Arizonans are entitled to vote in November on a measure to give judges more discretion in imposing sentences on criminals, according to a new court ruling.
Maricopa County Superior Court Judge Joseph Mikitish, an appointee of former Gov. Jan Brewer, late Friday rejected arguments by Pima County Attorney Barbara LaWall and some crime-victim advocates that the required 100-word description of the measure failed to inform those signing the initiative petition of exactly what it would do. The judge said he found the wording contained nothing that was either fraudulent or created a significant danger of confusion or unfairness, the legal standard by which these statements are measured.
And Mikitish specifically spurned the suggestion that initiative crafters were misleading signers — and would be misleading voters if the measure gets on the November ballot — by saying the additional judicial leeway would apply only to “nondangerous” offenses.
Attorneys for challengers argued that a “reasonable voter” would not understand that the category legally includes things like sex trafficking of a 15-year-old child, conspiracy to commit murder, terrorism, kidnapping and home invasions.
The judge did not dispute that contention. But he said it’s not that simple, saying the term is “open to a wide variety of interpretations.”
“From a layman’s perspective, a ‘dangerous’ offense frankly could apply to almost any crime in the criminal code,” Mikitish wrote. “Conduct is made criminal because it involves the actual or risk of injury, danger, or harm of some person in the community at large.”
Looking at it that way, the judge said, some people might conclude there is no such thing as a “nondangerous offense” while others might conclude it is one that does not involve injury to others.
And there’s something else.
Mikitish said anyone who was unclear about what is and is not included could simply read the actual petition language which, by law, has to be attached to signature sheets. And there, he said, they would have learned that the measure defines “nondangerous” offenses as anything other than first- and second-degree murder, child molestation, rape, and anything defined by the legislature as a dangerous offense.
Nor does Mikitish believe that it matters that the term might seem biased and incomplete. He said the 100-word description does not need to be impartial or provide every detail of every provision.
“A reasonable voter is likely to understand that every proponent of a ballot initiative is attempting to gain his or her support and is likely to highlight the positive aspects of the proposal,” the judge said. “Like in any market, a certain level of puffery must be expected.”
And he said the answer to that is for foes to make their own claims to voters.
The initiative crafted by Arizonans for Second Chances, Rehabilitation and Public Safety would alter current laws on incarceration which date back to 1978 when legislators voted to impose mandatory prison terms for certain crimes. It would allow to deviate “in the interest of justice,” even to the point of suspending sentences and placing people on probation.
It also would amend a 1993 “truth-in-sentencing” law which says criminals must serve at least 85 percent of their term before being eligible for release. This would allow the release after 50 percent of sentence for those serving time for nondangerous offenses who meet other qualifications.
Challengers also charged that the proposal violates the Victims Bill of Rights in the Arizona Constitution because victims may not have the right to be heard when the Department of Corrections, Rehabilitation and Reentry recalculates the earned-release credits of criminals who already have been sentenced.
But Mikitish apparently accepted arguments by the campaign committee that any constitutional arguments can’t be decided unless and until the measure is approved.
There was no immediate response from LaWall who is retiring at the end of the year. But she is likely to seek Arizona Supreme Court review.
Other plaintiffs are:
– Heather Grossman, a survivor of domestic violence who was left paralyzed when she was shot by someone hired by her former husband;
– Beckie Miller, whose son was robbed and murdered in 1991, prior to the “truth in sentencing” provisions; the lawsuit said none of the three perpetrators served more than three years in prison;
– John Gillis, a former police officer, whose 23-year-old daughter was murdered in 1979 by a gang member who killed her as part of his initiation.
In addition to automatic release eligibility at 50% of an imposed sentence for offenders designated as non-dangerous, the proposed initiative does not disturb existing laws which allow up to a 90 day early release for the Transition Program and/or for Temporary Release. In other words, some will qualify for an additional 6 months off the sentence. Therefore, potentially, a 5-year sentence could be completed in 2 years, plus a few more months of supervision in the community. Voters will decide if they can deal with the math, recognizing that “non dangerous” offenders aren’t just drug offenders. They include such crimes as sex trafficking, fraud, forgery, theft, burglary, criminal damage and, in some cases, attempted murder. Sadly, legislators didn’t deal with sentencing reform measures when they had the opportunity to do so and all Arizonans will be stuck with whatever problems potentially could arise from a ballot initiative which cannot be tinkered with by legislators. The initiative doesn’t mandate treatment programming in order for a prisoner to earn the full 50% release credits to an early release, so it remains to be seen if recidivism will be reduced. Allowing judges the opportunity to downward depart from negotiated plea agreements, including to impose probation instead of prison, could result in wildly disparate sentences for exactly the same crimes and is more likely to work against racial and ethnic minorities. Eliminating Hannah priors is a positive step and should also have been addressed at the Legislature. In the meantime, the next few months will be interesting as opposing viewpoints flood the airwaves until the November election.