gatekeeper function was the product of a statutory change enacted at the legislature in 1993, and that statutory change applies only to offenses committed after the effective date.

Thanks to Middle Ground's advocacy on this issue, the Board of Executive Clemency now recognizes that if you are on parole for a crime committed prior to the enactment of the 1993 change in A.R.S. § 31-414, you legally may apply directly to the Board for an absolute discharge from parole. In plain language, you are NOT required to wait until your parole officer recommends you to the Board.

The reason that the 1993 statutory change in the ADOC's role is not retroactive to all offenses is that the United States Constitution contains an ex post facto clause prohibiting after-the-fact increases in punishment. A substantive change from statutorily unqualified eligibility for consideration for absolute discharge from parole to one of substantive changes restricting rights may be applied only prospectively. One of the most firmly established principles of federal constitutional law is that the law in effect at the time an offense is committed will control the offender's subsequent eligibility for commutation, parole, or discharge from parole. No provision of law that later attaches substantive ``...legal consequences to a crime committed before the law took effect'' can ever be applied without violating the ex post facto prohibitions of the United States Constitution(Weaver v. Graham, 450 U.S. 24, 31 (1981)).