A recent article entitled “Conservative in Criminal Defense/Public Policy” contains some errors that are not just important to overall understanding of our current criminal code, but also illustrate why some of the voices at the Legislature have confused legislators. Most likely, those same voices also make legislators wary about implementing any changes at all – positive or negative, liberal or conservative – and are wholly frustrating to those who do understand how all aspects of  Arizona’s criminal code is implemented in terms of sentencing criminal offenders.

Kurt Altman, who laments our truth-in-sentencing code, provides an example of two guys “who get 10 years (each) in prison. One guy goes in, gets a job, an education and makes himself better, and he has to serve eight and one-half years due to truth-in-sentencing.”  Altman  goes on to claim that another guy goes in with a 10-year sentence and he “gets in trouble, never comes out of his cell, never betters himself.” He claims that this guy will also serve only eight and one-half years of his 10-year sentence. This is patently false information.

Each time a prisoner “gets in trouble” within the prison system, and if it is a serious (major) disciplinary sanction, he not only loses privileges such as visits, commissary, and may be assigned to a higher classification unit with fewer privileges, but he also forfeits earned release credit days and is commonly placed in what is known as parole class three, which is a non-credit earning status for a period of days. While in “class three time,” the prisoner is essentially serving flat-time, or in other words, earning no release credits at all. In addition to the number of his already earned release credit days that are forfeited for a major disciplinary infraction, the prisoner also cannot earn new ones for a specific amount of time. Both of these factors negatively impact the prisoner’s release eligibility date – moving it forward into the future. If he maintains a disciplinary-free record for a period of one year or more, the prisoner can apply to have previously forfeited release credits restored and can also apply to have class three time rescinded. It is up to the department to determine at what rate these might be reinstated.

In the meantime, forfeiture of release credits and placement in class three time do negatively impact a prisoner’s release eligibility date. In simple terms, a person being released on his earned release credit date, which totals precisely 85.7% of the sentence, minus any jail credit days which may have been awarded at time of sentencing, falls into one of two categories. The person either maintained a spotless record or is someone who has had disciplinary problems, but who has redeemed himself by remaining disciplinary-free for a minimum of 12 months and had credits restored and/or rescinded. For those others whom Altman is referring to – the misbehaving prisoner who doesn’t come out of his cell or improve himself – their release eligibility date keeps moving forward beyond their 85.7% date. Some really badly behaved prisoners can end up serving the full number of years imposed.  Beyond that, even if Altman’s example guy served his full 10 years in prison, he still must serve the equivalent of 15% of the imposed sentence on community supervision, once released. In short, truth-in-sentencing certainly does provide incentives to perform well and behave in prosocial ways while incarcerated.

For those convicted of possession of limited amounts of illegal drugs, they can earn release credits at a faster rate than others, creating the opportunity for them to serve roughly 70% of an imposed sentence, rather than 85.7%. However, in order to be released at the 70% mark the prisoner must have met all criteria, including completion of a major rehabilitative program and not having lost credit days due to major disciplinary infractions. 

What we need to be focusing on in Arizona’s criminal code are the length of sentences we issue in the first place, especially for non-dangerous or substance abuse-related crimes. We need to focus on laws that require stacking sentences on top of each other (consecutively) in some cases. We need to implement much more diversion in our court system and allow judges to have the discretion to divert many more people from prison. Reinstating parole has benefits because it requires an independent review of the prisoner’s suitability for release by a sole and separate agency from the prison – the Board of Executive Clemency.  However,  increasing the rate at which some non-violent offenders are allowed to earn release credits is the easiest way to reduce the amount of time that motivated, well-behaved and serious prisoners spend in secure confinement. 

The reality is that legislators, lobbyists and all other stakeholders, including victims, must commit first to truly understanding our complex criminal code and all of its ancillary but intertwined applications before attempting to “improve” it with change. The key word in the phrase earned release credits is:  earned.  Prisoners must earn release credits in order to be released at 85.7% of the imposed sentence.

Donna Hamm is executive director of Middle Ground Prison Reform in Tempe.