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Issue: Beckie Miller

Pima County Attorney challenges criminal justice ballot measure in court

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Foes of an initiative which would give judges more discretion in sentencing criminals are trying to keep the measure from going to voters.

Barbara LaWall
Barbara LaWall

The lawsuit filed in Maricopa County Superior Court by Pima County Attorney Barbara LaWall along with a victim of domestic violence and two parents whose children were murdered, claims the legally required 100-word description printed on the front page of the petitions is “thoroughly misleading.” Attorney Brett Johnson said it fails to inform would-be signers of key provisions, some of which might have deterred people from asking that the proposal be placed on the November ballot.

Roopali Desai, who represents what is dubbed the Second Chances, Rehabilitation, and Public Safety Act, acknowledged that the explanation does not explain in detail each proposed change in the 10-page initiative.

But Desai said that’s neither legally necessary nor actually possible given the 100-word limit.

What she said it’s designed to do is put would-be signers on notice of the general provisions. And at that point, Desai said, if they have questions they can refer to the actual language in the proposal which, by law, must be attached to each petition.

The initiative seeks to remove some of the restrictions that state lawmakers put on judges in 1978 amid concerns that some sentences were too lenient. Instead, judges would get more discretion in what the description says are “nondangerous offenses.”

“But the summary fails to explain that many of the so-called ‘nondangerous offenses’ are, in fact, incredibly dangerous,” Johnson said. He said these include sex trafficking of children younger than 15, kidnapping, home invasion assaults, some forms of armed robbery “and even some types of attempted first degree murder.”

That definition, Johnson said, also applies to another provision in the initiative which allows those convicted of those non-dangerous offenses who complete certain programs while behind bars to get released after serving just half of their term. That creates an exception to the “truth in sentencing” laws dating back to 1993 which mandate that all convicted felons serve at least 85 percent of their sentence.

Desai denied there’s anything misleading about the description.

She pointed out that references to “nondangerous offenses” in the description are followed by the parenthetical words “as defined.”

Roopali Desai
Roopali Desai

“So we said, if you want to know more about how it’s defined, go look at the language which, by the way, is attached to every petition,” Desai said.

Anyway, she said, there is already a state law that spells out what are dangerous offenses. That means everything else, by definition, is a non-dangerous offense.

More to the point, Desai said would be impractical to list in the initiative — and certainly in the description — every offense that falls into that category.

“You’re talking about potentially dozens if not hundreds of criminal code provisions,” she said.

That question of non-dangerous offenses isn’t the only issue.

Johnson also complains about verbiage in the description that says only that the initiative “amends two sentencing statutes.”

What it actually would do is alter a provision of state law which now lets prosecutors charge people who committed separate crimes on multiple days as repeat offenders, allowing them to seek enhanced sentences. Instead, the measure says the only way that could happen is if someone actually had been convicted of a separate offense before committing a new one.

“This omission is highly misleading because reasonable voters would be far less likely to sign the petition if they knew it would reduce the penalty for repetitive felony offenders,” Johnson wrote.

“By granting lenience to felony offenders for their third, fourth, or fifth offenses (or more), the initiative does not provide felony offenders merely with ‘Second Chances’ (as the initiative’s title suggests),” he said. “It provides them with unlimited chances.”

Desai, for her part, said it would be “inaccurate” to say the initiative changes the law on “repetitive offenders.” Supporters of the measure instead see the language as simply saying what can — and cannot — be used as what it calls “a historical prior felony conviction” to allow for enhanced sentences.

And Desai said there is nothing misleading about simply saying in the description that the initiative “removes a requirement for eligibility under the earned release credit program.”

The problem with that, Johnson said, is that the removed requirement is functional literacy at the eighth grade level. He said that is something that signers would want to know.

No date has been set for a hearing. But the case needs to make it through the trial court and the likely Supreme Court appeal before the third week in August when ballots for the general election are set to go to the printer.

Other than LaWall, who is retiring at the end of the year, 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.

Voters get choice on criminal punishment, judge rules

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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.”

Joseph Mikitish
Joseph Mikitish

“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.