State lawmakers took the first steps February 3 to reversing decades of tough-on-crime policies.
Without a single dissent, members of the House Committee on Criminal Justice Reform voted to restore some of the discretion taken away from judges more than four decades ago to determine what is an appropriate sentence.
HB2673 does not scrap all of the mandatory sentencing laws.
In order to divert from the code, a judge would need to find that a mandatory sentence would be an injustice to the defendant, that it is not necessary to protect the public, and that the person was not convicted of a serious or dangerous offense. And judges would have to explain their decision on the record.
But lawmakers did not stop there. Committee members also approved:
– Barring the state from denying certain licenses to people solely because they were convicted of drug offenses.
– Curbing the ability of prosecutors to “stack” charges from multiple offenses being tried at the same time to get an enhanced sentence.
– Ensuring that female prisoners have access to hygiene products.
– Establishing an independent office of “ombudsman” who would have oversight over the Department of Corrections, Rehabilitation and Reentry.
Rep. Walt Blackman, R-Snowflake, who crafted that last one, said it in particular is crucial to making changes in the prison system.
“This is the beginning of reform,” he said. “We can’t fix something if we don’t know what to fix.”
But the major shift goes to the issue of sentencing reform.
The state’s policies on incarceration date back to 1978, when lawmakers voted to impose mandatory prison terms for certain crimes.
And in 1993, they approved the “truth in sentencing” law which says criminals must serve at least 85% of their term before being eligible for release. That followed complaints that even when judges were imposing longer terms that inmates were getting out after serving only a fraction.
Freshman Rep. Joel John, R-Arlington, said he became interested in the issue after meeting a constituent who had served two years in prison “for some petty crimes he committed because he became addicted to painkillers from injuries he sustained on the job.” After release, John told colleagues, this man couldn’t find a job and ended up working on a farm for him.
“He was subjected to the mandatory minimum sentences,” John said.
“And there were people that spent less time in prison than he did for more serious offenses,” the lawmaker continued. “That didn’t seem right to me.”
John said he sees no reason why a judge, who has met the defendant and examined the circumstances, should be precluded from imposing a sentence that appears more appropriate.
The measure also picked up support from Pinal County Attorney Kent Volkmer.
He told lawmakers that, officially, he is neutral on the measure.
“But I can tell you, this is good governance,” Volkmer said.
He acknowledged that the legislation does remove power from prosecutors in his office to bring charges and seek certain sentences.
“However, I can tell you there are individual cases in which people will come forward when an injustice occurred, a person got more time than they reasonably should have,” Volkmer continued. “It’s not common, but it does happen.”
Giving more discretion to judges to deal with those circumstances, he said, helps prevent that from happening.
There’s also a financial component to all of this.
The latest figures show more than 37,700 people in the care of the prison system. And the agency’s current budget now exceeds $1.2 billion a year, more than 10% of every dollar to run state government.
“It’s a justice issue, if we save some money that we can reinvest in making the community safe,” said Molly Gill, representing Families Against Mandatory Minimums. But Gill, a former prosecutor, said the focus should be on doing what’s right.
“Frankly, I got sick of sending people to prison who didn’t need to be there, and putting people there who didn’t need to be there that long,” she said.”
Not everyone is pleased with the change.
Steve Twist, who was the assistant state attorney general during much of the time that lawmakers were tightening up sentencing laws, sent a letter to lawmakers expressing his opposition. He wrote that it would return Arizona to the days of indeterminate sentencing “which result in great disparity, inequality and injustice.”
“That system was rejected by a bipartisan overwhelming consensus in 1977 and we should not return to the mistakes of the past,” Twist said.
That did not impress Rep. Diego Rodriguez, D-Laveen.
“We live in 2021,” he said. “And the people of Arizona have consistently come to us, individually and as a group, and asked us to move forward on criminal justice reform.”
Yavapai County Attorney Sheila Polk did not appear at the hearing, but entered her own statement into the record in opposition.
“Arizona adopted sentencing ranges to promote uniformity,” she wrote. “This bill takes us back to the days when who you are, where you live, and who your sentencing judge is will determine your sentence.”
And Polk said if lawmakers are concerned about the sentences imposed, the answer is to revisit the sentencing framework that judges have to work within, not giving them more discretion.
HB2319 deals with the problems some released inmates have with getting a job. It says that, with only a handful of exceptions, the conviction of a drug offense cannot be a barrier to getting a state license.
“We know that employment is the key to breaking free of the cycle” of people winding up back behind bars,” said Dianne McCallister representing the Opportunity Solutions Project. She said ex-offenders are faced with multiple hurdles to getting a job.
“But Arizona’s regulations should not be one of them,” McCallister said. She said there are many jobs that require state licensing, like working as a cosmetologist or at a pest-control firm, where a drug offense should not be a barrier.
There are limits. For example, it still would not allow someone with a criminal record to get a certificate as a teacher, be in certain health profession jobs, or be certified as a peace officer.
The issue of HB2318 is designed to address situations where prosecutors “stack” multiple charges from a single event.
Arizona law always has allowed enhanced sentences for those who are repeat offenders. But what happens, said Rep. Ben Toma, R-Peoria, is that prosecutors combine multiple separate offenses committed on separate occasions into a single trial and then use that to seek longer sentences for someone as a repeat offender.
His legislation would preclude that from happening.
Toma got a similar proposal through the Legislature in 2019, only to have it vetoed by Gov. Doug Ducey. He said the language in this one is more of a compromise.
The measures approved by the panel still need to be debated by the full House.