Carlos Hernandez is currently incarcerated in an Arizona (private) prison. He pleaded guilty earlier this year to one count of possession of dangerous drugs and was sentenced to a term of 2.5 years. According to a complaint filed this week in Maricopa County Superior Court, Hernandez says the Arizona Department of Corrections is violating his rights by refusing to give him release credits to which he says he is entitled.
Prisoner Release Credits under Arizona Law
The law governing release credits for prisoners is governed by A.R.S. 41-1604.07. That law was amended in 2019 by SB 1310 to expand the credits to which prisoners may be entitled. Under the amendment, three days may be shaved off a sentence for every seven days served in prison. The amendment does not, however, apply to all prisoners. To obtain the higher number of release credits, the statute contains a number of requirements.
- Offenses Covered. The 2019 release credit law applies only to persons convicted of drug possession. This includes possession of marijuana, dangerous drugs, narcotics, and drug paraphernalia.
- Prison Programs. The prisoner must have completed successfully either a drug treatment program or a major self-improvement program while he was in prison.
- Past Criminal History. You are not eligible under the release credit law if you have a prior conviction for a “violent or aggravated felony” defined under A.R.S. 13-706.
Hernandez in his complaint states that he meets or is in the process of meeting all the requirements, yet the state is nevertheless denying him eligibility. In a letter written to Hernandez by a representative of ADOC, the representative states that Hernandez is ineligible because he has a prior conviction for aggravated assault, and that any aggravated assault charge is grounds for ineligibility.
Ineligibility under SB 1310
Hernandez admits that in 2005 he was convicted of aggravated assault. The ADOC letter takes a firm stand on the claim that any aggravated assault conviction renders the inmate ineligible for credits under SB 1310. The fact is that this is simply wrong and ignores the plain language of the law.
Under A.R.S. 41-1604.07, only certain past convictions render an inmate ineligible. They include only violent or aggravated felonies “as defined in A.R.S. 13-706.” That section includes 11 different types of aggravated assault. Of the 11 types, only two are included in the disqualification language of SB 1310. They are aggravated assault which (1) causes serious physical injury to another, or (2) involves the use of a dangerous instrument or a deadly weapon. Since Hernandez claims neither of the two apply to his aggravated assault conviction, he is entitled to the credits.
As noted above, the complaint was just filed. We’ll await the response by ADOC.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028