By Howard Fischer
Twitter: @azcapmedia

PHOENIX — Some erroneous words used by judges a quarter century ago could result in the possibility of release of nearly 300 people who the law said should have been incarcerated for the rest of their lives.

In a ruling Thursday, the Arizona Supreme Court acknowledged that a 1993 law eliminated the possibility of parole for any crimes committed after Jan. 1, 1994. And that, legally speaking, should have resulted in Abelardo Chaparro being imprisoned for life for a murder he committed in May 1995.

Only thing is, the judge sentenced Mr. Chaparro to “life without the possibility of parole for 25 years.”

Justice James Beene, writing for the unanimous Supreme Court, said that was legally wrong.

But Mr. Beene pointed out that neither the prosecutor nor the defense attorney pointed that out at the time.

Now, he said, it’s too late. And what that means, Mr. Beene said, is that Mr. Chaparro is now eligible to seek parole.

Technically speaking, Thursday’s ruling affects only Mr. Chaparro who challenged the refusal of the Department of Corrections to consider him for parole.

But in legal papers filed with the court, that agency declared there are “approximately 290 inmates that may have sentences similar to Mr. Chaparro.” And they can now use the precedent set in this case to seek their own parole eligibility.

Drew Ensign, the state’s deputy solicitor general, conceded to the court that there is no question but that the law was changed and parole was no longer an option.

“But like the proverbial tree falling in a forest, many failed to notice,” he wrote.

“Specifically, sentencing judges, prosecutors, and likely many defense attorneys all failed to account for the Legislature’s express and unequivocal abolition of parole,” Mr. Ensign said. “A few hundred times.”

Nothing in Thursday’s order guarantees that Mr. Chaparro — or any of the other perhaps 290 affected inmates — actually will be freed. Instead, it allows them to try to convince the Board of Executive Clemency that they will be able to “remain at liberty without violating the law and that the release is in the best interests of the state.”

But they now have the ability to try to make that case.

There was no immediate response from the Department of Corrections.

The facts are not in dispute.

Mr. Chaparro originally was sentenced to “natural life,” which would preclude the possibility of parole. But in a subsequent order, the judge removed the word “natural” and clarifies that the sentence was “life without possibility of parole for 25 years.”

Mr. Beene rejected arguments that the trial judge failed to understand what he was doing. He pointed out that, during sentencing, the trial judge told Mr. Chaparro that there were three sentencing options: death, life in prison until death, and life without the possibility of parole for 25 years.

Both sides also agree that the sentence imposed was “illegally lenient” because it violated the 1993 law. What that means, the Attorney General’s Office argued, is that the court cannot enforce it.

Mr. Beene disagreed.

“Illegally lenient sentences are final under Arizona law absent timely appeal or post-judgment motion,” he wrote.

One one was not made, Mr. Beene said, meaning “his illegally lenient sentence is final under Arizona law.”

What all that leaves is who else might get a chance at release.

In arguments to the court, Mr. Ensign said this case “arises from an unfortunate chapter in the history of the Arizona criminal justice system.”

Sentences allowing parole were imposed despite the fact the law was changed. But he argued that those sentences are legally void as contrary to “the Legislature’s explicit abolishment of parole eligibility.”

The high court disagreed, saying any challenge now comes too late.

Mr. Ensign also argued that trial judges who handed down sentences with the possibility of parole were unconstitutionally intruding on the turf of lawmakers who have the exclusive power to determine if parole is an option. But Mr. Beene said that, strictly speaking, the judges did no such thing.

“Rather than perform a legislative function, the trial court misapplied the law when it conferred parole eligibility,” he wrote.

“Therefore, the trial court did not violate separation of powers by including, albeit incorrectly, parole eligibility in its sentenced order, nor does this court do so by upholding that sentence, which the state failed to appeal,” Mr. Beene continued. “Absent a timely appeal, the illegally lenient sentence must stand.”

The Legislature has since restored the option of parole for those who were sentenced pursuant to a plea deal with such a stipulation, and that deal spelled out how many years the person would first have to serve.