BELOW INFORMATION IS NOT LEGAL ADVICE. IT IS PROVIDED FOR EDUCATIONAL/INFORMATIONAL PURPOSES ONLY.  IF YOU REQUIRE THE SERVICES OF AN ATTORNEY, CONSULT WITH ONE WHO SPECIALIZES IN THE TYPE OF LEGAL WORK YOU REQUIRE.

DIFFERENCE BETWEEN "PAROLE" AND "COMMUNITY SUPERVISION"

As a practical matter, let us make it absolutely clear: If a crime was committed on or after January 1, 1994, and the person was sentenced to prison, and when he is released, he is NOT on "parole." (There is one exception to this; too complicated to explain here but applies to some prisoners sentenced to Life with "parole" after 25 years). Parole was eliminated from Arizona's criminal code effective 1/1/94. For all sentences imposed AFTER 1/1/94, the person is sentenced to prison AND to a term of "community supervision" which is equal to approximately 1/7th of the imposed sentence. Even for those who are sentenced to flat time and must serve each calendar day of the imposed sentence, they must still serve 1/7th of the imposed sentence on community supervision. Worse, if that person violates one or more terms of his community supervision, he can be returned to prison to serve out the remainder of his community supervision term IN PRISON! An inmate does not have to be voted on or "granted" community supervision. If he has a non-dangerous/non-repetitive truth-in-sentencing sentence and is required to serve about 85% of it until he reaches his earned release credit date, which is at the 85.7% mark of eligible sentences. If he reaches this mark and meets other departmental policy, he is released. Some earlier releases may apply, such as Temporary Release (TR) or Transition Program Release, both of which allow an inmate to be released "up to" 90 days in advance of his earned release credit date.

In 2019, the Legislature passed a bill which allows those convicted of POSSESSION of drugs and/or POSSESSION of drug paraphernalia to serve only 70% of their imposed sentence, rather than 85% of it. Some restrictions apply. No other categories of crimes were included in this bill.  This is referred to as SB 1310 release.

For crimes committed prior to 1/1/94, inmates are eligible for soft-time (parole eligibility at 1/2 of the sentence imposed); hard-time (parole eligibility at 2/3 of the sentence); mandatory release, flat-time and other types of release eligibility. If parole eligible, these pre-1994 inmates are also eligible for Home Arrest. NO inmates whose crimes were committed on or after 1/1/94 are eligible for home arrest. Parole and/or home arrest can only be voted upon and granted by the Arizona Board of Executive Clemency and only for those who are eligible for it. Community Supervision does not require any vote by or participation of the Board (except that the Board has authority to REVOKE those who violate the conditions of their community supervision).

For inmates serving Life Sentences with parole eligibility after the service of 25 flat calendar years (or after 35 flat calendar years for some crimes) who have consecutive sentences, they must be paroled to the consecutive sentence, expire the new / consecutive sentence, and must still go back to the Board to be paroled on the Life sentence to the street. A parole to a consecutive sentence falls under ARS 31-412 (B). A parole to the street for an eligible inmate, falls under the provisions of ARS 31-412 (A).

VIOLATIONS IN THE PAROLE/COMMUNITY SUPERVISION PROCESS BY ADOC:  SERIOUS VIOLATIONS OCCURING I

It has come to our attention that the Dept. of Corrections is violation state laws with respect to the violation of certain offenders who are on parole or community supervision. Our reading of state law requires that BEFORE issuing an arrest warrant to take a released offender into custody, two criteria must be met: (1) the offender must have violated one or more of his/her conditions of supervision; AND (2) there must be reasonable cause to believe that the offender has or is about to lapse into criminal conduct or ways. So, obviously, an offender who absconds from supervision and does not report to his parole officer for even one missed meeting can reasonably be assumed to have lapsed into criminal conduct and has surely violated a term of supervision (which requires him to timely and consistently report). Or, an offender who is faithfully reporting to his parole officer, but who tests positive for illegal drug use can be assumed to have lapsed into criminal ways (illegal drug use) and violation of the terms of supervision. Those are easy cases and represent the bulk of the cases that go before the Board for revocation hearings. Even though these are "technical violations" of conditions of supervision and don't involve brand new crimes, they are still considered serious by Board members and others in the criminal justice system.

In the recent past, however, we are aware of at least two major cases (both regarding sex offenders) where the parole officer issued a warrant and had the offender arrested just on suspicion of violating a condition of supervision without ever checking or confirming if he had actually done so. One man spent 65 days in custody before he was reinstated on parole. This offender was accused of have pornography on his iPad when, in fact, he had advertisements for adult content programming from HBO on his iPad and the investigating parole authorities didn't bother to check if he had downloaded and actually watched these adult content programs. In any case, ADULT PORN is not illegal anyway, so their investigation would not have held up to scrutiny even if their case had gotten that far before the Board. Thankfully, the Board found the inmate "not guilty" of violating his conditions of supervision at the first phase of the revocation proceedings, so they never had to consider the question of whether he violated the law or not. Still, he spent 65 days in prison awaiting his revocation hearing.

On another recent case, a sex offender broke his curfew for a total of 52 minutes while he was riding his ATV around his remote neighborhood in Northern Arizona to take photographs of the blood moon. He was clearly guilty of breaking his curfew, which was a violation of the conditions of supervision. However, without conducting any investigation other than asking the offender, "What were you doing,?" the parole officer and his supervisor decided to issue an arrest warrant and take the man into custody for revocation proceedings. This man spent almost 60 days in custody before being reinstated on supervision.

The definition of due process of law (See BLACK's LAW DICTIONARY) mandates fairness, especially when one's freedom/liberty are at issue. We will continue to press the ADOC to train their parole staff in proper application of the law, and we will publicize it when they violate it.

MEDICAL MARIJUANA USE FOR RELEASED OFFENDERS IS "APPROVED" BY DOC

The Arizona Supreme Court (2015) ruled that persons on probation cannot be denied the use of medical marijuana if it is legally prescribed by a doctor. Their ruling surrounds the fact that the AMMA (Arizona Medical Marijuana Act) was passed into law by a voter initiative (started by the people of the state, even though not approved by the legislature) and that probationers are "people." This ruling must also apply to those on community supervision and parole (under supervision of Arizona Dept. of Corrections). The cases are State v. Ferrell, and Kaliher v. Hoggatt.

After much prodding and cajoling on our part, the ADOC has finally revised its official "Directive/Lawful Order" form regarding Medical Marijuana which is required to be signed by each person who is released under parole or community supervision authority. The new form is artfully designed to encourage the newly released offender not to notice that there is a paragraph which actually grants permission to him/her to use medical marijuana if meeting the criteria of the AMMA. On the new form there is a paragraph written in bold type face which spells out the general prohibition against using all types of marijuana. The next paragraph, which is written in regular type set (not bold) is the one that actually advises the released offender that he/she can use up to 2.5 ounces of marijuana per/14-day period as long as all criteria/eligibility provisions of the AMMA are met.

For all those currently on release status, the new form will be presented to them for READING and signature during their next regularly scheduled visit with their assigned parole officer. For those who are about to be released, the new form should be provided with all other paperwork they are ordered to sign prior to release or upon meeting with the parole officer. YOU ARE ENTITLED TO A COPY OF ANY DOCUMENT YOU SIGN YOUR NAME TO.

For obvious reasons, we strongly encourage all inmates or released offenders to READ any document thoroughly BEFORE signing it and demand a copy of the form if you sign it. We are not encouraging marijuana use by released criminal offenders. By providing this information, we are simply keeping our mandate to keep inmates and their families and supporters fully advised of your RIGHTS under the law. This particular right was determined by rule of the Arizona Supreme Court and was not challenged on appeal by the State.

1. If you qualify, obtain Medical Marijuana card from your doctor or a licensed dispensing facility.

2. In writing, and by certified mail, send a letter to your supervising officer stating that your doctor has prescribed medical marijuana and you need to take it to relieve the symptoms that is has been prescribed to address (you are not required to reveal your medical condition to probation or corrections authorities, as this information is confidential and protected by HIPPA). Include a photocopy of your card. Give them no more than 15 days to respond.

3. Wait for a response from the supervising agency. Most likely, it will be a denial. If they don't respond in writing and, instead, your PO calls you into the office, tell them you need the response in writing. If they refuse, then politely advise that you will accept their decision and obey all conditions, but that you intend to legally challenge their decision. Write down as much information as you can recall from the meeting or from the conversation if it was by telephone.

4. Contact us if you have additional questions.

ADDED JANUARY 2021: Now that recreational marijuana has been approved as a result of a Citizen's Initiative passed by a wide margin in Arizona,  criminal justice authorities will mandate no use of recreational marijuana as a condition of supervision. While a person has a federal constitutional right to be prescribed marijuana by a doctor, he has no constitutional right to use it recreationally while under criminal justice supervision, just as the ban on use of alcohol (which is legal) has been upheld, especially for any offender who has any history of substance abuse.

ADDED JUNE 2023:   Now that recreational use of marijuana is legal in Arizona (along with medical use), the ADCRR has had to adjust its policies even for employees.  Prison staff are permitted to use recreational marijuana, but they are instructed not to use it for 4 hours prior to reporting to a shift.  It will be interesting to see what challenges and problems arise from situations which will come up in the future around this issue.

Also, the use of K9 alert dogs for prison visitors is something we have contacted ADCRR about.  K9 dogs can only smell the odor of illegal drugs; they can't differentiate between the drugs.  Now that marijuana is legal, a K9 might alert on a visitor who smokes or vapes marijuana, but just an odor is insufficient to suspend a visit for illegal drugs.  Of course, ADCRR can still prohibit marijuana, alcohol, guns, etc. on prison property, even if all those things are legal off prison grounds.  We are waiting to see what new policy is developed by ADCRR to address K9 alerts.  In the meantime, the dogs are essentially obsolete unless they can be untrained to smell marijuana. . .?