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Changes to criminal code must be intelligent, informed and incremental


The current legislative session was supposed to be the “criminal justice reform” session that many have hoped would occur for decades. Indeed, many creative and passionate ideas were incorporated into bills, including assisting persons with felonies to expunge records; assisting females to maintain contact with their children while incarcerated; advancing the process for restoration of civil and even gun rights; proposals to increase earned release credits for drug offenders if they obtained relevant treatment programs, and others. Some of these bills have not received hearings.  Others have.  One bill, HB 2270, proposes sweeping changes to almost all categories of crimes listed in the criminal code which has been in effect since January 1, 1994.

Donna Leone Hamm

Donna Leone Hamm

In 1993, I participated with a stakeholder committee that discussed proposed changes in the then-current criminal code. Many stakeholders participated, including prosecutors, victim’s rights representatives, defense attorneys, prison administrators, law enforcement, judges and legislators. Some proposals were ones we at Middle Ground Prison Reform could support and some were ones we opposed. The Governor’s office was also represented and indicated his support for sentencing reform. One major incentive for consideration of and adoption of the 1994 criminal code was an opportunity to secure federal monies available to states agreeing to modify their criminal code to require that violent offenders spend at least 85 percent of their imposed sentence in prison. It was referred to as “truth in sentencing,” and touted as a way to allow victims and the public to feel a sense of security and comfort in knowing exactly how much time a sentenced prisoner would actually spend behind bars. Arizona went a step beyond the parameters required by Congress to obtain the monetary incentives and passed a criminal code requiring all sentenced prisoners – violent and non-violent alike – to serve a minimum of 85 percent. However, we still retained an older statute which allowed some non-violent offenders to qualify for “temporary release” up to 90 days in advance of their otherwise earliest release eligibility date. Later, the Legislature passed a “transition release” statute, which also provided for a release up to 90 days in advance of earliest release eligibility. In total, as currently in law, a qualifying prisoner can participate in both early release programs for a total of 180 days of early release, prior to reaching their 85 percent date.

HB 2270, which has one lone sponsor, a new legislator from an outlying county, proposes to change sentencing laws to permit the service of  85 percent of an imposed sentence  for persons convicted of dangerous crimes against children; 75 percent for those convicted of dangerous crimes; and 50 percent for those convicted of all other crimes. There is no provision for consideration of repetitive offenders. There is no requirement in the bill for completion of crime-related programming. The single thing required to earn all release credits offered is for an inmate to avoid major disciplinary infractions which result in the forfeiture of earned release credit days, thereby extending the prisoner’s release eligibility date into the future. There is no independent review of the release plan by the Board of Executive Clemency, nor a requirement for a dangerous or other offender to express genuine remorse or acceptance of responsibility for his actions. The bill is not retroactive because it does not contain the required statutory language to make it so. There has never been a criminal code in Arizona which allowed automatic release at 50 percent or 66 percent of the imposed sentence without first being granted parole. The bill did not receive a hearing in any assigned committee.

Sentencing reform is complex and multi-layered. It must include all stakeholders in the process. Not everyone will get what they want. Not all wrongs will be righted. The 2019 session does include some modest reform proposals and it is prudent to examine how well they work if they pass. Importantly, public safety must be at the forefront of all reforms and not just a desire to comport Arizona laws with what other states are doing. Incremental changes are far more likely to succeed than sweeping, revolutionary changes. We support any effort to make intelligent, informed and incremental changes in the criminal code.

Donna Leone Hamm is director of Middle Ground Prison Reform.

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