Civil rights attorney: Using seized funds for prisoner study a legal gray area

Profits from seized property are paying for the latest update to a study of Arizona’s prison population that prosecutors use to argue Arizona’s sentencing laws are working appropriately.

The Maricopa County Attorney’s Office is providing the Arizona Prosecuting Attorneys’ Advisory Council with $34,500 to complete the study. Those funds will pay for the services of John Lott, an economist and pro-gun advocate. Lott will review data provided by the Arizona Department of Corrections to update the Prisoners in Arizona report, first published in 2010. The report uses data provided by DOC to determine who’s in prison and for what reasons.

Bill Montgomery
Bill Montgomery

Maricopa County Attorney Bill Montgomery said the funds come from his office’s RICO account, which comes from seized criminal funds. The payment is a sharp increase from what it cost for the last update of the report, when APAAC spent $14,000.

The use of RICO funds to pay for a study that will in turn be used by prosecutors to lobby against criminal justice reform efforts, such as changes to sentencing law, is questionable, but perhaps not illegal, according to Paul Avelar, an attorney with the Institute for Justice.

Paying for such a study doesn’t fit descriptions in state statute dictating that RICO funds be used to pay for gang prevention programs or substance abuse prevention and education programs, Avelar said. Instead, state law refers discretion over other types of expenses to federal guidelines. But those don’t provide much help either, since spending RICO funds on a study of the prison population doesn’t fit the description of either the permitted or impermissible use of forfeiture funds per the U.S. Department of Justice, Avelar said.

“This is part of the problem with the uses of forfeiture funds. The restrictions are written very vaguely, which suggests, potentially, quite broad uses,” Avelar said.

In an email to the Arizona Capitol Times, Montgomery wrote there is justification under federal guidelines. Montgomery described the Prisoners in Arizona report as a crime reduction tool, which he wrote falls under a broad sentence in the DOJ guidelines stating that “equitably shared funds shall be used by law enforcement agencies for law enforcement purposes only.”

Previous versions of the Prisoners in Arizona report appear to have been paid through APAAC’s own budget, according to an email from Elizabeth Ortiz, the executive director of APAAC. Staff could find no record of ever receiving funds earmarked for the project, she said.

Lott’s fee is the steepest price yet for conducting the report. Fischer received roughly $6,000 for his work on the Prisoners in Arizona study in 2009, and more than $16,000 in 2010, according to APAAC invoices. In 2012, when he was paid more than $30,000, he billed 300 hours of work at a rate of $100 per hour.

His rate was slashed in half in 2014, when he was paid $14,000 for 280 hours of research, according to the invoices.

Fischer is ill and unable to conduct the research this time, according to Ortiz.

Montgomery said the higher cost for Lott’s work is partly because he’s new to the research. Lott has also been tasked with establishing the data in such a way that others will be able to more easily update and analyze it in the future without the help of a statistician or economist.

“I’d like to think that this might be the last time APAAC has to do one of these studies,” Montgomery said.

Commission begins discussion on criminal justice data

Close up view on conceptual keyboard - Law symbol (blue key)
Close up view on conceptual keyboard – Law symbol (blue key)

The Arizona Criminal Justice Commission started work this week on developing a definitive set of data lawmakers can refer to while drafting changes to criminal justice policy, but advocates for reform fear the commission will do nothing more than slap a state logo on a faulty report long pushed by prosecutors.

Commission chairwoman and Yavapai County Attorney Sheila Polk said she saw a need for a “common data framework” when she and other commission members, most of whom are prosecutors or law enforcement officials, met with legislators who questioned why they saw such different reports from prosecutors and reform-minded groups. 

The authors of those reports and other advocates for changing Arizona’s criminal justice laws were not invited to participate in discussions about the data. By excluding them, the commission seems to be taking the position that only law enforcement officials and prosecutors should have a say in how the criminal justice system is set up, said Darrell Hill, American Civil Liberties Union of Arizona policy director. 

“It’s just a continuation of the closed-off tactics we’ve seen from ACJC and the criminal justice community,” Hill said. “Instead of having a conversation, they want to control the conversation.”

A five-hour commission meeting September 25 started with a presentation from Steve Twist, the architect of the state’s criminal justice code. Twist spent much of his nearly hour-long talk praising the code he drafted in the late 1970s, and later additions like the 1993 truth-in-sentencing law that requires inmates to serve 85% of their sentences before they become eligible for release. 

Lawmakers should avoid pursuing “reforms based on myths,” Twist said, adding that supporters of reform movements haven’t provided adequate proof of their claims that the justice system is broken.

“There are those who say we have a mass incarceration problem that does not contribute to public safety and that taxpayers can no longer afford,” Twist said. “There are claims that are worth studying, but they are claims. They are not conclusions.”

The meeting wasn’t intended to be a referendum on any sentencing reports, Polk said, but rather an opportunity to learn more about the data available. Still, she ended the meeting by indicating that she doesn’t believe all data is worth studying.

“The amount of data feels overwhelming to me,” Polk said. “Maybe there’s other data we should be collecting, but do we really want that data? Do we need more? What’s that snapshot at any given time that we should be looking at?” 

Polk is also the chairwoman of the Arizona Prosecuting Attorneys’ Advisory Council, which has produced four reports in the past decade concluding that the state’s criminal justice system correctly puts repeat and violent offenders behind bars. 

She suggested at the criminal justice commission’s July meeting that the commission’s Statistical Analysis Center, rather than the prosecutors’ council, produce future versions of that report, according to meeting minutes.

The prosecutors’ report is based on data provided by the Department of Corrections, which critics say doesn’t paint a full picture of sentencing policy. Among other criticisms, reform advocates say the report misleadingly conflates violent offenders and people with multiple convictions, putting murderers and petty criminals in the same box. 

Groups, such as the American Friends Service Committee, have done their own research on state sentencing laws, including a report that concluded that the state spends more than half a million dollars each day to incarcerate people whose only crime was drug possession.

Rebecca Fealk, a program coordinator with the American Friends Service Committee, told committee members she was surprised the organization wasn’t invited to talk when its reports were being questioned. Fealk had the five minutes afforded members of the public to speak, rather than the 30 minutes or more offered most presenters. 

The Quaker organization’s research shouldn’t be written off, Fealk said. 

“We don’t want to be discredited,” she said. “We want to help.”

The commission heard presentations from the Department of Corrections, adult probation services and court administrative offices, but not any of the organizations that have produced their own reports on criminal justice in Arizona. 

Commission members also missed an opportunity to hear from formerly incarcerated people and researchers in other states, said Hill, the ACLU policy director. Instead, a commission made up almost entirely of prosecutors and law enforcement officials heard presentations from the perspective of law enforcement, he said. 

The 1980s law that created the 19-member commission spells out specific roles each governor-appointed member must have – for instance, a police chief from a large county or former judge. It doesn’t include any defense attorneys, and legislative efforts to change the law to include public defenders repeatedly stalled. 

“They met on their own, in their own echo chamber, and painted a slanted picture of Arizona’s mass incarceration crisis,” Hill said. “The exact people who caused our prison population to explode are now trying to halt the bipartisan momentum for reform by presenting a skewed set of data and downplaying the severity of the crisis for Arizona families, communities and taxpayers.” 

Marilyn Rodriguez, a lobbyist who works on criminal justice issues at the Capitol and sat through the meeting, said the commission appeared to show its hand by inviting Twist and not any of the groups that had their research called into question. 

“It’s frustrating that we had a conversation about data today where we didn’t actually talk about data,” Rodriguez said. “We just heard what we always hear from the same group or people, prosecutors and law enforcement.”

Liberal-leaning and conservative-leaning groups including the ACLU, FWD.us and Right on Crime all agree on what the data shows about the state’s criminal justice system, Rodriguez said. The only disagreement comes from the prosecutors on the Arizona Criminal Justice Commission.

It’s unlikely that the commission’s “common data framework” will come to any conclusions other than that prosecutors were right all along and there isn’t enough data for anything beyond that report, said Kyle Barry, senior legal counsel at the national Justice Collaborative. 

“If anything other than those two things come out of this ACJC hearing, I would be shocked,” he said.  

Compiling all the available data into a single source is a laudable goal, said Kurt Altman, Arizona and New Mexico director for the conservative reform group Right on Crime. But he said focusing too much on compiling data could distract from getting actual reform work done.  

“We don’t need any more data to say the No. 1 problem that leads to recidivism is the lack of jobs, No. 2 is the lack of housing,” Altman said. “Let’s look into that. We can do something about that.” 

Controversial researcher hired to update prison population study

For years, Arizona’s top prosecutors have leaned on a study of the state’s prison population to draw conclusions about how sentencing laws work.

For just as long, advocates of criminal justice reform in Arizona have criticized the study as flawed and misleading in a way that benefits the arguments prosecutors make to policymakers at the Capitol: that sentencing laws are working as they should. Put another way: the majority of people behind bars are the bad guys – violent and repeat offenders – who deserve to be there.

The latest update to the Prisoners in Arizona report, produced by the Arizona Prosecuting Attorneys’ Advisory Council, or APAAC, is scheduled to be finished this fall, and it promises to be more controversial than ever thanks to the man hired to update it, John Lott.

John Lott
John Lott

Lott is best known for his work in the field of gun laws, where his most talked about research concludes that areas that allow concealed carry of firearms are associated with lower crime rates.

Just as critics of the Prisoners in Arizona report have spent years rebutting the study’s findings, Lott’s critics are no less vocal. His research has been picked apart, and in many corners of the academic community, found to be lacking. His integrity has been questioned amid accusations that he manipulates data to draw conclusions that fit the narrative of his views on firearms, accusations that Lott has repeatedly denied.

His hiring by APAAC has left those already critical of the Prisoners in Arizona report even more wary that the council is engaging not in a fact-finding mission, but in a political exercise designed to protect their broad discretion as prosecutors.

Officials with APAAC either defended Lott’s research or argued that his political leanings and firearm-focused studies are irrelevant to the task at hand of analyzing data provided by the Arizona Department of Corrections. But for some, like Caroline Isaacs, whose work for the American Friends Service Committee in Arizona focuses on criminal justice issues, the politics are hard to ignore.

“This is a really unfortunate choice that honestly I think undermines the credibility of APAAC,” Isaacs said. “And if I were a member of APAAC, I would have serious reservations about putting my name behind any research produced by this guy.”

The Academic

Lott came to prominence for his work as a pro-gun academic, and is frequently called upon to make media appearances or write editorials expounding the virtues of guns as a crime deterrent. His résumé boasts work as a contributor, then columnist for Fox News.com, and most recently, the president of the Crime Prevention Research Center, an organization run out of his Pennsylvania home covering a wide range of research topics, most related to firearms.

Lott had his ups and downs through the years, most notably after a wave of research contradicting his work around “More Guns Less Crime,” his seminal book first published in 1998. “More Guns Less Crime” stemmed from a study Lott co-wrote as a research fellow at the University of Chicago. Published in 1997, that study drew a link between laws permitting concealed carry and lower crime rates.

His conclusions were much like the adage often heard at the Arizona Capitol that guns in the hands of well-to-do citizens are a quality means to deter evil-doers.

As gun advocates latched on to Lott’s research, the larger academic community began to scrutinize it, and what they found was, in the words of one criminologist, “garbage.”  Studies have since contradicted Lott’s work, criticizing everything from the data he chose to analyze and the statistical models he used to crunch the numbers.

Lott later came under fire when, asked to release the data from a survey he conducted on his own that resulted in claims about defensive gun use, he said the data was lost in a computer crash. He was further scrutinized when he admitted to using a pseudonym to defend his work in online forums.

Lott has responded time and time again to attacks on his research, even from some conservative voices like Michelle Malkin, a political commentator. His rebuttals have satisfied some, but not all. Among Lott’s supporters is Maricopa County Attorney Bill Montgomery, who recommended that APAAC hire Lott.

David Clark and Ted Nugent
David Clarke, left, and Ted Nugent

Lott founded the Crime Prevention Research Center in 2013, which boasts an academic board that he explains reviews his research. His board of directors is filled with names reminiscent from the 2016 campaign trail as supporters of President Trump. There’s Ted Nugent, the far-right musician and gun advocate, and Milwaukee County Sheriff David Clarke, who has come under fire after a mentally ill man was found dead in solitary confinement in one of his jails.

When asked about his qualifications to conduct the Prisoners in Arizona report, Lott noted his past academic credentials – he has held teaching or research positions at Stanford University, the Wharton Business School, Yale Law School, Rice University, and the University of Chicago. In an email to the Arizona Capitol Times, Lott wrote that his experience as the chief economist for the U.S. Sentencing Commission from 1988 to 1989 also qualifies him to study prison populations.

As for his critics, Lott said they “will make it appear that it is my research on the one side against lots of others.” He referred to a list of writings with positive takes on right-to-carry laws – compiled on his own website – as evidence that most criminologists and law professors support the conclusions of his research.

Besides, those criticisms have nothing to do with the task at hand of updating the Prisoners of Arizona report, a job that requires no real statistical work, he wrote.

Lott added that past criticisms of the report are irrelevant to him.

“There is no policy or discretion on my part involved in what I am doing for Bill Montgomery. All I am doing is taking the last report that was done and updating it. What they looked at before will remain unchanged. I’m not adding any additional topics nor taking anything away,” Lott wrote.

The Report

The work of updating the Prisoners of Arizona report should be simple enough, Lott said. The job involves organizing past data, replicating the most recent report, and adding some years of data to it.

“The job doesn’t involve reinterpreting data or testing hypotheses,” Lott wrote in an email.

That’s been the case since 2010, the first year APAAC published the report. It was initially produced by Daryl Fischer, a former analyst for the Department of Corrections who updated the report in 2011 and 2014.

Each time, Fischer has followed the same formula he first used in 2009 and 2010 – gather data from the Department of Corrections.

Caroline Isaacs, director of American Friends Service Committee, makes a point during a press conference Aug. 3, 2017, to introduce a report the group published on the high number of drug offenders in prison. (Photo by Rachel Leingang/Arizona Capitol Times)
Caroline Isaacs, director of American Friends Service Committee, makes a point during a press conference Aug. 3, 2017, to introduce a report the group published on the high number of drug offenders in prison. (Photo by Rachel Leingang/Arizona Capitol Times)

That’s problematic, according to Isaacs, whose group focuses on criminal justice issues, because DOC data is but a snapshot of the sentencing process. As Isaacs wrote in her 2011 rebuttal of the Prisoners in Arizona report, DOC “uses broad categories to classify prisoners based on a set of criteria that may make sense for correctional administrators, but does not provide all the pertinent information about the individual case.”

“This is not based on any kind of sentencing information,” Isaacs said in an interview. “It’s based on what the Department of Corrections can tell them about who they have in custody. And that is a very small piece of the picture when it comes to sentencing.”

That’s a part of what makes the conclusion of the Prisoners in Arizona so troublesome for its critics: That 95 percent of prisoners in the state are some combination of repeat and violent offenders, two very different categories of people, Isaacs said.

As a contrast, the American Friends Service Committee recently completed a study of drug sentences in Maricopa, Pima and Yavapai counties in 2015. It wasn’t easy to conduct, Isaacs said, as she and a team of researchers manually pulled the cases from courthouse records to study each one, from the arrest to the sentencing.

It might be a slog, but it can be done, Isaacs said, adding that she “cannot imagine why our elected officials and court personnel and systems actors wouldn’t want to get that data.”

Amy Kalman
Amy Kalman

“In the absence of doing that, we simply have no idea how our sentencing laws work, which is very convenient if you’re in opposition to reform of said sentencing laws,” she said.

Amy Kalman, president of Arizona Attorneys for Criminal Justice, said the Prisoners in Arizona report isn’t useless, but should be taken with a grain of salt. It’s problematic when policymakers take the APAAC’s study as gospel without looking at the data and methodology with a critical eye, she said.

“I’m not sure that everybody who looks or generates or relies upon the report necessarily understands all of the concerns that have been raised with the report, not just by AACJ, but by other people,” Kalman said. “So to look at it and say, ‘Hey I’ve got numbers that confirm I’m doing the right thing’ can be very reassuring.”

‘Work Really Hard’

Elizabeth Ortiz, the executive director of APAAC, said there’s a “whole book full of questions” about how and why people get sentenced in Arizona, and the APAAC report doesn’t claim to answer them all. But the original analysis is a valuable resource, she said, and it’s been updated in a similar fashion each time to maintain an apples-to-apples comparison of the data.

The question the Prisoners in Arizona report seeks to answer is, who is in prison, and what are their specific criminal records?

Basically, she said, “what did they get sentenced to prison for?”

Montgomery, whose office is providing $34,500 in RICO funding to pay for Lott’s services, said the data studied in Prisoners in Arizona is sufficient. In the past, Fischer’s studies have used orders of commitment, Montgomery said – sentencing orders made by Superior Court judges.

“There’s no subjective Department of Corrections evaluation of that. If someone was sentenced for trafficking of stolen property in the second degree, that’s what is captured in it. And this is where the Arizona Friends Society loses their credibility,” Montgomery said.

“Either we have 95 percent of people in prison for multiple felony convictions and/or violent convictions, or we don’t,” he added, citing the key statistic found in the 2014 Prisoners in Arizona report.

If APAAC really wants to answer questions about sentencing, studying DOC data is never going to provide an answer, but conveniently, the Prisoners in Arizona report does provide a data-driven study that fits a narrative prosecutors push at the Capitol, Isaacs said.

“The message and the takeaway from this report and also things I have heard various county attorneys say repeatedly is, the line is, ‘You have to work really hard to go to prison in Arizona,’” Isaacs said.

The American Friends Service Committee’s recent study of drug sentencing in three Arizona counties shows something else entirely, Isaacs said: “It’s much easier to do prison time for drug-related offenses in Arizona than I think their messaging acknowledges.”

In Maricopa County, drug-related charges are the single most charged offense, by far, Isaacs found. Most charges are for possession. That is in a county that Isaacs praised for making diversion programs available to drug offenders, though she noted other counties don’t have programming as good as Maricopa County provides.

“Far from being scary drug dealers pushing drugs with kids, or cartels, really what we see from the data is small-time sales, because people are addicted and they’re selling small amounts to support their habit, or just because people are addicted, they have repeat offenses,” she said.

That paints a picture not of a prison system filled with violent criminals, but repeat offenders who are in prison because of an addiction – and their time in prison has clearly done nothing to resolve the addiction, since they wind up back in the system upon their release, she said.

Montgomery, however, doesn’t think much of studies like Isaacs’. He was quick to slam the recent drug sentencing report, which he called poorly researched, and linked the American Friends Service Committee to liberal financier George Soros, someone Montgomery said aids in efforts to “manipulate the truth” – the same accusations that have been made against Lott.

As for the limitations of DOC data, Montgomery said he doesn’t have the kind of access to all the data he’d need to comprehensively track sentencing, and defended the initial purpose of the Prisoners in Arizona report.

“Quite honestly, the question that was asked back in 2009 … was, if we say we want to send the most repetitive and the most violent offenders to prison, then that’s who should be in prison. So let’s go take a look at who’s there and for what offenses,” Montgomery said.

A Polarizing Figure

As for Lott, Isaacs called his hiring a “real departure” for APAAC. While she had reservations about Fischer, who Ortiz, APAAC’s executive director, said is ill and unable to update the report as he has done in the past, at least Fischer had years of experience in Arizona as a statistician – albeit for the Department of Corrections, Isaacs noted.

“Mr. Lott, on the other hand, is clearly a visibly political and polarizing figure who does not seem to be concerned particularly with objectivity on certain subjects, most notably guns,” she said.

Kalman, president of Arizona Attorneys for Criminal Justice, declined to comment on the veracity of the latest Prisoners in Arizona report until it’s complete, but the choice of Lott doesn’t inspire confidence, she said.

“They probably could have made another choice, and I hope it’s not an indication that they’re trying to make this a political thing instead of a search for what is actually gonna help,” Kalman said.

Montgomery dismissed those concerns, describing them as the same tired criticisms of organizations that have doubted APAAC’s study for years.

“His data in there has been reviewed. He makes his data available to everybody. I think it’s been more criticized and reviewed because he came to conclusions that don’t fit the liberal narrative,” Montgomery said.

Ortiz said Lott has the analytical skills as an economist to answer specific research questions APAAC hopes to answer using the Department of Corrections data. As for his political leanings and other research, that’s irrelevant to the task at hand, she said.

“I recognize that Dr. Lott has done studies that some people find controversial,” Ortiz said. “To me, I’m just looking at him as a professional who understands statistics, who understands data and understands how to pull subsets out of that data to answer specific questions. So to me, I don’t look at his politics or look at any of his other studies because that’s not what I’m hiring him for.”

High Stakes

The stakes are high for advocates of criminal justice reform, who have seen how prosecutors have used and continue to use the Prisoners in Arizona report to make the case against sentencing reform.

Bill Montgomery
Bill Montgomery

Montgomery said that’s not the case.

“I don’t cite those studies to say that, ‘Here’s exactly what truth in sentencing has done to prevent crimes.’ I’ve mentioned it. But I primarily cite that study to identify exactly who’s in prison and for what offenses, and that’s completely objective,” he said.

The very website the report is made available through online betrays APAAC’s intentions, as does Montgomery’s past statements. The prosecutors’ council runs a website called Arizona Sentencing Report, an alternate name for the Prisoners in Arizona report. The study is prominently featured on the website, as are “myths about Arizona’s sentencing laws,” among them critiques of Arizona’s criminal justice system.

As far back as 2011, Montgomery came to the defense of Arizona’s sentencing laws armed with his own APAAC-financed report. At the time, a study from the Sandra Day O’Connor College of Law at Arizona State University compiled efforts by other states to reduce prison costs, and sentencing reforms was among the recommendations.

Montgomery requested the school host a debate, at which he blasted the study for its “academic estimates” that examined “the so-called ‘social’ causes of crime.” He argued against the creation of a sentencing commission that would advise the Legislature, and to further his argument, cited the Prisoners in Arizona report, which at the time found that roughly 94 percent of the state’s prisoners were either violent or repeat offenders, or both.

As for the Arizona State University study, Montgomery called it “divorced from reality – another academic exercise.”

Cecil Ash, a former Republican legislator who now serves as a justice of the peace in Mesa, said the Prisoners in Arizona report was often cited in arguments against his own legislative efforts at sentencing reform.

“Truthfully, the legislators don’t really understand the sentencing law,” Ash said. “They rely on the prosecutors to explain it to them.”

That’s what Isaacs, Kalman and even the state’s court system – which this past session pushed for a package of reforms agreed upon by the Arizona Supreme Court’s Task Force on Fair Justice for All – face when trying to get reforms through at the Capitol.

The reform community managed a victory this past session, as lawmakers approved a series of changes to civil asset forfeiture laws over objections from state prosecutors. But other efforts faltered, like the court’s package of reforms. Those bills were halted by Rep. Eddie Farnsworth, a Gilbert Republican and ally of Montgomery.

“I think the APAAC report is great!” Isaacs said. “I think more data is better. We need more data, not less.”

But policymakers are missing out when they rely so heavily on APAAC’s data and when prosecutors dismiss other research, she said.

“My only quarrel is saying that the APAAC report is the end all be all of everything you need to know about sentencing in Arizona. It’s not. Neither is our report,” Isaacs said. “Ours is an attempt to say, ‘Look at all the stuff we’re not calculating, that we’re not following, that absolutely is how sentencing happens, how laws get applied.’”

Court aims to end racial bias in jury selection with new rules

Jurors in courtroom during trial

Arizona is about to become the first state in the nation to eliminate the ability of attorneys to strike prospective jurors based on what may only be hunches, a practice that often ends up culling minorities.

The state Supreme Court will announce this week approval of a new rule eliminating what are called “peremptory challenges.” This is the ability of attorneys in civil and criminal trials to disqualify potential juror without citing any reason at all.

Instead, as of Jan. 1, lawyers will need some specific reason to strike someone from the jury pool, like an admitted bias or their personal knowledge of the parties or the dispute.

The move comes over the objections from several prosecutors who contend, as does Maricopa County Attorney Allister Adel, it “will ultimately lead to trials that are less fair for all sides.”

Instead, the Supreme Court justices accepted the recommendation of two judges from the state Court of Appeals, Peter Swann and Paul McMurdie, who argued that the move will go a long way to eliminating persistent problems with juries that often do not reflect the racial and ethnic backgrounds of their communities.

“The primary tool by which this discrimination is practiced is the peremptory strike,” they wrote in their petition.

No one has disputed that lawyers have used peremptory challenges to fashion a jury they think will be more favorable to their arguments.

But the appellate judges noted this is not anything guaranteed in the U.S. Constitution. In fact, they said, most states did not allow for it until after the Civil War.

“A cynical observer might note that the power came into being in the years after black Americans obtained the right to serve on juries,” they wrote.

The problem was addressed — or at least supposed to be addressed — by the U.S. Supreme Court in 1986 in the case of Batson v. Kentucky.

In that case, a Black man was on trial charged with burglary and receipt of stolen goods.

The prosecutor used his peremptory challenges to eliminate all four Black prospective jurors. Batson was then convicted.

In a 7-2 ruling, the nation’s high court said the prosecutor’s actions unconstitutionally denied Batson his right to a fair trial and his right to equal treatment under the law.

Since then, any time there has been a peremptory challenge to a minority juror the attorney needs to articulate a non-racial reason for his or her decision. But Swann and McMurdie said the data they’ve seen convinces them that it still means fewer minorities on juries, even with lawyers citing what they claim is a legitimate reason.

“There can be no doubt that race continues to play a major role in the exercise of peremptories decades after Batson was decided,” they wrote.

There is evidence of that in Arizona.

Data compiled by the Administrative Office of the Courts shows that in criminal cases, the proportion of white jurors seated varied only 3% from their representation in the population.

By contrast, Black jurors were underrepresented by 16%. And it was worse for Hispanics who were underrepresented 21% of the time, with a 51% gap for Native Americans.

The disparities were even more pronounced in civil cases.

But much of the opposition comes from prosecutors.

Adel said the peremptory challenge gives prosecutors a chance to strike jurors who they believe, based on their answers to questions asked during the screen process, hold some bias.

“Expecting a prospective juror to candidly admit that they cannot be fair is not realistic,” wrote Kenneth Vick, her chief deputy, on her behalf.

“Most people do not think of themselves as unfair or biased,” he continued. “Others, even if they recognize a bias in themselves, likely do not want to express their true opinions on sensitive topics like race, their views on the law, or their beliefs in the equity or inequity of the legal system in front of a group of strangers.”

That view was echoed by Elizabeth Burton Ortiz, executive director of the Arizona Prosecuting Attorneys’ Advisory Council.

“What reasonable minded person would want to publicly admit on the record, in front of a group of stranger that they did not even judge themselves to be fair?” she wrote.

And Assistant Attorney General Nicholas Klingerman, writing for Mark Brnovich, his boss, argued that peremptory challenges help ensure that those who are unfit do not serve on juries and eliminates the need for a lawyer to find some “challenge for cause.”

Instead, Brnovich wants more study of the matter.

But Mikel Steinfeld, a Maricopa County public defender, said the move is long overdue.

“There is near-uniform agreement that peremptory strikes have long been a tool for discrimination,” he wrote. He cited a 2005 survey which found that every lawyer interviewed considered race and gender when picking a jury.

Among judges, the sentiment is more divided.

Nine out of the 10 Yavapai County Superior Court judges submitted comments in support of the change, concluding that the peremptory process is misued.

But a majority of judges in Mohave County are opposed. Kip Anderson, administrator of the court, said peremptory challenges are a tool not just for prosecutors but also defendants whose attorneys may sense bias but not be able to articulate it in challenging someone for cause.

“Characteristics such as facial expressions, body language, tone of voice, dress and grooming are not verbally expressed by prospective jurors and are rarely reflected in the record,” Anderson wrote. “However, they often indicate that these jurors would not favor the defendant.”

And even the Arizona Black Bar, while taking no formal position, is concerned that complete abolition of peremptory challenges “could have unintended and undesirable consequences.”

Not all the opposition to the change is coming from prosecutors. Attorneys defending doctors and hospitals in medical malpractice cases involving millions of dollars also want to keep their ability to strike jurors without having to articulate a reason.

“These cases can be highly emotional,” they wrote. “It is especially important to have the peremptory challenge safety valve for ensuring that the jurors who are seated in these cases are not unfairly biased for or against one side or the other.”

But McMurdie and Swann say there’s another — and potentially more practical — reason, aside from racial and ethnic balance, to eliminate peremptory challenges.

In capital cases, each side now is allowed 10 peremptory challenges. The figure is six per side in other superior court criminal cases and two in lower court.

For civil trials, each side gets four such challenges.

Allowing these strikes means that more people have to be called for jury duty than actually will be needed. That, they said means that “a substantial percentage of jurors who make the effort to appear for jury service are merely fodder for arbitrary hunch-based strikes.”

The new rule still allows attorneys to challenge a prospective juror “for cause.” But it will require the lawyer to prove “by a preponderance of the evidence that the juror cannot render a fair and impartial verdict.”


Prosecutors to create statewide list of dishonest cops


Prosecutors have agreed to create a statewide database of officers whose truthfulness or honesty may be questionable.

But an attorney with the American Civil Liberties Union says it appears to be little more than “window dressing” on what he contends is a flawed system. Jared Keenan said that still gives prosecutors a lot of leeway to refuse to add someone to the list and, more to the point, refuse to disclose to defense attorneys exactly what it is that caused that officer’s name to be added.

And the new database itself is of little use to the public who may want to know more about the police or deputies in their community.

It is searchable only by the name of an individual officer. There is no way for anyone to get a list of all the officers from any individual department who prosecutors or their own superiors have concluded may be less than honest.

In fact, even if someone has a name that scores a hit, it doesn’t show where that person is now working or whether they’re still a sworn officer.

At the heart of the issue is what is known as the “Brady list.” It is named for a 1963 U.S. Supreme Court ruling requiring prosecutors to turn over all evidence to defense that might exonerate the defendant.

That includes the officer’s own history of being truthful.

Elizabeth Ortiz, executive director of the Arizona Prosecuting Attorneys Advisory Council, said Thursday that having a statewide list makes it easier for prosecutors to have access to information, potentially about officers they do not know.

“Because law enforcement officers may change jurisdictions during the course of their career, prosecutors need to have access to information from all Arizona jurisdictions,” she said.

And Ortiz said the list will be publicly accessible.

Jared Keenan
Jared Keenan

Keenan said that’s a plus. But he pointed out that the reasons someone was placed on the list will not be in the database. For that, individuals would have to then file public records requests with individual prosecutors or police agencies.

That information may be important, he said, and not just for those who are arrested. Others may want to know about the records of officers with whom they may be dealing on a routine basis.

And that still leaves the fact that any search has to be performed on a name-by-name basis.

The guidelines adopted by the prosecutors’ council shows a variety of things should require placement of an officer’s name on the Brady list.

That includes intentionally, knowingly or recklessly making false or misleading statements on a police report or other official document. Other factors include race, gender, ethnicity or national origin bias, a pattern of excessive force, or evidence of abuse of power or acts “that could significantly diminish the public’s trust in law enforcement.”

All that, however, presumes that a prosecutor decides to put someone on the list in the first place — and, even then, whether whatever that officer did in the first place is relevant and has to be disclosed to defense attorneys.

“The list is only as good as the information put into it,” Keenan said.

Ortiz acknowledged that nothing in the newly announced changes imposes strict standards to determine whose name goes on the list and what gets released.

“Each prosecuting agency makes its own determination regarding whether information must be disclosed under the law,” she said, saying her agency has developed ” best practices” for prosecutors “to consider in addressing the issue.”

“Most of this is going to be window dressing,” Keenan said of that decision.

He said the problems are deeper than that, particularly for defense lawyers.

“Prosecutors have every incentive to keep officers off a Brady list and not to disclose information,” he said.

“Even when prosecutors disclose information they feel is required to be disclosed under Brady they often fight the use of that information during trial anyway,” Keenan said, arguing to judges that the officer’s offenses that landed her or him on the list are irrelevant to the question of whether jurors should be able to believe the testimony. “Without those things changing, this statewide list I think is going to have very little impact.”

Sometimes it’s not even an intentional desire to keep someone off a list.

There was a 2016 incident at a Marana bar where Tucson police officer Crystal Morales, off duty, had witnessed a fight involving a relative. An internal affairs investigation initially found she was dishonest with Marana police and recommended she be fired.

But no one put her name on the list. It was only after that oversight was discovered that more than 100 criminal cases in Pima County in which she was involved were placed under review.

State lawmakers have attempted to tinker with the rules involving Brady lists, but not in a way to provide for more public disclosure or put teeth into requirements for putting an officer on the list.

In 2019, Rep. John Kavanagh, R-Fountain Hills, sponsored legislation that would have allowed law enforcement officers to actually get their names removed from the list.

What wasn’t disclosed is that the request came from Rep. Anthony Kern, R-Glendale, who was placed on the list after being fired from the El Mirage Police Department for lying to his boss about the loss of a tablet computer. Even Kavanagh said he wasn’t aware of the reason Kern wanted the measure.

Earlier this year Rep. John Allen, R-Phoenix, attempted to add an appeal process for officers to use even before being placed on the list. It also sought to preclude police agencies from using the list in hiring or firing.

That measure was approved by the House but died in the Senate.


Tough-on-crime prosecutors distort truth, block prison reform


While the criminal justice reform movement gains momentum across the country, Arizona remains on the outside looking in. Even as more conservative states with a tradition of harsh justice reduce prison populations through smart reforms that target the root causes of crime, Arizona persists in the failed policies of mass incarceration, wasting resources to imprison low-level offenders.

Ashley Nguyen
Ashley Nguyen

Data in two recently published reports detail what an outlier Arizona has become and how badly reform is needed. As neighboring states save money, reduce crime, and enhance public safety, Arizona remains stuck in the past with the nation’s fourth-highest incarceration rate and $1 billion spent annually on its crowded prisons.

Why has Arizona fallen so far behind?

One reason is that influential tough-on-crime prosecutors, eager to preserve their own power, use cherry-picked data and long-discredited talking points to stoke fear of reform. Maricopa County Attorney Bill Montgomery – the top prosecutor in Arizona’s largest county – has emerged as the lead spokesperson for Arizona’s outdated justice system, insisting at every turn that Arizona doesn’t need reforms proven so successful elsewhere.

It’s a familiar problem, one we also confronted in Texas. In the late ‘90s, Texas was filling new prisons nearly as fast as it could build them. The state’s “lock ‘em up” culture was defended by prosecutors who saw long sentences and high conviction rates as the chief goals of criminal justice. But eventually research and hard data cut through the rhetoric, and a bipartisan alliance coalesced around the plain truth that mass incarceration had failed by any metric. In the last 10 years, policy shifts toward treatment and alternatives to incarceration have reduced Texas’ prison population, dropped the crime rate, and sparked costs savings projected to reach $3 billion.

Jay Jenkins
Jay Jenkins

As the reform debate in Arizona plays out in a similar fashion, it’s vital to debunk the arguments that Mr. Montgomery and other prosecutors use to thwart change. Here are three of the most common:

MythArizona is already a national leader in treating and not incarcerating drug users and those with mental illness. Further reform would only benefit drug traffickers.

Fact: Since 2000, the number of people imprisoned for simple drug possession has jumped 142 percent, and last year it was the single most common reason for a new prison sentence. Mr. Montgomery is notorious for his punitive stance on drugs and once took the stance that even card carrying medical marijuana patients could be criminally prosecuted if they used marijuana extracts, such as oils. Indeed, one report shows that drug cases represent the overwhelming majority of charges filed in Maricopa County, with 45 percent of the charges filed being for drug possession.

Myth95 percent of Arizona’s prisoners are violent or repeat felony offenders.

Fact: This statistic from the Arizona Prosecuting Attorneys’ Advisory Council is highly misleading. For one, its broad definitions of “violent” and “repeat” offenders are highly debatable. But even setting that aside, the sleight of hand here is treating anyone with a record, even for something as minor as a probation violation, the same as someone convicted of a violent offense. In truth, 70 percent of prison admissions in Arizona are for non-violent offenses, and since 2000 the number of people imprisoned for non-violent crimes has grown 80 percent.

Myth: “You have to be committed to a life of crime to go to prison in Arizona.”

Fact: Those are Mr. Montgomery’s words. In fact, since 2000, the number of people sent to prison for a first-time felony conviction has tripled, and first-time convictions accounted for 41 percent of prison admissions last year. Mr. Montgomery’s talking point also dangerously ignores the roles that drug addiction, mental illness, and prison itself play in criminal behavior and recidivism. Most people with repeat offenses are not career criminals; they are people who need treatment and a real chance to succeed.

In March, Mr. Montgomery said that most people who call for criminal justice reform have “no data to support it.” Perhaps that is the biggest myth of all, or at least the most ironic. The evidence that Arizona’s criminal justice system is broken and overly dependent on prison is overwhelming. Texas saw similar evidence and was compelled to start down the path of reform. So did Utah and Nevada and even Louisiana, not long ago dubbed “the world’s prison capital.” In Arizona, prosecutors should not be allowed to bury the truth any longer.

Jay Jenkins is the Harris County Project attorney at the Texas Criminal Justice Coalition

Ashley Nguyen is an intern with the Texas Criminal Justice Coalition, a student at Rice University and an Arizona native.


The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.