An attorney representing the criminal justice reform initiative warned Tuesday that if the measure is barred from appearing on the ballot it would effectively place a “significant burden” on the constitutional right of Arizonans to craft their own laws.
Kory Langhofer acknowledged that the 100-word description on the petitions dealing with criminal justice reform do not spell out each provision in the 10-page, single-spaced proposal. Attorney Colin Ahler, representing Pima County Attorney Barbara LaWall and other challengers, call that “a brazen bait-and-switch scheme.”
But Langhofer told Maricopa County Superior Court Judge Joseph Mikitish that the language provides signers with the key elements, including giving judges more discretion in sentencing people for nondangerous offenses and allowing inmates convicted of those crimes to be released earlier than now permitted. And he said any provisions not included in the description were not likely to affect the decision of people to sign.
More to the point, Langhofer pointed out that state law limits the legally required description to no more than 100 words.
“There has to be some combination of 100 words that suffices,” he told the judge. “I am left firmly convinced there is no combination of words, 100 words at least, that would satisfy Mr. Ahler’s clients.”
And Langhofer said if the only measures that can appear on the ballot have to be simple enough to be described in 100 words or less, that would run afoul of the Arizona Constitution which not only allows people to propose their own laws but to draft very complex measures.
“It can’t work that way,” he told the judge. “It would be a significant burden on the right to petition.”
Ahler, for his part, suggested that the initiative backers purposely decided what to include and what to exclude.
“They seem to be arguing that it’s perfectly acceptable to deceive people with a 100-word description so long as the deception can’t not be shown to be objectively false,” he told Mikitish.
There is no dispute that the measure would amend existing laws that now tie the hands of judges in what kinds of sentences they can impose on what are classified under Arizona law as nondangerous offenses. It also would allow inmates convicted of such offenses to be eligible for parole after completing just 50 percent of their sentences if they meet certain qualifications; current “truth-in-sentencing” laws forbid release in most cases before someone has served 85 percent.
At least part of the objection from LaWall is that the description does not say that it would eliminate the requirement that inmates be reading at an eighth-grade level before they can be released. And it does not spell out that money would be transferred from the Medical Marijuana Fund to a newly created Victim and First Responder Support Services Fund.
Ahler contends each is a “principal provision” of the initiative.
“There’s no evidence that people would have not supported this if they’d been told that the literacy requirement was going away,” Langhofer countered. Ditto, he said, of the transfer of the money.
He also brushed aside claims by challengers that anything in the initiative would harm crime victims. Langhofer pointed out those rights are laid out in the Arizona Constitution and nothing in the proposed changes to state law can override that.
Much of the lawsuit is based on claims by challengers that the measure fails to inform voters exactly what is included in the category of “nondangerous” crimes, the kinds of offenses for which judges would get more sentencing discretion and inmates could qualify for earlier release.
That list can include sex trafficking of children, home invasion assault, aggravated drunken driving and even terrorism.
Langhofer, however, said this isn’t a problem caused by the initiative.
He said it is the legislature that defined which crimes are dangerous and which are not. All the initiative does, Langhofer said, is use the same definitions.
In fact, he told Mikitish, the list of what would qualify for judicial discretion and early release actually is even narrower than what is in statute.
Ahler dismissed that as irrelevant, saying that’s not the legal test to determine if a description is misleading.
“It’s not what’s in statute, it’s not terms of art,” he said. “It’s what reasonable people will interpret the language as.”
Langhofer said Ahler was overstating the case that truly dangerous people would be released from prison early, people like terrorists.
“Which terrorists, exactly, are going to be let out of prison early under this?” he asked the judge. “Who was convicted of terrorism in the Arizona state justice system and had no allegation or failure of proof for a dangerous offense?”
Langhofer said it’s an imaginary problem.
“This is an imaginary harm with no evidence in the record to support the fact that, A, it exists, or B, that it would have changed the mind of someone who was otherwise inclined to sign it.”
Mikitish said he hopes to have a ruling out relatively soon, given that whichever side loses is likely to seek Supreme Court review.