Prosecutors’ honor questioned as criminal justice measures die

Arizona lawmakers stymied this year in their quests to revamp the criminal justice system are re-evaluating how to work with prosecutors next year after what some described as an 11th-hour betrayal.

The session began with high hopes from lawmakers across the political spectrum that this would be the year Arizona passed what they say is substantive justice reform. It ended in a fizzle, with only two bills alive near the end of the 134-day session. One, which will let some drug offenders out of prison early, is now law. Gov. Doug Ducey vetoed the other, SB 1334, which aimed to stop prosecutors from using enhanced sentences intended for repeat offenders on people who don’t have previous convictions.

The vetoed bill’s main sponsors, Rep. Ben Toma, R-Peoria, and Sen. J.D. Mesnard, R-Chandler, adopted language from one prosecutor, Yavapai County Attorney Sheila Polk, that still would have allowed prosecutors to use enhanced sentences for people who’ve never before been convicted. They gave up on requiring the court system to collect and report data on plea deals and sentencing.

“My side of things moved a lot,” Mesnard said. “We scaled this bill down a lot.”

Supporters of the bill made all of those changes because of a promise that county attorneys would at least accept the legislation, even if they weren’t fully on board. Instead, the top prosecutors in Arizona’s largest counties turned around and lobbied Ducey to veto it.

“The problem when someone doesn’t keep their word is that you can’t trust them anymore,” Toma said. “I don’t know where we go from here if someone has no honor.”

Gatekeepers

While revamping criminal justice is widely supported by the Legislature as a whole — the few bills lawmakers were able to vote on passed on overwhelming margins — most legislation dealing with it had a difficult time moving forward this session.

Advocates for change were dealt their first blow before the session even started, when House Speaker Rusty Bowers dissolved the Sentencing and Recidivism Reform Committee that then-Rep. David Stringer, R-Prescott, was slated to chair. That meant criminal justice legislation in the House headed instead to the House Judiciary Committee, where they received a colder reception from Chairman John Allen, R-Scottsdale, than they would have from Stringer.

Allen’s committee never heard bills, many sponsored by fellow Republicans, that would have let inmates reduce their sentences by going through treatment programs, allowed judges discretion in sentencing and reduced penalties for possessing a small amount of marijuana, among other things.

Toma’s bill regarding repetitive offenders was one of the few that made it out of the House Judiciary Committee, and it passed the House on a 57-2 vote. But it ran into another committee gatekeeper in Senate: Judiciary Chairman Eddie Farnsworth, R-Gilbert, who prides himself on killing “bad bills.”

Toma found an ally in Mesnard, who said enhanced sentences make the most sense for someone who commits a crime, serves his sentence and then commits another crime, proving he hasn’t learned his lesson from the first sentence.

“We want a justice system that really is based on justice,” Mesnard said.

And Mesnard said he wanted to see more data collected on how prosecutors use the ability to charge people with crimes that carry enhanced sentences. A frustrating aspect of working on criminal justice reform is hearing conflicting descriptions of what’s happening in the justice system, he said.

Advocates for changing sentencing guidelines, including criminal defense attorneys, say prosecutors use mandatory minimum sentences like those included in the state’s repetitive offender statutes as a cudgel to force plea deals.

Pima County Public Defender Joel Feinman said defendants facing long sentences often feel pressured to take plea deals that can result in years in prison.

“The biggest problem is that it works in conjunction with the prosecutors’ complete control over plea agreements to exert a tremendous amount of pressure on the defendant to take pleas that are not very good,” Feinman said. “I have had clients who I believe were innocent who went to jail, went to prison because they didn’t want to run the risk of going to trial.”

Bad Faith

Prosecutors including Maricopa County Attorney Bill Montgomery and Pima County Attorney Barbara LaWall, meanwhile, say that mandatory minimum sentencing is the best way to deter repeat offenders.

In an email, La Wall said: “We (my office and AZ’s prosecutors) lobbied against SB 1334 and when it passed, we subsequently requested the Governor to veto this bill because it was highly problematic and created a number of significant unintended consequences that would adversely impact the safety of Pima County and other Arizona communities.”

In a letter the two sent to Ducey that LaWall shared with the Arizona Capitol Times, they said the bill “creates a strong incentive for repeat offenders to commit as many crimes as they can before being caught because regardless of the number of people or businesses they victimize, whether two or 20, SB 1334 requires them to be sentenced as a first-time offender for each count.”

Mesnard dismissed that argument as illogical. People who commit multiple crimes face longer sentences than people who just commit one crime, even without enhanced sentences.

“A person who commits Crime A gets Sentence B,” he said. “A person who commits Crime A 10 times will get Sentence B 10 times.”

And while Mesnard said he plans to continue talking with prosecutors, particularly Montgomery, while working on criminal justice issues in future sessions, other lawmakers are frustrated by the two prosecutors fighting against the bill.

“Others may feel that negotiations happened in bad faith or poisoned the well,” Mesnard said. “Others have expressed a sentiment that if we can’t get something this narrow passed, it will be a bleak three years.”

Rep. Walter Blackman, R-Snowflake, is among them. Blackman said he turned down the National Republican Congressional Committee when it asked him to run this spring because he still wants to work on criminal justice reform.

He saw SB 1334 as an “incremental step forward” toward the comprehensive justice reform he seeks, which aims to reduce the number of people entering the prison system and provide opportunities for those already incarcerated to integrate back into society.

Blackman plans to spend this summer working on improving his HB 2270, which would have allowed prisoners who complete education or self-improvement programs to be released earlier. It died without a committee hearing. He said the late death of SB 1334 is a disheartening sign for the future of his legislation.

“I didn’t know that there were backroom deals for them to go back and change what we had agreed to,” he said. “It’s disheartening to know that is what’s lying ahead of me and others’ efforts to pass criminal justice reform.”

Prosecutors who opposed the sentencing bill should be prepared to see something pass next year,  Mesnard said. He noted that the bill had broad support in the Legislature — only three of the 90 legislators voted against it — and opponents could learn from the 2017 passage of a law altering the state’s civil asset forfeiture laws.

Prosecutors decried that bill, which took away some of their leeway to seize property from people suspected of, but not charged with, crimes. However, after prosecutors were able to kill it in 2015, the bill passed both chambers on overwhelming margins in 2017 and was supported by groups across the political spectrum, as this year’s repetitive offenders bill was.

“Folks who are opposed need to be careful that they don’t end up drawing too hard a line in the sand or rely on the governor’s veto,” Mesnard said.