Absolute
discharge from parole is governed by the provisions of A.R.S. §
31-414, while absolute discharge from imprisonment
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)).
