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Drug sentencing in Arizona – reality versus rhetoric


Arizona has been a treatment-first state since 1996, reflected by the fact that Arizona law precludes prison for the first two drug use or possession offenses, and while methamphetamine is exempted from mandatory treatment, meth possession/use is regularly incorporated into diversion or probation options for treatment, not prison.

The American Friends Service Committee’s (AFSC) recent report, “Drug Sentencing in Arizona:  A Prescription for Failure,” relies upon faulty analysis and inadequate research to inaccurately depict Arizona as an incarceration-first state, and blames our sentencing statutes for our substance abuse problems. Arizona’s sentencing statutes are not responsible for our substance abuse problems. People abusing drugs, both prescription and illicit, are the real reason for our substance abuse problems.


Bill Montgomery

It is true that in Arizona, like every other state in the Union, substance abuse is a problem that calls for our attention and collective commitment. The Maricopa County Attorney’s Office, like other law enforcement agencies, knows this because every day we see the harm that substance abuse causes to individuals, families, and communities. We regularly work with community treatment providers, fellow stakeholders, and law enforcement to distinguish between drug motivated crime arising from addiction and crimes associated with the drug trade. Unfortunately, by accident or design, the AFSC report made no mention of these efforts.

Contrary to the false picture painted by the AFSC’s report, Arizona does not incarcerate people solely for possessing and using legal and illegal drugs where “mere residue” is present. The legal standard for prosecutions is that there must be a “usable amount” of drugs present. In reality, Arizona’s sentencing statutes are effective, and the composition of our prison population, as documented in multiple studies since 2010, proves it: over 95 percent of inmates are violent or repeat offenders. That is based on convictions, not subjective analysis.

AFSC’s report, which cites data published monthly by the Arizona Department of Corrections, conflates drug possession with drug trafficking and sales to claim that “21.8 percent of those in prison in 2016 were serving time for a drug related crime as their most serious charge” and proposes that reducing drug possession offenses to misdemeanors will significantly reduce the prison population. The claim and conclusion deliberately ignore the fact that drug trafficking and sales offenses make up almost two-thirds of this category. That, in turn, is reflective of the fact that Arizona is the main thoroughfare for drug smuggling into the United States. Until the issue of control of our border is resolved, changing the nature of a drug possession offense is not going to impact sentencing for drug trafficking and sales.

The AFSC report also inflates the impact of drug crimes on the prison population by using the broad term of “drug related crime.” To put this in proper context, if we categorized violent offenses the same way, violent crimes are actually the largest category of committed offenses at over 31 percent. Overall, the ADC data consistently reflects that approximately 73 percent of prisoners committed violent crimes. Given this data, the report very generously assumes that “drug related crime” is non-violent, which is another serious error due to the fact that drug trafficking and sales offenses often involve weapons and are a scenario often seen in homicides.

The 1,261 drug cases that the report relies upon highlight other significant flaws in the study. The cases selected excluded any cases that resulted in diversion, deferred prosecution, probation, or a misdemeanor conviction. Additionally, the authors did not consider the severity of the charge or the prior criminal history of the defendants. References to the most serious charges filed in Maricopa County failed to take into account the most current data for 2016, which reflects only three out of the top 10 charges are drug based.

After creating a false picture of Arizona’s criminal justice system and prisons with respect to drug offenses, the report would like taxpayers to believe that reducing drug offenses to misdemeanors would save $588,000 per day. That assumes then that all criminal conduct related to drug use would also cease. But that conclusion would be just as flawed as the others.

Despite these serious flaws, their report does raise some valid points. One is the need for reliable and consistent data for our criminal justice system. Secondly, the report accurately states that 77 percent of prisoners leave prison with a substance abuse issue, and only 3 percent receive substance abuse treatment while incarcerated. This is an area we must improve by providing substance abuse treatment from the point of admission through reentry, along with cognitive behavioral therapy, because such treatments can significantly reduce a prisoner’s risk of recidivism and that is the ultimate goal we can all unite behind.

While the AFSC report erroneously states Arizona’s recidivism rate is 49 percent over an undefined period of time, reliable data reflects that three years after release it is roughly 40 percent. Whether 49 percent or 40 percent, this is a metric we can and should incorporate into assessing the effectiveness of current programs and services and for weighing the impact of proposals to improve criminal justice system outcomes. Public safety is too important to base policy choices on poor research and equally poor conclusions.

Bill Montgomery has been the Maricopa County attorney since 2010.       


The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.


  1. Every time Mr. Montgomery addresses the so-called “war on drugs” I am amazed that someone who purports to support the Constitution cannot see how blatantly unconstitutional this “war” is.

    All political power is inherent in the people (AZ Constitution, Art 2, Sec 2). The people convey authority to government through their Constitution. Government has no authority other than that granted to it by the people (U.S. Supreme Court, McCulloch v. Maryland, 17 U.S. 316). The people have never granted the state or federal governments the authority to regulate what we can or cannot put into our own bodies.

    The artificial construct of a “compelling public interest” can never trump the written contract the people have with their government.

  2. Wow, Mr. Montgomery is wrong on so many points. I first thought that he was simply a retired person without information, but with a clear prejudice. Then I noticed that he is the Maricopa County Atty. That explains it. Of course he would say what he says. He believes it. Problem is, pundits in the field don’t agree with him.

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