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Clemency board at risk of lawsuit for unfulfilled obligation, seeks additional funding

The Arizona Board of Executive Clemency is requesting about $34,000 to fund a part-time position needed to conduct probable cause hearings – an obligation the board has not fulfilled since funding was cut in 2010.

According to the board’s budget request for fiscal year 2019, federal law grants offenders the right to a probable cause hearing to determine whether someone has violated the terms of parole or community supervision.

But without funding for a hearing officer, the board did not conduct nearly 1,000 such hearings between 2015 and 2016, and that number continues to grow. In fiscal year 2017, an additional 578 offenders requested a probable cause hearing, placing the board “in a position of potential liability.”

“Without that determination in matters where probable cause is requested one may conclude that an offender was deprived of due process and his or her liberty was removed longer than necessary,” the written request says.

Executive Director Ellen Kirschbaum said the same request was made last year but was not added to the board’s budget, which is just shy of $1 million. Funding for a full-time position has also been requested in the past to no avail.

Offenders have so far not “made this a big issue,” Kirschbaum said, but that could soon change.

Jake Wideman (Arizona Department of Corrections)

Jake Wideman (Arizona Department of Corrections)

Jake Wideman, a convicted murderer who was released on home arrest last year, was returned to prison in July after allegedly violating the terms of his release.

Kirschbaum said Wideman had requested a probable cause hearing. The hearings are to take place within 10 days of the request.

Wideman did get a revocation hearing, which is different from a probable cause hearing and typically takes place within 60 days of arrest.

Kirschbaum said that although the board expedited his revocation hearing in an attempt to accommodate the request, she said he is likely to take legal action.

And perhaps that, she said, will be enough to raise “a big, red flag” at Gov. Doug Ducey’s office.

A Ducey spokesman did not immediately return a request for comment.

But the issue is far larger than Wideman alone.

Donna Hamm, director of Middle Ground Prison Reform, said not many offenders request a probable cause hearing, but those who do stand to gain their freedom more quickly.

According to the budget request, the board had three full-time hearing officers before 2002. Then, budget cuts left just one full-time position. And further cuts eliminated the position altogether in 2010.

Hamm said that was ill-advised.

“Apparently,” she said, “(the board was) not getting good legal advice.”

The thinking at the time was that the revocation hearing satisfied the need, according to the budget request.

The legal community has since taken issue with that justification, raising claims of “potential deliberate indifference for offenders who have the right to due process,” the budget request says.

One comment

  1. AZ Executive Board of Clemency has again ignored due process and a 70 year old innocent man sits in prison. Special action filed in Superior Court by Richard Claxton against the board 2 weeks ago after Claxtons hearing was postponed 2 times in as many months only to be rescheduled the same day of Wideman hearing.

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