A lingering “tough-on-crime” mentality in Arizona is hampering efforts to reconstruct the state’s criminal justice system.
Several measures introduced this session address fines, fees and probation, but affording more discretion to courts during sentencing and eliminating mandatory minimums has eluded those pushing for a “smart on crime” approach, a buzzword used by a wide range of groups seeking change.
That approach, according to some lawmakers and advocates for change, has been resisted by conservative politicians and prosecutors who have been elected with the help of scare tactics for generations.
Rep. David Stringer, R-Prescott, said though many of his colleagues are interested in discussing changes to the criminal justice system, not all are open to it. After all, he said, Republicans have run on a “tough-on-crime” platform for years.
“There’s resistance to reform and I have to say running on cracking down on crime, tough on crime, these have been Republican issues for a long time. They’ve helped Republicans get elected,” he said. “But I’m distressed that a lot of my colleagues continue to run on this issue.
“Some of them don’t know how to talk any other language.”.
Caroline Isaacs of the American Friends Service Committee, a Quaker group focused on criminal justice reform, said GOP legislators haven’t gotten out in front of the issue because of a “lingering and false belief that this is a political liability.”
Stringer and Isaacs are frustrated with how slow the process has been in Arizona, especially given that more conservative states, like Louisiana, tackled the issue in just one session.
But not everyone believes greater changes are needed.
Maricopa County Attorney Bill Montgomery said Arizona is already ahead of the rest of the country.
On March 16, the Arizona Prosecuting Attorneys’ Advisory Council said in a news release accompanying the 2017 “Prisoners in Arizona” report that the state has been a “front-runner in criminal justice reform” for 20 years.
The report says the state prison population has declined by 1.1 percent since June 2016, “a trend that is (in) sharp contrast to an annual uptick in prison population from July 2012 through April 2016.”
The researchers also determined that the number of first-time offenders incarcerated decreased by 3.3 percent from 2011 to 2017 because of intervention programs to treat drug and alcohol addiction or mental health issues, which Montgomery said prosecutors have championed for years.
Montgomery called other ideas being pushed by the smart-on-crime crowd “pet projects” that are “based on myths and rhetoric.”
“Most of the folks who call criminal justice reform ‘reform’ – all they’re really out to do is arbitrarily adjust sentencing statutes or adjust truth-in-sentencing with no data to support it,” he said.
But advocates for change say those adjustments will make a real impact, and they point to Montgomery and other county attorneys as one reason why the effort has stalled statewide.
Groups all along the political spectrum agree something must be done to improve Arizona’s criminal justice system. But they haven’t yet reached a consensus on what specifically should be done.
Progressive groups, such as the American Civil Liberties Union and American Friends Service Committee, and conservative groups, like Families Against Mandatory Minimums, are calling for changes to the state’s sentencing statutes.
The groups have also called for an end to mandatory minimum sentences, especially for drug offenses.
But Montgomery scoffed at their ideas of “so-called reform,” arguing that they’re trying to overlay other states’ solutions on Arizona.
He said the reality is other states either face different problems or are simply implementing measures Arizona embraced years ago, such as diverting first-time drug offenders to treatment instead of prison.
“And because we weren’t part of the so-called reform wave, we don’t get credit for what we did,”
He said the first step in the public policy conversation must be to define the problem and determine what resources are needed to solve it.
“For so many, and this is what has been a frustration of mine, they don’t understand the problem,” he said.
“We need to come to a common understanding of the criminal environment we actually have, the types of crimes we have to deal with, and then what makes for the most effective policy. … What do we want to define as success for the criminal justice system in Arizona?”
For Montgomery, success would mean reducing recidivism, a goal he shares with Gov. Doug Ducey.
Ducey spokesman Daniel Scarpinato said the governor approaches the issue from a public safety perspective. The governor’s priority, he said, has been to provide people who have already served their time with opportunities to get back on their feet by helping them get jobs, government benefits, and treatment.
Those efforts, Scarpinato said, will help reduce recidivism rates and the state’s prison population, while still “making sure we’re enforcing the rule of law and still being tough on crime.”
Montgomery also said he wants more punitive sanctions in place for drug traffickers to deter them.
And on that point, his views and those of change advocates, like the ACLU’s Will Gaona, could not be more different.
According to the Arizona Prosecuting Attorneys’ Advisory Council’s updated Prisoners in Arizona report, 84 percent of state prisoners are repeat offenders.
Gaona said it “demonstrates the failure of our criminal justice system” – those offenders knew they could go back to prison, yet that didn’t stop them from committing new crimes.
“Obviously, this is not an effective intervention, and we’re just going to try it again for longer periods of time for something that has already been demonstrated not to work,” he said.
Lawmakers introduced more than a dozen bills this session seeking to improve the criminal justice system. Few of them, however, went anywhere in the legislative process.
For example, Stringer introduced HB2303 seeking to reduce the penalties for possession of substances such as marijuana, heroin and cocaine, from felonies to misdemeanors. It would have also expanded the list of mitigating factors considered at sentencing to include documented mental illness, addiction, trauma resulting from military service and victimization.
Several bills introduced in both chambers, like HB2621 by Rep. Tony Rivero, R-Peoria, or SB1094 from Sen. Martin Quezada, D-Glendale, sought to address the expungement or sealing of criminal records.
None received a committee hearing.
Other bills were more successful.
Right on Crime, a campaign affiliated with a conservative Texas think tank, introduced a package of five bills this session that among other things, seeks to give the courts greater discretion to impose alternative sanctions, like community restitution, rather than hefty fines or prison time. It also seeks to establish a list of factors the court must consider when vacating and setting aside convictions, and makes administrative fixes to the intensive probation program.
Though a similar package of bills was introduced in 2017, the effort failed after Rep. Eddie Farnsworth, R-Gilbert, refused to hear the legislation in the House Judiciary Committee.
This session, nearly all of the bills, which were written and vetted by the Arizona Supreme Court’s Task Force on Fair Justice for All, were unanimously approved by the House and have faced relatively little opposition in the Senate.
As Right on Crime Director Kurt Altman, sees it, the bills have been successful so far because they seek to halt unfair penalties on the poor and reduce recidivism, ideas he thinks the GOP and Ducey can get behind.
Altman, a former county and federal prosecutor whose practice now includes criminal defense, said while the measures don’t make any major changes to the state’s sentencing statutes, they’re still effective.
Large-scale changes to the criminal justice system, such as changes to sentencing laws, will take more time and buy-in, he said.
“It’s part of the long-term process,” he said. “Are we there yet in Arizona? Probably not. But we’re trying to get there.”
That may be easier said than done.
Advocates have highlighted that there’s still a strong resistance from prosecutors, like Montgomery, who might stand to lose some power if more moderate measures successfully move through the Legislature.
Stringer said one of the problems he has faced is that despite proposing what he called “modest reforms,” he said there is still “tremendous resistance.”
“Some of the prosecutors are very, very adamantly against it because the current system gives prosecutors a tremendous amount of discretion,” he said.
He declined to name which prosecutors are opposed to making greater changes.
Gaona said like in other conservative states, elected prosecutors are working to derail efforts to improve the criminal justice system. In Arizona, he said, the biggest obstacle is Montgomery.
“Prosecutors take issue with criminal justice reform because it often reduces the power that they hold.” he said. “Looking at just his actions, it’s pretty clear that he’s an opponent to reform.”
He said Montgomery drastically amended one of the Fair Justice for All bills, HB2312, which establishes factors the court must consider when determining whether to set aside a conviction, despite having helped draft the original bill.
The original language of the bill, Gaona said, would have led to “real second chances,” and would have helped reduce recidivism by giving ex-offenders the opportunity to have their criminal records sealed.
Gaona said Montgomery’s office is also a proponent of a bill that would create new mandatory minimums for heroin and fentanyl possession – despite touting in public that Arizona “doesn’t incarcerate low-level drug offenders.”
But he pointed out that the state has already tried that with methamphetamine, and Gaona said the Arizona Prosecuting Attorneys’ Advisory Council’s own report seems to suggest that has not been successful in preventing trafficking.
The report indicates that three of the top six offenses for which people are incarcerated are drug related.
At the same time, during a roundtable presentation of the report, Montgomery noted the amount of methamphetamine seized near the border has increased. Increasing amounts of heroin and fentanyl are also trafficked through Arizona.
And Montgomery says tougher sentencing laws are the answer.
Yet the data says otherwise, Gaona said. More people have been incarcerated for related offenses, according to the data, but the amount of drugs trafficked hasn’t been negatively impacted.
Gaona said that indicates to him that drugs continue to be a major driver of incarceration.
Montgomery rejected any suggestion that he and his fellow prosecutors have been standing in the way, calling that “nonsense.”
“I really believe that those who keep pushing that narrative do so because they can’t accept the fact that their ideas are bad,” he said.
If prosecutors had control over the process, he added, drastic changes to Arizona’s asset forfeiture laws never would have passed last session.
Farnsworth’s HB2477 increased the standard of evidence required for authorities to seize property and strengthened reporting requirements. It was nearly universally opposed by law enforcement.
Montgomery argued this is simply what the public policy process looks like – “like making sausage.”
“Prosecutors don’t have a vote at the Legislature,” he said. “We don’t sit on committees. We don’t sponsor bills. We don’t get to vote on the floor. They want to say that there’s a wall. There’s not a wall. It’s a gate. And it’s a gate that requires careful analysis and review because we can’t gamble on public safety.”