Begging Your Pardon

Fife Symington's free and Michael Hester's not. But thanks to the ex-governor's oversight, that may soon change.

-- Fife Symington, in a July 1995 opinion piece written for a Phoenix newspaper

Arizona was undergoing a sea change in its criminal-justice system during the early 1990s. Backed by Fife Symington, the Arizona Legislature had enacted new laws that called for inmates convicted after January 1, 1994, to serve at least 85 percent of their sentences. That contrasted with the so-called "soft" time -- half or two-thirds of imposed sentences -- that many inmates had been serving.

The Arizona Legislature knew the new laws meant most prisoners would be serving more time, and reduced the length of sentences for some crimes, primarily those considered "nonviolent." In that vein, the law no longer allowed prosecutors to seek "kingpin" penalties unless someone had sold more than a specified amount of cocaine.

Mike Hester took the governor's rejection to U.S. District Court.
Mike Hester took the governor's rejection to U.S. District Court.

The sum of Mike Hester's two crack sales to the undercover cop wouldn't have met the new "threshold amounts."

Truth was, if Hester had been charged in 1994, he wouldn't have been sentenced to life in prison. Instead, he would have faced about nine years, precisely what the clemency board recommended to Symington in 1995.

The unfairness of cases such as Hester's struck many legislators. To that end, the lawmakers sought to level the playing field. They convened a study committee of police officers, attorneys, corrections officials, judges and a former governor (Raul Castro), whose mission was to figure out a way to do that.

Says Dave Derickson, a Phoenix attorney and former Superior Court judge, "We basically did away with the [enhancement punishment] laws, and we did a lot of talking about the small-fry crack dealers -- generally young black men -- who were getting long terms. Even the prosecutors on the committee started to see that the laws as they were being used were racially discriminatory."

Committee member Ron Reinstein recalls "the most compelling stories we heard on the committee were about those small-time drug abusers and dealers who were getting the book thrown at them. We talked about that a lot."

The committee devised a plan, which would become law: Let the clemency board review the sentences of certain inmates sentenced before December 31, 1993. The board could suggest commutation of an inmate's sentence, and the governor would have the final say.

The new law stipulated that Symington would have 90 days to accept or reject unanimous recommendations from his board. If the governor didn't do anything, the board's recommendations automatically would take effect.

"We put in that 90-day rule because the granting of commutations could be potentially embarrassing for the governor," says current board member Duane Belcher Sr., who also served on the study committee. "We saw that armed robbers and murderers were walking around the street, while many minor-league druggies were serving life sentences. We weren't asking the governor to release everyone, just to make things fairer. Things definitely needed fixing."

Prisoners who applied for review with the board had to have been convicted at trial -- no plea bargains were reviewed. Most violent criminals, and those who had committed "dangerous" crimes against children wouldn't qualify, though some so-called "nonviolent" child abusers could be considered. The reviews were to be completed by the end of 1995.

About 2,400 inmates, including Mike Hester, filed applications with the eight-person board. In the first phase, the board determined whether an inmate's sentence was "clearly excessive" compared with similar crimes committed under the new laws. If so, the board would meet with that inmate, after which it would make a recommendation to Symington, or simply deny the application.

About 1,500 cases passed the first phase. The second phase was more rigorous, as the board considered, among other things, whether a given inmate had a "substantial probability" of staying straight after being freed. That's always a crapshoot, and clemency boards usually err on the side of caution.

And no one could accuse this panel of being liberal: It consisted of longtime corrections officials, a career cop and ex-lawmakers with impeccably conservative credentials, such as Stan Turley -- a Symington appointee who served 22 years in the Arizona Legislature, including stints as Speaker of the House and President of the Senate.

The clemency board held hearing after hearing for months, often working well into the night. Of the 1,500 inmates who made it to the second phase, the board would send 216 recommendations to Symington for possible commutation of sentence. Hester earned one of the unanimous recommendations.

Mike Hester appeared before the clemency board on March 7, 1995. Kathryn Brown, a longtime Department of Corrections supervisor, asked him why his sentence should be commuted.

Hester said he'd been represented poorly at his criminal trial, and still was trying to prove his innocence. He told the panel he'd completed paralegal training by mail, and was helping other inmates with their appeals.

"I have made every attempt that I can to adjust to what has been done to me," he said calmly. "I'm not trying to minimize my offense. I realize that being involved with drugs is wrong."

But why should we recommend commutation, Brown persisted.

"Why should it happen? Because it was basically unfair. It was disproportionate to other sentences around the country -- and it has been considered by the Legislature to be wrong."

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