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Persons eligible for parole.—Every prisoner confined upon an indeterminate sentence,20 whose minimum term has expired, or any prisoner serving a definite sentence at the time the Penal Code of 1913 became effective, is given an opportunity to apply for release upon parole or for an absolute discharge.21

The board can consider for parole only those prisoners who have served their minimum terms.22 If the board wishes to parole a prisoner who has been sentenced for a long minimum term before the term has expired this can be accomplished only by reduction of the term through commutation.23

Although the board has authority to parole a life prisoner at any time, since the statutes make no restrictions in such cases, such prisoners are not in practice paroled until several years have been served.

Method of application.-A prisoner may receive consideration for parole either upon the recommendation of the superintendent of the prison or upon his own direct application. In practice, formal applications are not often filed. The list prepared by the parole clerk serves as the application.

24

20 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5109. The court determines both the maximum and minimum terms within the statutes, except where statute provides otherwise, as in the cases where the jury fixes sentence. Indian Fred v. State, 36 Ariz. 48, 282 Pac. 930 (1929). The tendency is to fix a comparatively high minimum. Infra note 23.

21 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5109; Rules of the Board, No. 5. If the minimum sentence is served, the board is duty bound to give a hearing. State v. Super. Ct., 30 Ariz. 332, 246 Pac. 1033 (1926).

22 This is held to be jurisdictional. State v. Super. Ct., 30 Ariz. 332, 246 Pac. 1033 (1926). There is no absolute right to a discharge until the expiration of the maximum term less good time deductions. Orme v. Rogers, 32 Ariz. 502, 260 Pac. 190 (1927). The minimum sentence is that fixed by the court unless good-time deductions from the maximum reduce the term below the minimum. Rules of the Board, Nos. 6, 19, 20; Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5318; Clark v. State, 23 Ariz. 470, 202 Pac. 1032 (1922).

23 This device is commonly used. It is frequently desirable because of the long minimum sentences given by the trial courts. There seems to be some misunderstanding of the operation of the two "good-time" statutes, one of which is for graduated deductions and the other for double time deductions for those in positions of trust. Ariz. Rev. Code Ann. (Struckmeyer, 1928) §§ 5318, 5319. As a matter of prison administration many prisoners enjoy positions of trust and obtain "two-for-one" time deductions. Hence, many are entitled to discharge before they are eligible for parole upon expiration of their maximum terms. Consequently, in order to maintain some outside supervision over the prisoner, his minimum sentence is commuted in order that he may be eligible for parole before he is entitled to an absolute discharge.

Rules of the Board, No. 4.

The parole clerk makes up, for each meeting of the board, a list of prisoners whose minimum terms will expire within 2 months of the meeting. The application of a prisoner who has escaped is not considered unless he has served at least 1 year in addition to his minimum sentence.25 Neither does the board entertain an application by a defendant pending an appeal to the supreme court by him nor at any time before judgment and commitment of the trial court has been pronounced.20

If parole is denied, another application will not be entertained for at least 6 months.27

Hearing: Prior investigation.-In considering a case for parole the board has before it a statement of the case prepared by the trial judge and prosecuting county attorney,28 a summary of information taken from the prison records by the prison secretary and inmate assistants, and correspondence and other data collected by the chairman of the board. Usually the chairman alone is familiar with the cases before the hearing is held.

Before a case for parole is considered by the board, notice must be given the judge of the superior court and the county attorney of the county in which the prisoner was sentenced.29

Hearing: Time and conduct of hearing.-Although by law the board is required to meet quarterly only,30 meetings are held every 2 months at the prison. Usually some persons other than the board members attend.31

Each prisoner, as he appears, is given opportunity to make a statement, and he is questioned. The board makes

Rules of the Board, No. 24.

28 Id. No. 18.

27 Id. No. 17; Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5320. 28 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5328.

29 Id. § 5320, as amended Ariz. Laws 1937, ch. 28. The notice must state the name of the prisoner involved and fix the date of the hearing and must be sent by registered mail. Parole cannot be granted within 30 days after giving notice. Such notice is not required: (1) when there is imminent danger of death of the person imprisoned, or (2) when the term of imprisonment of the applicant is within 10 days of its expiration. Ibid.

80 Id. § 5219. Rules of the Board, No. 1. A hearing in a case must originate at the prison although it may be continued at the capitol. Ibid.

81 They may be the prison superintendent, the parole clerk, the assistant superintendent, the captain of the yard, the teacher, a chaplain, the prison secretary, a bailiff, a reporter, or friends or families of the applicants. Attendance of lawyers is discouraged.

its decision immediately after hearing each case. The session lasts for 1 day only. Sometimes the board disposes of over fifty cases in a 5-hour session.

The boards considers cases of parole violation at the same meeting.

Hearing: Disposition.-The board acts on majority vote, and it may grant parole, deny parole or pass the case.32 The board is required not to grant a parole unless it affirmatively appears that there is a reasonable probability that the prisoner will remain at liberty without violating the law.33

Conditions for parole. The board specifies certain conditions in every parole 34 and may add others as it chooses.

Upon release each prisoner is given his own belongings and a suit, $5, and an "untransferable" railroad ticket for 300 miles. For 3 months previous to release he may grow hair, beard and mustache.35

Supervision.-A prisoner released on parole is in the legal custody and under the control of the parole clerk and the superintendent of the prison until the expiration of the maximum sentence, but no provision is made for parole agents or for systematic parole supervision.37

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If the case is passed it may be taken up before 6 months elapse as is necessary in case of a denial of parole.

Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5322. Rules of the Board, No. 7. This relates to the sufficiency of showing and is not jurisdictional. State v. Super. Ct., 30 Ariz. 332, 246 Pac. 1033 (1926).

"The parole proclamation contains this language:

"This parole is granted upon the following terms and conditions which shall be in effect until the maximum sentence of said prisoner shall have expired: "First-He shall abstain from the use of intoxicants, and not frequent places where intoxicants are manufactured, sold, disposed of or given away. "Second-He shall not engage in any form of gambling or frequent places where gambling is done, including pool halls and other such places.

"Third-He shall abstain from vicious, lewd, or unworthy companions and associates, keeping his conduct at all times consistent with that of the best and most worthy citizen of the community.

"Fourth-He shall report to the parole clerk at Florence, Ariz., in writing on the 1st day of each month:

"(a) Stating his residence, and with whom residing (indicating whether alone, with parents, wife and family, relatives, etc.); "(b) By whom employed, and address of employer; "(c) Give an account of earnings for previous month." Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5329. Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5322. No. 8.

Rules of the Board,

37 The chairman of the board of pardons and paroles gives about half of his time to supervisory work and he is kept informed by some peace officers throughout the State. He is assisted to some extent by adult probation officers.

Monthly reports from the parolees constitute the principal means of contact between parolees and the board, but the reports are not made systematically. Not all persons are required to report, and few are required to report after 1 year. When reports are not required, nothing more is heard from the parolee unless information is received that he has committed a crime. Reports are sent to the State supervisor of parolees.40

The parole clerk is required to assist parolees and discharged prisoners in securing employment, to inform the superintendent of the prison as to the conduct of parolees, and to make a monthly report thereof as to each prisoner.11

Procedure on violation of parole.-When a parolee is arrested for a new crime, and frequently when a parolee is involved in a disturbance, the chairman of the board is notified. He makes an investigation, and if he feels such action justifiable, he issues a warrant for the return of the parolee to the State prison. The warrant may be issued by the parole clerk, the prison superintendent, or any member of the board for the retaking of a prisoner prior to the expiration of his maximum sentence.2 The warrant may be served by any prison officer or other officer authorized to serve criminal process."

43

When a parolee is returned for violation, he is given a hearing at the next meeting of the board." At the hearing

38 Each parolee is given forms for reporting his name and address, the name of his employer, the length of employment, the amount of his earnings, with whom he has resided, whether he has been arrested or violated his parole and, if so, the reasons for such violation. A false statement in a report constitutes a violation, according to the printed parole form.

A parolee is not required to report on these forms, however. He may send a letter giving his name, address, and occupation. Few failures to report are considered violations.

89 Over 10 percent of the prisoners are native Mexicans who are paroled to the United States Immigration Service for deportation. No reports are required from them.

In cases where parolees are allowed to leave the United States, reports are expected, but since no action is taken upon failure to report, few of these parolees report regularly.

40 The reports are filed by an inmate assistant, and the chairman of the board is informed of cases of failure to report.

41 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5327. No regular procedure is followed in this respect, although prison officials frequently assist prisoners in finding employment when released.

42 Id. § 5323; Rules of the Board, No. 10.

48 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5324.

44 Id. § 5325; Rules of the Board, No. 11.

the chairman presents the information which he has concerning the case, and the parolee is given an opportunity to explain his violation. The board then takes positive action, usually revoking the parole.45

Parole may be revoked on evidence of a violation even if the parolee has not been returned to custody.40

Recommitment: Effect on original sentence.-A parole violator when recommitted is required to serve the balance of his maximum sentence remaining at the time parole was granted," with or without benefit of credits earned, as the board determines.48

Recommitment: Effect and eligibility for further parole.-Apparently a recommitted parole violator is eligible for parole at any time, and there is no limit on the number of times a prisoner may be reparoled.

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Final discharge.-A prisoner on parole may apply, before expiration of his maximum term, for an absolute discharge, which may be granted if there appears to the board to be a reasonable probability that the action would be compatible with the welfare of society. Such a discharge has been said to be less than a pardon,51 but since no discharge has been granted by the board the constitutional question of conflict with the pardoning power of the Governor has not arisen.52

If no action of the board intervenes the parole of a prisoner terminates with the expiration of the maximum sentence.53 This has been interpreted as allowing deductions for statutory good time even while on parole.

45 This especially is true if the parolee has committed another crime or made himself obnoxious to his community. If the violation is not flagrant or if he is needed to support his dependents he may be reinstated on parole. 46 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5325. Apparently the warrant must have been issued, however, before such action can be taken by the board. * Id. § 5325. But see Orme v. Rogers, 32 Ariz. 502, 260 Pac. 190 (1927), to the effect that parole is looked upon as service of the sentence outside prison walls.

49 Such credits are subject to forfeiture, the board being the sole judge as to such action. Id. §§ 5318, 5319.

49 This is evident from the language of the statute:

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unless sooner

52 The opinion of the members is that such a discharge would not be upheld

if tested in the courts.

5 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5322.

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