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Sentencing reform veto shows how prosecutors perpetuate injustice


If you want to know why Arizona remains a world leader in sending people to prison, why the state keeps dumping billions of dollars into a shoddy and barbaric prison system that causes untold human suffering – not just for those who are imprisoned, but for their families and communities – then you need to know the story of Senate Bill 1334, the sentencing reform bill that Gov. Doug Ducey vetoed last week.

In Arizona, the term “repetitive offender,” applied for the purpose of setting prison terms, doesn’t mean what you think it means.

boldingOur state does not reserve the label for people who have been previously convicted of a crime, and it often refers to people arrested for the first time, with no criminal history whatsoever.

Under current law, prosecutors can attach the “repetitive offender” label to anyone they have charged with multiple counts, even for offenses that occurred just hours apart. Think of the person, fueling an addiction, who sells marijuana to two people on the same night, perhaps encouraged to do so by undercover police. Or someone who stole his mother’s car a few times in one week to go joyriding and then gets arrested. In Arizona, they are marked repeat offenders and for that reason face mandatory, lengthy prison terms. This sentencing provision, unlike almost any other in the country, doesn’t make us safer or reduce crime. It’s just a tool for prosecutors to extract more guilty pleas and send more people to prison for longer periods of time.

So Republican Rep. Ben Toma introduced legislation to end this cruel and unjust practice. The bill, which became SB 1334, would have shifted power from prosecutors and ensured that judges have greater discretion to impose the appropriate sentence in each case. Twice this year, the House of Representatives passed this reform by overwhelming margins, including a 46-12 vote on May 9. And with advocacy groups from the ACLU of Arizona to the conservative Americans for Prosperity in support, there was real momentum for change.

But Arizona’s prosecutors would not so easily relinquish power.

Faced with sweeping bipartisan demands for justice, Maricopa County Attorney Bill Montgomery and Yavapai County Attorney Sheila Polk responded with an opposition campaign of misinformation and scare tactics. They falsely told lawmakers the bill would fail to punish “serial killers” and “rapists.” They suggested SB 1334 would free dangerous and violent offenders, when in truth it would have left judges with a variety of tools to impose long sentences, including enhancements for dangerous and sex crimes.

In the end, both chambers passed a modified version to appease prosecutors, adopting specific changes written by the prosecutors and made at their request. The new bill wasn’t as strong, but it was a step in the right direction, and it came with the understanding that prosecutors would remain neutral as Governor Ducey considered signing.

But that didn’t happen. As Rep. Toma reported on Twitter, “prosecutors did not keep their word and stay neutral,” and Ducey, overriding the will of the Arizona electorate and their representatives, vetoed the bill.

The prosecutors’ role in killing SB 1334 is not an isolated example. It is instead a lesson in how and why Arizona remains stuck in the past, a national outlier in its reliance on prisons and harsh punishments, even as a broad array of voices and communities demand change.

For years, promising and urgently-needed reforms, in many cases sponsored by Republican lawmakers, have been blocked by self-interested prosecutors eager to preserve their own power. Allow incarcerated people to participate in recidivism-reduction programs and reduce their sentence? Prosecutors oppose. Defelonize possessing small amounts of marijuana like every other state in the country? Prosecutors oppose. Suggest anything that might reduce the power of prosecutors to punish? They oppose.

For too long, prosecutors with outsize influence have successfully lobbied to prevent Arizona from making all but the most incremental progress. And for too long, their fear mongering has worked.

The House votes in support of SB 1334 send a strong message that many of us – on the right and the left – know better, that we are no longer listening only to the powerful but also to the powerless, to those who bear the brunt of unbridled prosecutorial discretion. It’s disappointing that, this year, that wasn’t enough.

But the more people that know the story of SB 1334, the less likely it is to be repeated.

— Democratic Rep. Reginald Bolding represents Legislative District 27 in Phoenix.


  1. Thank you Representative Bolding for telling us the story of why Arizona continues to have one of the most expensive, brutal prison systems in the country. Those of us who have been active in criminal justice reform have become very tired and frustrated by what goes on. Our prisons are full of low level drug offenders and others who are victims of trumped up charges, which ends up hurting families,communities and the state economy. Another reason why we are stalemated from making change is that too many of our legislators, prosecutors, and others in state government profit financially from a robust prison system. They do what they can in their positions to ensure a steady flow of customers. Shocking, but true.

  2. Gotta keep those prisons for profit full somehow.

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