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Long Arm of the Law 

County attorneys lobbied to block criminal justice reform during this year’s legislative session

State Rep. Kristen Engel of Tucson said that when it came to criminal justice reform, “county prosecutors were essentially calling the shots here.”

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State Rep. Kristen Engel of Tucson said that when it came to criminal justice reform, “county prosecutors were essentially calling the shots here.”

The cycle repeated itself time and time again. Legislators proposed bills that would create meaningful reform in Arizona's criminal justice system. Then, they worked alongside county prosecutor groups who modified and watered down the impact of those bills. Then, the watered-down bills entered the committee process and drowned to their sad deaths, one way or another.

In the end, state legislators closed out the session this year passing just one criminal justice reform bill into law. All the while, Arizona maintains the fourth-highest incarceration rate per capita in the world, and spends $1.1 billion annually to lock up 42,000 individuals.

Advocates for criminal justice reform entered this year's legislative session energized and hopeful for some real change. Eleven out of the 17 criminal justice reform bills introduced this year had Republican sponsors—an unprecedented show of bipartisan support.

"All the work that we and other members of the coalition have been doing for so long in terms of having this bipartisan consensus and talking to legislators and doing the incremental thing for years really paid off," said Caroline Isaacs, program director with the American Friends Service Committee of Arizona. "There's a lot more buy-in from the majority party."

So why do these bills keep dying? One answer can be found within the timeline of SB 1334.

Introduced this session by Sen. JD Mesnard (R-Chandler), SB 1334 intended to bar prosecutors from labeling someone as a repeat offender if none of their crimes are felonies. Jared Keenan, a criminal justice staff attorney with the American Civil Liberties Union, said this is common policy nationwide, and the passage of the bill would have put Arizona in line with every other state.

Proponents say it protects individuals from facing the long prison sentences that come with the "repeat offender" distinction, which prosecutors often use to persuade defendants into plea deals. Those who commit multiple crimes often have their sentences stacked, so the sentence is already appropriate to the number of crimes committed.

"We're the only state that has this weird enhancement, and it can increase somebody's time in prison by three, four or five times," said Rebecca Fealk with AFSC.

It originated as a House bill, but because Senate Judiciary Committee Chair Eddie Farnsworth (R-Gilbert) refused to hear it, lawmakers used a strike-all amendment to tack the substance of the original House bill and put it into a Senate bill that had already gone through the committee process so it could pass out of the Senate.

"Some of my Republican colleagues saw the writing on the wall that if they were interested in criminal justice reform, they were going to have to do some procedural maneuvers to get it past the committee chairs in the Senate," said Rep. Kirsten Engel of Tucson.

After the bill was revived in the Senate, lawmakers and criminal justice reform advocates agreed to include amendments from the county attorneys with a promise from the Arizona Association of Counties that the attorneys would remain neutral on the bill.

But on May 29, county attorneys Bill Montgomery and Barbara LaWall penned a letter to Gov. Ducey urging him to veto SB 1334 because it "creates a number of significant unintended consequences that adversely affect the public safety of Arizona citizens."

Despite strong bipartisan support and near unanimous passage in both chambers, SB 1334 died when Ducey vetoed it.

A spokesperson for the governor told the Weekly Ducey vetoed the bill because it wasn't "good policy," but declined to comment on whether the attorneys' letter was influential in the decision. In Gov. Ducey's veto letter, he said he was concerned with the "unintended consequences that may arise from this legislation and the effect these changes would have on victims."

"It just re-emphasizes what we've already been saying, that there are these handful of players who are controlling the entire narrative around this," Fealk said of the similar language in Ducey's veto letter and the letter sent by prosecutors.

Amelia Cramer, deputy chief with Pima County Attorney Barbara LaWall's office, said that a slight majority of the Arizona Association of Counties were willing to compromise if the bill was amended, but individual attorneys are able to lobby on their own behalf, which is exactly what LaWall did.

"From the beginning, we thought that (SB 1334) was an ill-advised bill," Cramer said. "County Attorney LaWall is willing to support some sentencing reform, but she opposed that one because repetitive felony offenders who victimize people in the community would be treated as if they were first-time offenders who made a one-time mistake. She maintained that position from the time that bill was introduced through the time it became a striker amendment and through the last-minute amendment process."

But Keenan said having prosecutors lobby against a bill after advocates and lawmakers had worked to address their concerns strikes him as bad faith.

"The sad thing is even when stakeholders are working with prosecutors and agreeing to make amendments to what would be meaningful reform to slightly less meaningful reform, they're still on the back end fighting tooth and nail not to get any of these things passed," Keenan said.

The one bill that was signed into law, SB 1310, was produced by Maricopa County Attorney Bill Montgomery's office and called a "faux attempt at reform" by the ACLU.

The legislation creates an opportunity for inmates to earn time off their sentences if they complete an Arizona Department of Corrections "major life improvement" course. It's only available to individuals serving time for non-violent drug offenses without prior violent crime convictions.

During a hearing for this bill, Karen Hellman, a division director with DOC, admitted to legislators that the department does not have the capacity to provide drug rehabilitation programs to the majority of inmates who need them.

In addition, DOC has a policy that bars inmates from accessing those programs until they're 90 days away from being released, according to AFSC. An inmate serving one year could earn up to 30 percent off their sentence, but a person serving five or more years would still have to serve a majority of their time.

"The problem is not only does (SB 1310) affect only those people with simple drug possession charges, people who shouldn't be in prison in the first place, it also requires them to do this treatment or counseling within DOC and they have said they don't offer these courses in a way that affects enough people for this bill to do anything," Keenan said. "Nor is DOC willing to expand these programs unless they're forced to, and this bill doesn't force them to do anything."

In their annual report via the Arizona Prosecuting Attorneys' Advisory Council, county attorneys claim that 95 percent of inmates in DOC are repeat and/or violent offenders, but the legislation they pushed only applies to low-level drug offenders.

HB 2270, introduced by Rep. Walt Blackman (R-Snowflake), would have allowed non-violent offenders to earn up to 50 percent off their sentences through good behavior and program participation, and up to 35 percent for violent offenders.

This follows the ideology of criminal justice reform, which finds that keeping people in prison for longer amounts of time does not reduce recidivism and makes their transition back into society more difficult. Arizona and Florida are the only two states in the country that require these inmates to serve at least 85 percent of their sentences.

"It was a much bolder attempt at some meaningful reform," Keenan said. "1310 was introduced after that and the ACLU believes it was offered as a way to scuttle 2270, which never got a hearing."

House Judiciary Committee Chair John Allen (R-Scottsdale) refused to put HB 2270 on the agenda, claiming that SB 1310 was moving along in the Senate and covered the same ground, despite an overwhelming show of support for this bill.

Isaacs, with AFSC who helped craft HB 2270, called it a bait-and-switch.

"We were talking to everyone on that committee and we were confident that had it gone to a vote, it would have passed," she said. "So the fact that it was so deliberately blocked from even having a discussion, let alone a vote, is infuriating. It's clearly a violation of the democratic process."

Lots of backlash followed, which forced county attorneys to come to the negotiation table. A few good things came out of that in SB 1310: they included inmates who were also charged with possession of paraphernalia instead of solely drug product, and included an emergency clause in the bill to make the opportunity available to everyone currently sitting in prison, not just newcomers.

But the narrow parameters in SB 1310 made only 80 people in the DOC available for immediate release. A bipartisan group of legislators, including Tucson representatives Kirsten Engel and Domingo DeGrazia, sent a letter to the Arizona Department of Corrections Director Chuck Ryan on June 8 requesting confirmation that those 80 inmates had been released upon the passage of SB 1310 a day earlier.

Ryan responded three days later with a letter stating only 66 inmates met the eligibility requirements upon the department's review.

engel, who serves on the

House Judiciary Committee, says the state's county attorneys—specifically Montgomery, LaWall and Polk—have a great deal of influence over criminal justice bills in the Arizona legislature and the two powerful judiciary chairmen, Allen and Farnsworth, act as a barrier to any meaningful reform.

House Bill 2362 was an expungement bill that would allow formerly incarcerated individuals to have their crimes wiped from public record after demonstrating good behavior, which has been introduced in the Arizona legislature for years with no luck yet. Allen refused to put it on the committee's agenda.

House Bill 2424 would have allowed someone with a Class 6 undesignated felony to have their record display a misdemeanor as long as they complete their program requirements. This is important because a felony affects a person's voting rights, job applications, student financial aid and more.

Despite Yavapai County Attorney Sheila Polk getting an amendment put in that says the court "may" instead of "shall" treat the crime as a misdemeanor, both she and Montgomery opposed the bill, so it was killed by Farnsworth in the Senate Judiciary Committee.

"I think he refused to hear any reform bills," Engel said of Farnsworth. "And we do have evidence that they were in close contact with the county prosecutors which leads me to believe that the county prosecutors were essentially calling the shots here."

In March, House Speaker Rusty Bowers told his colleagues he crafted his criminal justice bill in a way that was acceptable to Montgomery, the Maricopa County Attorney, because "I understand what a marriage takes, and I want to stay married."

"County attorneys like to say that they don't write the law, they just enforce it," said Keenan, who previously worked as a public defender in Yavapai County. "It's simply not true, at least not in Arizona. They are active at the legislature getting bills killed that they want killed and pushing other bills."

He believes Arizona is quickly becoming an outlier among the 50 states for its inability to pass real reform in the criminal justice system. Other states with high incarceration rates like Texas and Mississippi have passed sentencing reform in recent years.

"Lots of studies suggest that one of the main indicators that someone is going to go to prison is if they've been there before, so prison is clearly not working," Keenan said. "We're just warehousing people, not allowing them to be productive citizens, breaking up communities, breaking up families, so not only is there this huge financial cost to it, but there's a huge human cost to it as well."

Despite the losses sustained this year at the legislature, criminal justice reform activists are still confident about next year's session, now that constituents are starting to ask questions about the obstructionist tactics at play.

"We as voters in Arizona have the power to adjust these things," Fealk said. "So paying attention to your county attorney elections is so important, and I think people are starting to see this." ■

More by Kathleen B. Kunz

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