The prosecution function has come a long way in the last two decades across the country and here in Maricopa County. In my eight years of service as the county attorney, we have embraced change, employed technology, and engaged in a constant process of reviewing how we do our jobs to be more effective in carrying out our constitutional and statutory duties and responsibilities.
Bill Montgomery
As a 21st century prosecution office, we have taken on the challenge of better engaging with the communities we serve to enhance understanding of our criminal justice system and forging invaluable partnerships to protect and strengthen the communities where we all live. Our eight community-based prosecution bureaus, each serving a specific area of the county, provide a direct link to front line prosecutors working with law enforcement agencies, residents, and neighborhood and business leaders to collaborate on effective public safety strategies.
We work to maintain an independent role in our criminal justice system to ensure we preserve the public’s trust and confidence while we also hold law enforcement to the same standards of the law and rules of evidence as anyone else. When officers, agents, and deputies fall short, we hold them equally accountable. Twenty-first century prosecutors are held accountable ourselves through the independence of grand juries, judges, defense attorneys, media, and the public to make sure we are responsive and responsible to the people we serve and that we follow the laws and ethical rules of professional responsibility to make sure that the guilty do not go free and that the innocent do not suffer injustice.
Twenty-first century prosecutors use data to allocate resources wisely and prosecute cases for the best possible resolution for victims, offenders, and our community. We work to identify when diverting an offender from formal prosecution to a Veterans, Mental Health, or Drug Court would help an offender most and safeguard our community. We also use diversion from formal felony charging with substance abuse treatment programs and defer prosecution of offenders who are better suited for our felony pretrial intervention program that has a 5 percent recidivism rate in the first three years of piloting the effort. Equally so, we use data to identify those most responsible for committing crime in our communities and those engaged in violence to protect those who simply want to live, work, and raise their families in peace and safety.
Lastly, 21st century prosecutors work collaboratively with our criminal justice system stakeholders and law enforcement and community partners to address causes of crime in the first place. We support youth programs like Si Se Puede and the Damian Gosa Memorial Foundation, crime prevention awareness through our community safety forums and speakers’ bureau, to advocacy for community-based public health programs to address mental health and substance abuse before there is a need for criminal justice system intervention. We realize that an effective criminal justice system must adapt and be flexible in our responses to crime and dealing with offenders while supporting and protecting victims of crime. The 21st century will continue to challenge us but with a commitment to partner, innovate, and lean forward in pursuit of improving public safety and justice for all, Maricopa County will also continue to grow and prosper.
— Bill Montgomery is the Maricopa County attorney and vice president and member of the Executive, Legislative, and Veterans committees of the National District Attorneys Association.
The American Civil Liberties Union of Arizona is suing Maricopa County Attorney Bill Montgomery, alleging he has failed to fulfill an abundance of public records requests for a freelance journalist who received just one document over a seven month period.
Sean Holstege filed a public records request, on behalf of the ACLU of Arizona, into the Maricopa County Attorney’s Office in October 2018 regarding “basic information about how that office functions, including policies, budgets, and data on individual criminal cases,” the lawsuit says.
Holstege – a former staff writer with The Arizona Republic and freelance writer for Phoenix New Times – only received one document, with little to no substantive responses from Montgomery’s Office after several follow-ups, it says in the suit.
State law requires the government to “promptly” disclose records, but the ACLU of Arizona is suggesting that one document over seven months does not meet that standard. The one record Holstege received was a staff roster for a single year within the date range requested, according to the lawsuit.
Amanda Steele, a spokeswoman for the MCAO, said the office has incurred an increasing number of public records requests in the past few years which has led to increasing response times and they answer requests in the order they are received.
“There is no other way for us to try and fairly respond to requests from a multitude of outlets,” she told the Arizona Capitol Times.
Steele said while Holstege may not appreciate the time it takes to provide his records, he is not being ignored.
Regarding the records request made, Steele said it is a “very large and broad custom data request, which necessarily also requires a redaction review to avoid releasing private and or otherwise protected information.”
The request is six pages long with nearly 200 discrete items over a six-year period, she said.
The ACLU claims that the county’s top prosecutor “often impedes attempts to gather public information.”
One year ago, Montgomery warned police departments they could face financial consequences if they strayed from a process the office devised to determine whether to release a public record and were later sued.
Steele accused the ACLU of previously grandstanding the office publicly, which is what she suggests they are doing again today.
“The [ACLU] reached out to media outlets before serving MCAO with any lawsuit. This is the most obvious sign that they are more interested in generating negative headlines about this office, as they have with other prosecution offices across the nation, than with factual representations or truly working to reach resolutions,” she said.
The ACLU of Arizona sent a copy of the lawsuit to Arizona Capitol Times and other media outlets roughly three hours before filing it.
Holstege’s request sought records between January 1, 2013 to the day the request was filed in October 2018. He was seeking the office’s case management system, information about each criminal case prosecuted by the MCAO during the timeframe, information about charges that were declined, personnel and discipline issues related to prosecuting attorneys in the office, the office’s policies procedures, guidelines, and training materials covering topics like bail, plea bargaining, and bias, and also administrative and budget information.
Two weeks after the request was filed and no response was given, Holstege sent a follow up email asking for acknowledgement that the request was received. The MCAO did so the next day writing, ““it is not uncommon for the turnaround time for most [public record requests] to be 3-5 months.”
Holstege followed up again in February asking for an update on when the office would comply with his request.
The office said they were “chipping away” at his request and said some items could not be provided, but did not specify which.
On April 1, Holstege followed up yet again. Two days later, they informed him the request was not yet completed, but sent over one document. Holstege followed up another time on April 10 and has not yet received a response. And then again followed up a final time on April 26 demanding the office to immediately give him the remaining records, but they failed to comply.
Newly-appointed Maricopa County Attorney Allister Adel talking to reporters after her swearing-in on October 3, 2019. (Photo by Dillon Rosenblatt/Arizona Capitol Times)
Allister Adel, an attorney in private practice and former executive director of the Maricopa County Bar Association, will be Maricopa County Attorney for the next year.
After more than a day in executive session, the Maricopa County Board of Supervisors unanimously appointed Adel to finish off Bill Montgomery’s term as county attorney.
Montgomery resigned from his post one day after Gov. Doug Ducey appointed him to the Arizona Supreme Court on September 4. Chief Deputy Rachel Mitchell, who was also in consideration for the appointment, became acting county attorney after Montgomery’s departure.
Adel is the first woman to hold the job as chief prosecutor of the fourth largest county in the U.S. and already stated in her application she plans to run for election in 2020.
After taking her oath of office, Adel said she plans to serve the office and Maricopa County with “integrity and honor.” She said her first priority is to be briefed on all pending cases by senior staff and then she will take the time to meet members in the office.
“I’m going to walk the halls and introduce myself to the team,” she said.
Speaking on a list of harassment controversies the office has faced recently, Adel said she will take any and all allegations seriously.
“Things will be investigated and handled swiftly and appropriately, but justly.”
As the first woman to hold this job, Adel said she is honored, but says she didn’t earn the job for being a woman.
“I earned this based on my merits … I am a character-driven leader and I think that will shine through.”
During her short time at the Department of Child Safety, Adel made the news for sending the Governor’s Office a memo under the state’s whistle-blower statute regarding Ducey’s appointment of Greg McKay as DCS Director in 2015. The statute prohibits a government workplace manager from retaliating against an employee who alleges a violation of the law, mismanagement, a gross waste of funds, or an abuse of authority.
Mike Liburdi, Ducey’s general counsel at the time, confirmed it was Adel who sent the memo. The Governor’s Office refused to make her complaint public arguing it contained information considered attorney-client privilege. Liburdi said it’s because Adel has an attorney-client relationship with Ducey since DCS reports to the governor.
She previously told Yellow Sheet Report that as an outsider to the Maricopa County Attorney’s Office she couldn’t say for certain whether she thought Montgomery did the job well while he was there, but she praised his dedication to seeking justice.
Adel said she would seek a stronger working relationship with the courts and law enforcement than Montgomery had.
“Especially as we start to have conversations about criminal justice reform,” she said.
Adel has held several different jobs since leaving the MCAO in 2011, including administrative law judge at the Arizona Department of Transportation, and general counsel for Arizona Department of Child Safety.
She also said she’s a big believer in transparency and will strive to ensure the media and the public are able to access public records through the office.
Montgomery had a shaky record when it came to fulfilling records requests in a timely manner during his tenure to the extent that the ACLU of Arizona sued him for not fulfilling records requests after a seven-month period.
“If we are doing our job right, we have nothing to hide,” Adel said.
Editor’s note: This story has been revised to include comment from Allister Adel and information on Adel’s background, including a whistleblower memo she wrote in 2015.
Attorney Marc J. Victor speaks to the media concerning his client, Johnny Wheatcroft, Monday, Feb. 11, 2019, in Chandler, Ariz. as Wheatcroft’s wife, Anya Chapman, right, listens. Victor has filed a lawsuit on behalf of Wheatcroft claiming the Glendale, Ariz. police dept. used excessive force against Wheatcroft during his arrest in 2017. (AP Photo/Matt York)
Arizona’s governor says an excessive force investigation into police in a Phoenix suburb seems to have been “whitewashed” and should be reopened.
The comments Wednesday were an extremely rare rebuke of police and prosecutors for Republican Gov. Doug Ducey.
He was reacting to newly released body-camera video showing Glendale police officers repeatedly using a stun gun on a handcuffed man.
Johnny Wheatcroft has sued, saying one officer kicked him in the groin while another stunned him in the testicles during the July 2017 encounter.
Prosecutors declined to file charges. One officer was suspended for three days.
Ducey says prosecutors should “get to the bottom of what happened and hold people accountable.”
The Maricopa County Attorney’s Office announced Wednesday it is turning over materials related to the incident to the FBI in Phoenix to investigate.
“After having personally reviewed all available video evidence, I have determined further investigation is warranted,” said Maricopa County Attorney Bill Montgomery in a press release. “In order to ensure the public’s confidence in any future determination of whether the use of force was lawful, review by an uninvolved agency is appropriate.”
In a recent guest opinion, Maricopa County Attorney Bill Montgomery peddles a grab bag of outdated and weak measures – some over 40 years old – to claim that Arizona leads in criminal justice reform. If only.
In fact, while a significant number of states have embraced measures that have simultaneously reduced their prison population and crime rates, Arizona continues to adhere to a “lock ‘em up” mentality at great cost to taxpayers and with no corresponding public safety benefit. Let’s face it, rather than a national leader in criminal justice reform, Arizona is a national laggard.
Kirsten Engel
Research by Arizona-based and national organizations (including American Friends Service Committee-Arizona, ACLU Arizona, the Vera Institute of Justice and Fwd.us) demonstrates the failure of incarceration to make us safe. Increased incarceration is associated with zero reduction in violent crime and, in some instances, may actually increase crime. We know that high rates of imprisonment:
Break down social and family structures and remove parents and other caregivers from the home who would otherwise nurture children.
Deprive communities and individuals of income and earning potential.
Confine people to the prison environment where drugs can be easily obtained.
Nineteen states, including our neighbors Utah, Colorado and Nevada, have successfully decreased both imprisonment and crime rates, using crime prevention, alternatives-to-incarceration, and community corrections approaches. When New Jersey decreased its incarceration rate by 37 percent between 2000 and 2015, it also saw a 30-percent decrease in crime during this same period. In contrast, West Virginia, with the largest increase in incarceration rates during this period – 83 percent – experienced a 4-percent INCREASE in crime.
Arizona now claims the fourth highest incarceration rate in the nation. While imprisonment shrunk nationally by 6 percent in the last decade, it grew in Arizona by 11. In fact, since 2000, Arizona’s prison population has grown twice as fast as its population. And despite evidence demonstrating that long sentences are ineffective in reducing crime, Arizona keeps people in prison 25 to 100 percent longer than the national average.
It is easy to see why Arizona currently spends over one-tenth of its budget on its prison system. Arizona is the ONLY state in the nation for which the simple possession of marijuana is a felony. Possession of any amount of any illicit drug is a felony, as is possession of any drug paraphernalia – residue, a lighter, wrapping papers.
In Arizona, conviction for the sale of drugs – even minor amounts sold to support the person’s drug addiction – carries the same sentence as manslaughter, armed robbery or kidnapping.
Many states apply harsher sentences to repeat offenders only where their current and prior felonies were violent offenses. But in Arizona, a person faces mandatory prison time and an enhanced sentence for a second offense, even if the current and the former offense were non-violent in nature. For example, a Class 6 drug possession prior felony and a Class 2 violent prior carry the same weight as repetitive offenses for sentencing purposes.
Montgomery repeats the mischaracterization of our current prison population – that it consists of solely violent and repetitive offenders – found on the Department of Corrections website. Not only are many of those repeat offenders currently serving time for nonviolent drug offenses, but the DOC counts as a violent offender any person with any prior dangerous offense on their record, regardless of when it occurred and regardless of whether the person is currently serving prison time for a violent offense. In fact, seven of 10 prison admissions in Arizona in 2017 were for nonviolent crimes, an 80-percent increase since 2000.
And even though the federal funding that drove states to adopt it dried up long ago, Arizona remains one of only two states still adhering to “Truth in Sentencing,” which requires offenders serve 85 percent of their sentence. By contrast, Texas, Colorado and New Mexico allow certain inmates to reduce their sentence through parole, good behavior and prison programming participation. They have reduced the average prison stay of inmates to 60, 63 and 59 percent of their original sentence.
Finally, other states have reformed probation laws, including barring prosecutors from incarcerating people charged with technical violations. But not Arizona.
In the end, it doesn’t really matter if you call Arizona a criminal justice reform leader or laggard. What really matters is whether our criminal justice laws work. Evidence shows that Arizona’s lock ‘em up laws are not keeping us safe. Instead, we send far too many people to prison for far too long at great cost to the offender’s family and community and at great taxpayer expense with little to none of the taxpayer money going toward education or programs to reduce recidivism post-release. Arizona spends $23,826 per inmate, per year, more than we spend per student at our public universities.
Bill Montgomery is among a small but powerful minority of people opposed to criminal justice reform in Arizona. Fortunately, the tide is changing. I was honored to work with a bipartisan group of legislators over the past year, hearing from people involved at all levels of the criminal justice system – law enforcement, judges, prosecutors, public defenders, prisoners, probation officers and advocates – all committed to improving justice and public safety. These bipartisan efforts resulted in draft legislation to reduce Arizona’s record-high incarceration and recidivism rates by de-felonizing marijuana possession, revising drug sentencing, providing for the expungement of felony records under certain conditions and putting judges back into the sentencing process.
We can do better. Criminal justice reform can and must be a top priority for the legislature during the 2019 session.
— Kirsten Engel, a Democrat, represents Legislative District 10 in the Arizona House and is a member of the House Judiciary Committee in the 54th Legislature.
Reminiscent of the movie “Groundhog Day,” we are once again treated to out-of-state authors prescribing changes to Arizona’s criminal justice system with little understanding of how our laws work and less about our crime. “Tough-on-crime prosecutors distort truth, block prison reform,” December 14, 2018.
Bill Montgomery
First, the out-of-state authors can’t face facts. Arizona leads in criminal justice reform. We ensured fair and just sentencing by establishing a presumptive sentencing system in 1977. We passed a Crime Victims Bill of Rights in 1990. We’ve avoided using prison as a sanction and mandated treatment for an offender’s first two drug use/possession offenses since 1996, long before other states even started moving toward treatment options over prison for those fighting addiction. In 2009, we raised the threshold amount for filing felony theft charges. In 2012, in partnership with prosecutors, the Arizona Legislature expanded deferred prosecution and educational and treatment opportunities for offenders with a prior felony conviction. Furthermore, in 2017, the Legislature provided funding for prosecutors across the state to implement intervention programming, something Maricopa County began piloting in 2015.
In the last fiscal year, Maricopa County referred over 3,000 individuals to substance abuse treatment programs and over 2,500 successfully completed treatment. Additionally, a diversion program for other first-time felony offenders saw over 250 successful completions since its inception in 2015, with a 5 percent recidivism rate. Due in part to the success of these and other programs, Arizona’s prison population is seeing another period of decline year over year and for the second time in the last ten years – that’s success.
Second, it might shock the out-of-state authors to learn that prosecutors in Arizona do not tell people what crimes to commit or tell police who to arrest. We must address crime as it comes, which for us includes the reality that Arizona is a major thoroughfare for drug smuggling into our country. The cases we handle start by someone committing a crime and then police making an arrest, conducting an investigation, and then submitting it for our review. Evidence then dictates what charges to file and the harm caused, weapon used, and prior criminal history will inform how the case is resolved and the sentence a convicted criminal will face. Likewise, when there is a question over the implementation of a criminal statute like Arizona’s Medical Marijuana Act, prosecutors ask courts to decide instead of taking unilateral action. Maybe that’s just an Arizona thing.
The out-of-state authors ignore objective evidence of criminal justice system outcomes. The truth is Arizona’s overall index crime rate is the lowest it has been since 1963. That’s success. Similarly, Arizona’s violent, property, murder, robbery, larceny-theft, and auto theft crime rates are also the lowest they have been in past 40 to 50 years. Historically low crime rates are certainly not evidence of failed policies.
Furthermore, our prison population is made up almost exclusively of violent and/or repetitive offenders. The fact that prosecutors and defendants negotiate for a sentence as a first-time offender does not mean that they are going to prison for a first offense. The reality is that the overwhelming majority, due to Arizona law, are imprisoned after having committed prior felony offenses. Arizona law only calls for a prison sentence on a first offense where the criminal used a deadly weapon or dangerous instrument, caused serious physical injury, committed a dangerous crime against a child, is a serious drug trafficker or dealer, or committed certain sexual offenses. For those who care to actually check Arizona data, monthly reports are available on the Arizona Department of Corrections website, which shows who is in Arizona’s prisons. However, you would have to take the time to read Arizona laws and check objective facts to avoid making such a silly conclusion like the authors made.
Lastly, Arizona is tired of trespassers into our public policy process from California Billionaires like Tom Steyer, megalomaniacal New York billionaires like George Soros, to Silicon Valley dreamers like Fwd.us. This latest swing and a miss comes from, according to its website, the Texas Criminal Justice Coalition, a nonprofit entity that “advances solutions and builds coalitions to reduce mass incarceration and foster safer Texas communities.” Given this mission, I suspect that Arizonans might wonder why all the misinformation about Arizona?
Arizona’s criminal justice system is not perfect. There is always room for improvement in any system, and I and other prosecutors remain willing to engage in productive discussions and initiatives to improve criminal justice system outcomes for crime victims, the public we serve, and defendants to reduce recidivism. However, false narratives devoid of facts from outside agenda-driven entities and individuals unwilling to acknowledge Arizona’s successes aren’t worth the time it takes to scan their fiction.
— Bill Montgomery is the Maricopa County attorney.
A lingering “tough-on-crime” mentality in Arizona is hampering efforts to reconstruct the state’s criminal justice system.
Several measures introduced this session address fines, fees and probation, but affording more discretion to courts during sentencing and eliminating mandatory minimums has eluded those pushing for a “smart on crime” approach, a buzzword used by a wide range of groups seeking change.
That approach, according to some lawmakers and advocates for change, has been resisted by conservative politicians and prosecutors who have been elected with the help of scare tactics for generations.
Rep. David Stringer (R-Prescott)
Rep. David Stringer, R-Prescott, said though many of his colleagues are interested in discussing changes to the criminal justice system, not all are open to it. After all, he said, Republicans have run on a “tough-on-crime” platform for years.
“There’s resistance to reform and I have to say running on cracking down on crime, tough on crime, these have been Republican issues for a long time. They’ve helped Republicans get elected,” he said. “But I’m distressed that a lot of my colleagues continue to run on this issue.
“Some of them don’t know how to talk any other language.”.
Caroline Isaacs of the American Friends Service Committee, a Quaker group focused on criminal justice reform, said GOP legislators haven’t gotten out in front of the issue because of a “lingering and false belief that this is a political liability.”
Stringer and Isaacs are frustrated with how slow the process has been in Arizona, especially given that more conservative states, like Louisiana, tackled the issue in just one session.
But not everyone believes greater changes are needed.
Maricopa County Attorney Bill Montgomery said Arizona is already ahead of the rest of the country.
On March 16, the Arizona Prosecuting Attorneys’ Advisory Council said in a news release accompanying the 2017 “Prisoners in Arizona” report that the state has been a “front-runner in criminal justice reform” for 20 years.
The report says the state prison population has declined by 1.1 percent since June 2016, “a trend that is (in) sharp contrast to an annual uptick in prison population from July 2012 through April 2016.”
The researchers also determined that the number of first-time offenders incarcerated decreased by 3.3 percent from 2011 to 2017 because of intervention programs to treat drug and alcohol addiction or mental health issues, which Montgomery said prosecutors have championed for years.
Bill Montgomery
Montgomery called other ideas being pushed by the smart-on-crime crowd “pet projects” that are “based on myths and rhetoric.”
“Most of the folks who call criminal justice reform ‘reform’ – all they’re really out to do is arbitrarily adjust sentencing statutes or adjust truth-in-sentencing with no data to support it,” he said.
But advocates for change say those adjustments will make a real impact, and they point to Montgomery and other county attorneys as one reason why the effort has stalled statewide.
Disagreement
Groups all along the political spectrum agree something must be done to improve Arizona’s criminal justice system. But they haven’t yet reached a consensus on what specifically should be done.
Progressive groups, such as the American Civil Liberties Union and American Friends Service Committee, and conservative groups, like Families Against Mandatory Minimums, are calling for changes to the state’s sentencing statutes.
The groups have also called for an end to mandatory minimum sentences, especially for drug offenses.
But Montgomery scoffed at their ideas of “so-called reform,” arguing that they’re trying to overlay other states’ solutions on Arizona.
He said the reality is other states either face different problems or are simply implementing measures Arizona embraced years ago, such as diverting first-time drug offenders to treatment instead of prison.
“And because we weren’t part of the so-called reform wave, we don’t get credit for what we did,”
Montgomery said.
He said the first step in the public policy conversation must be to define the problem and determine what resources are needed to solve it.
“For so many, and this is what has been a frustration of mine, they don’t understand the problem,” he said.
“We need to come to a common understanding of the criminal environment we actually have, the types of crimes we have to deal with, and then what makes for the most effective policy. … What do we want to define as success for the criminal justice system in Arizona?”
For Montgomery, success would mean reducing recidivism, a goal he shares with Gov. Doug Ducey.
Ducey spokesman Daniel Scarpinato said the governor approaches the issue from a public safety perspective. The governor’s priority, he said, has been to provide people who have already served their time with opportunities to get back on their feet by helping them get jobs, government benefits, and treatment.
Those efforts, Scarpinato said, will help reduce recidivism rates and the state’s prison population, while still “making sure we’re enforcing the rule of law and still being tough on crime.”
Montgomery also said he wants more punitive sanctions in place for drug traffickers to deter them.
Will Gaona (Photo by Katie Campbell/Arizona Capitol Times)
And on that point, his views and those of change advocates, like the ACLU’s Will Gaona, could not be more different.
According to the Arizona Prosecuting Attorneys’ Advisory Council’s updated Prisoners in Arizona report, 84 percent of state prisoners are repeat offenders.
Gaona said it “demonstrates the failure of our criminal justice system” – those offenders knew they could go back to prison, yet that didn’t stop them from committing new crimes.
“Obviously, this is not an effective intervention, and we’re just going to try it again for longer periods of time for something that has already been demonstrated not to work,” he said.
Legislation
Lawmakers introduced more than a dozen bills this session seeking to improve the criminal justice system. Few of them, however, went anywhere in the legislative process.
For example, Stringer introduced HB2303 seeking to reduce the penalties for possession of substances such as marijuana, heroin and cocaine, from felonies to misdemeanors. It would have also expanded the list of mitigating factors considered at sentencing to include documented mental illness, addiction, trauma resulting from military service and victimization.
Several bills introduced in both chambers, like HB2621 by Rep. Tony Rivero, R-Peoria, or SB1094 from Sen. Martin Quezada, D-Glendale, sought to address the expungement or sealing of criminal records.
None received a committee hearing.
Other bills were more successful.
Right on Crime, a campaign affiliated with a conservative Texas think tank, introduced a package of five bills this session that among other things, seeks to give the courts greater discretion to impose alternative sanctions, like community restitution, rather than hefty fines or prison time. It also seeks to establish a list of factors the court must consider when vacating and setting aside convictions, and makes administrative fixes to the intensive probation program.
Though a similar package of bills was introduced in 2017, the effort failed after Rep. Eddie Farnsworth, R-Gilbert, refused to hear the legislation in the House Judiciary Committee.
This session, nearly all of the bills, which were written and vetted by the Arizona Supreme Court’s Task Force on Fair Justice for All, were unanimously approved by the House and have faced relatively little opposition in the Senate.
Kurt Altman
As Right on Crime Director Kurt Altman, sees it, the bills have been successful so far because they seek to halt unfair penalties on the poor and reduce recidivism, ideas he thinks the GOP and Ducey can get behind.
Altman, a former county and federal prosecutor whose practice now includes criminal defense, said while the measures don’t make any major changes to the state’s sentencing statutes, they’re still effective.
Large-scale changes to the criminal justice system, such as changes to sentencing laws, will take more time and buy-in, he said.
“It’s part of the long-term process,” he said. “Are we there yet in Arizona? Probably not. But we’re trying to get there.”
That may be easier said than done.
Advocates have highlighted that there’s still a strong resistance from prosecutors, like Montgomery, who might stand to lose some power if more moderate measures successfully move through the Legislature.
Stringer said one of the problems he has faced is that despite proposing what he called “modest reforms,” he said there is still “tremendous resistance.”
“Some of the prosecutors are very, very adamantly against it because the current system gives prosecutors a tremendous amount of discretion,” he said.
He declined to name which prosecutors are opposed to making greater changes.
Gaona said like in other conservative states, elected prosecutors are working to derail efforts to improve the criminal justice system. In Arizona, he said, the biggest obstacle is Montgomery.
“Prosecutors take issue with criminal justice reform because it often reduces the power that they hold.” he said. “Looking at just his actions, it’s pretty clear that he’s an opponent to reform.”
He said Montgomery drastically amended one of the Fair Justice for All bills, HB2312, which establishes factors the court must consider when determining whether to set aside a conviction, despite having helped draft the original bill.
The original language of the bill, Gaona said, would have led to “real second chances,” and would have helped reduce recidivism by giving ex-offenders the opportunity to have their criminal records sealed.
Gaona said Montgomery’s office is also a proponent of a bill that would create new mandatory minimums for heroin and fentanyl possession – despite touting in public that Arizona “doesn’t incarcerate low-level drug offenders.”
But he pointed out that the state has already tried that with methamphetamine, and Gaona said the Arizona Prosecuting Attorneys’ Advisory Council’s own report seems to suggest that has not been successful in preventing trafficking.
The report indicates that three of the top six offenses for which people are incarcerated are drug related.
At the same time, during a roundtable presentation of the report, Montgomery noted the amount of methamphetamine seized near the border has increased. Increasing amounts of heroin and fentanyl are also trafficked through Arizona.
And Montgomery says tougher sentencing laws are the answer.
Yet the data says otherwise, Gaona said. More people have been incarcerated for related offenses, according to the data, but the amount of drugs trafficked hasn’t been negatively impacted.
Gaona said that indicates to him that drugs continue to be a major driver of incarceration.
Montgomery rejected any suggestion that he and his fellow prosecutors have been standing in the way, calling that “nonsense.”
“I really believe that those who keep pushing that narrative do so because they can’t accept the fact that their ideas are bad,” he said.
If prosecutors had control over the process, he added, drastic changes to Arizona’s asset forfeiture laws never would have passed last session.
Farnsworth’s HB2477 increased the standard of evidence required for authorities to seize property and strengthened reporting requirements. It was nearly universally opposed by law enforcement.
Montgomery argued this is simply what the public policy process looks like – “like making sausage.”
“Prosecutors don’t have a vote at the Legislature,” he said. “We don’t sit on committees. We don’t sponsor bills. We don’t get to vote on the floor. They want to say that there’s a wall. There’s not a wall. It’s a gate. And it’s a gate that requires careful analysis and review because we can’t gamble on public safety.”
The Arizona Supreme Court from left are Justices Bill Montgomery, John Lopez, Ann Scott Timmer (vice chief justice), Robert Brutinel (chief justice), Clint Bolick, James Beene, and Kathryn King.
Arizonans have no constitutional right to block lawmakers from cutting – or even eliminating – taxes, the Arizona Supreme Court ruled Friday.
In an 18-page decision, the majority of the court acknowledged the framers of the Arizona Constitution gave broad powers to voters to not only create their own laws but to review – and veto – those approved by elected legislators.
But Justice John Lopez, writing for himself and four others, said that right does not extend to measures for the “support and maintenance” of the state.
Attorneys for Invest in Arizona never really contested the idea that a referendum could not challenge a measure to increase taxes.
That’s because such a move, if backers get sufficient signatures, would hold up enactment until a public vote. And that could deny government the dollars needed to operate.
In this case, however, attorney Andy Gaona, representing Invest in Arizona, pointed out to the court that the measure approved in 2021 by the Republican-controlled legislature actually cut tax revenues by $1.9 million, and in a way to largely benefit the wealthiest.
Put another way, he told the justices the only thing that his organization sought to send to the ballot for voter review was the desire of GOP lawmakers and Gov. Doug Ducey, who signed the measure, to forego revenues that otherwise would flow into state coffers. Gaona said holding up the tax cut plan and giving the public a chance to review it – including who benefits – would not have affected the ability of state agencies to do their jobs.
Friday’s ruling, however, shows the majority were unwilling to constrain lawmakers that way.
Until last year, Arizona had a “progressive” income tax, with the rate tied to earnings.
So, anyone with a taxable income up to $26,500 a year paid a tax rate of 2.59%, with the earnings number doubled for married couples filing jointly. That rate increases in steps, to the point where taxable earnings on individual earnings above $159,000 were taxed at 4.5%.
The law imposed a single 2.5% tax rate on all incomes beginning in 2025. Legislative budget staffers peg the revenue loss at $1.9 billion a year.
Ducey has repeatedly sought to portray the measure as providing a tax cut of about $300 a year for the “average Arizonan.”
But an analysis of the package by legislative budget staffers puts the annual savings for someone making between $25,000 and $30,000 a year at $11. That increases to $96 for those in the $50,000 to $75,000 taxable income range.
At the other extreme, taxpayers with income of between $250,000 and $500,000 would see an average $3,071 reduction in what they owe. And that increases to more than $7,300 for those earning from $500,000 to $1 million.
Invest in Arizona, the successor to the group that got voters in November 2020 to approve Proposition 208, an income tax surcharge on the wealthy, gathered the necessary signatures on petitions to put the measure on hold until votes can decide whether to ratify or reject it.
That led to a legal challenge by the business-oriented Free Enterprise Club, citing that “support and maintenance” provision in the constitution – the one the majority accepted.
David Lujan, director of the Arizona Center for Economic Progress, one of the organizers of the petition drive, said the ruling is disappointing.
“The income tax cuts passed by the legislature last year will have a devastating impact on our state’s future,” he told Capitol Media Services. And then, Lujan said, there’s the analysis that those cuts “disproportionately benefit only the richest 5%.”
He also said the permanent reduction will make it “extremely difficult to adequately fund education or other critical state needs.”
But the problem is even more complex than that.
Theoretically speaking, future lawmakers could undo the tax cuts if collections do not keep pace with expenses.
Only thing is, a separate constitutional provision says it takes a two-thirds vote of both the House and Senate to enact new taxes or even to rescind prior reductions. And that has never happened.
“We chose to do the referendum because we knew that once tax cuts go into effect, there is little chance of reversing them later,” Lujan said.
Nothing in Friday’s ruling keeps any group from gathering signatures to put a tax hike on the ballot.
Even that, however, is not simple.
Voters did approve Proposition 208 in 2020 to impose a 3.5% surcharge on income of individuals making at least $250,000 a year, with the more than $900 million it was estimated to raise earmarked for K-12 education. But the Supreme Court voided the levy after concluding there was no legal way to spend the dollars collected without exceeding a constitutional limit on education spending.
And there’s something else.
Republican lawmakers put a measure on the November ballot that would put an additional hurdle in the path of those seeking voter-approved tax hikes. Proposition 132, if approved, would require any such future levy to be approved by 60% of those who vote, versus a simple majority.
“We are making it increasingly difficult to raise revenues in this state,” said Lujan. “And that is going to be a big problem when we have our next economic downturn.”
There is another possible workaround.
Invest in Arizona or some other group could ask voters to amend the section of the constitution the court said Friday denies voters the right to overrule changes in tax law.
Such a change would spell out that the public does get the last word when lawmakers are cutting taxes. But the earliest that could go to the ballot is 2024.
Not everyone on the high court agreed with Lopez.
Justice Bill Montgomery, writing for himself and Justice James Beene, said the history of the creation and early interpretation of the Arizona Constitution convinces them that the framers never intended to create a blanket immunity protecting legislatively approved tax measures from voter purview.
“A categorical exemption from the referendum is a categorical limitation on a power reserved by the people in (the constitution) that has no support in the historical record,” Montgomery wrote.
More to the point, he said that only those revenue measures “immediately necessary” for state operations cannot be referred to the ballot.
In this case, he said, there was no finding by lawmakers the tax cut was immediately necessary. And Montgomery noted it passed without a two-thirds vote of either the House or Senate, something that would have designated the tax cut as an emergency.
Friday’s ruling pleased Scot Mussi, president of the Free Enterprise Club, which successfully quashed a public vote.
“The referendum process was never meant to be used to block the legislature’s ability to appropriately budget and set tax rates,” he told Capitol Media Services. “Now the court has affirmed that position.”
I write to take exception to the op-ed about the nomination of Bill Montgomery to our state Supreme Court, written by Mark Harrison and published on Aug. 16. I do not know Harrison, but I have known Montgomery in various capacities for many years. Having written a graduate thesis on U.S. Supreme Court nominees and nominations, I’d also like to think I know something about judicial qualifications and history.
First, Harrison writes a great deal about the need for diversity on our Supreme Court – in a short op-ed, Harrison uses the word three times. Apparently, however, diversity only means the same experience most others have had with political viewpoints only Harrison shares – definitions of diversity new and unique to any dictionary. Indeed, it has been a longtime practice of many presidents to think diversity actually also
Seth Leibsohn
means diversity of experience and not exclusively appointing judges who see things through the lens or qualification of having been a judge on a lower court. This would be true of those who’ve made our judicial history as especially magnificent as it is, including great jurists from John Marshall to Louis Brandeis to Robert Jackson (whom Arizona’s own William Rehnquist clerked for). They, and many others, had not previously sat as judges prior to their service on the U.S. Supreme Court. Looking at the law, at various kinds of cases and controversies, simply does not require, and never did, prior judicial experience. After all, the vast majority of our nation’s law professors, those who teach the law, have rarely if ever sat as any kind of judge. Diversity should include diversity of experience and views of the law from various perches, not just one. Most presidents and historians (never mind law schools) have understood that.
Second, Harrison completely bypasses the last decade of good and noble work Montgomery has engaged in as a public servant. The fact that people have the luxury to forget the shape of county government when Montgomery first took office at the end of 2010 is a testament to how far he has brought the County Attorney’s Office and the dramatic shift in how county leaders now work together instead of sue each other. Additionally, the failure of the media to report on all the support, from past state bar presidents, criminal defense attorneys, formerly incarcerated offenders, and community leaders from various points on the political spectrum, permits critics to paint a false picture of Montgomery’s qualifications and accomplishments.
Finally, the focus on the new Commission on Appellate Court Appointments as the reason the governor can now appoint Montgomery should be seen as a correction, not a criticism. As one of the people listed as a reference for Montgomery, and the friend of several others, I can tell you that the biggest difference between the current composition of the Appellate Court Commission and the previous iteration was just how serious they took their work. During the previous vacancy, I was never contacted nor were many others. Had I been and had those who sent in letters of support been contacted, the various criticisms and concerns raised about Montgomery’s candidacy could have been readily addressed. This time, Commission members charged with doing their due diligence actually did their job. I was asked about a number of concerns that my personal experience with Montgomery gave me the opportunity to directly address. That should have happened the first time.
Fortunately, a much more thorough and fair review occurred during this current vacancy process and now Montgomery is where he should be, before the governor for consideration to serve us as an associate justice. Montgomery is a West Point Graduate, decorated Gulf War Veteran, magna cum laude graduate in the top 10% of his class from the Sandra Day O’Connor School of Law, and a distinguished public servant who spends almost all his non-family free time assisting charitable endeavors. His service, his experience, his accomplishments, along with his commitment to transparency and access to the media and public, make him a perfect candidate for our State’s highest court.
Seth Leibsohn is a radio host on KKNT-AM, a senior fellow at The Claremont Institute and chairman of notMYkid.
Gov. Doug Ducey now faces a moment of truth that will have a major impact on his political legacy. A moment that will tell us whether he believes in the appointment of judges based on merit as required by the Arizona Constitution. A moment that tells us whether he believes in a Supreme Court that is diverse and nonpartisan.
It was reported in the media that Ducey supported expansion of the Supreme Court from five to seven members so he could add appointees who would add diversity to the court and presumably share his views. The governor appointed two well-qualified men to fill the additional seats.
Mark Harrison
However, it was more recently reported in the media that the governor added four new members to the Commission on Appellate Appointments (two Republicans and two independents, one who was a former Republican precinct committee person) so that he could make certain that County Attorney Bill Montgomery, one of the applicants for the current vacancy on the Supreme Court, would be on the list sent to him by the commission. This, despite the fact that Montgomery was soundly rejected by the commission four months ago.
In an op-ed article last month, I joined 20 past State Bar of Arizona presidents and called the governor’s attention to the fact that the Constitution requires the Nominating Commission and the court to be diverse and nonpartisan and that the overriding consideration in appointments to all of our courts must be merit. The views of commissioners reported in the media following Montgomery’s first appearance before the commission indicate that he was regarded as one of the least qualified of those seeking an appointment to the Supreme Court. Significantly, nothing in Montgomery’s record changed between his first appearance and his appearance before the commission last week.
Despite this history, Montgomery was nonetheless included on the list sent to the governor. The only change between Montgomery’s first and second appearance was in the political composition of the commission – all of the governor’s recent appointees voted to include Montgomery on the list sent to the governor.
Arizona has a judiciary recognized nationally for its excellence. As the result of the merit selection system, Arizona has been spared the unseemly partisan elections fueled by millions of dollars of special interest money. If the governor wants his legacy to reflect his commitment to merit selection and to an impartial, nonpartisan judiciary, he will appoint one of the several highly qualified candidates on the list sent to him – one without Montgomery’s political baggage and lack of appellate experience.
Mark I. Harrison is an attorney with Osborn Maledon in Phoenix.
Two state lawmakers hope to do what has proven politically impossible for decades: Convince colleagues to consider sentencing reform.
Reps. David Stringer, R-Prescott, and Kirsten Engel, D-Tucson, are heading a group to look at why Arizona locks up a higher proportion of people than all but four other states.
“You have to go to the Deep South to find higher rates,” Stringer told Capitol Media Services. And Stringer, a former criminal defense attorney, questions whether having more than 42,000 people in state prisons is justified.
“People in Arizona are not that bad,” he said.
Part of the issue, Stringer said, is strictly financial: The budget this year for the state Department of Corrections alone tops $1 billion, more than 10 percent of total spending.
Rep. David Stringer
But Stringer said his experience makes him question whether many of the longer sentences imposed, particularly for non-violent crimes, do more harm than good.
If history is any indication, Stringer and Engel will get a fight from prosecutors.
Bill Konopnicki, a Safford Republican who was a state representative, worked for years more than a decade ago, saying the state could not afford the burgeoning costs of its prison system. His efforts included reclassifying some crimes now considered felonies to be misdemeanors.
That incurred the wrath of fellow Republicans, to the point where then-Sen. Ron Gould, R-Lake Havasu City, used his position as chair of the Senate Judiciary Committee to ensure that any such measures did not even get a hearing.
Former Rep. Cecil Ash, R-Mesa, had no better luck in 2010 with his own special legislative committee which also looked at sentencing reform. Prosecutors successfully blocked those from becoming law.
Yavapai County Attorney Sheila Polk, from Stringer’s home county, said she is willing to listen.
“I am always interested in ideas on how to best protect the public from criminal offenders, ensuring safe and crime-free communities,” she said.
Bill Montgomery
Maricopa County Attorney Bill Montgomery said the position he will take “depends on whether this is a data driven effort without faulty assumption or another preconceived, rhetoric driven effort.”
“It could be a chance to highlight what Arizona has been doing right and where we can and need to do better,” he said. Montgomery said he wants to focus on reducing recidivism, calling it “the most promising approach to evaluating options without jeopardizing public safety.”
But don’t look for Montgomery to support changes in sentencing.
“Those currently incarcerated are those who should be there,” he said. “There’s no objective data that establishes otherwise.”
Stringer said it may be true that people who commit certain crimes should go to prison.
“But almost all of them come home,” he said. “So when do they stop needing to be behind bars?”
He said lawmakers need to look at the sentences that judges are required to impose.
“Very young people are getting just horrendous sentences, 10-year sentences for fairly minor drug stuff, not heavy dealing,” he said.
“Anything more than two or three years in jail and you come out a changed man,” Stringer continued. “And it is completely self-defeating because we end up with a very high recidivism rate.”
Rep. Kirsten Engel
So what are the options?
“I happen to be a big proponent of things like work release,” Stringer said.
“I don’t think people who break the law should get off scot free,” he said. “I think they ought to make it up in some way to the community.”
More specifically, he wants to ensure the focus is on rehabilitation.
“We are shooting ourselves in the foot if we are just locking people up,” Stringer said.
He said there’s no question but that crime is a social harm.
“But vengeance also carries a cost,” Stringer said, tying up resources “that should be going to other worthy causes.
Engel has her own perspective on what she sees as the negative consequences of the state’s high incarceration rate for non-violent offenders.
“Incarceration makes it harder to get and hold a job, impoverishes families and hurts the economic prospects of entire communities,” she said. “We can do better.”
The Sentencing Project lists Arizona’s incarceration rate at 596 people for every 100,000 residents. That compares with a nationwide figure of 458.
It lists only Louisiana, Oklahoma, Alabama and Mississippi with higher rates.
Stringer is careful to say that the focus of the committee will be on nonviolent offenders. And at least part of the reason for that is political: He believes it’s less likely to provoke a knee-jerk reaction against any proposals.
“That’s always how to crush reform,” Stringer said.
“They say, ‘What are you going to do, put criminals on the street, murderers and rapists on the street?” he continued. “No, we’re making it very, very clear that we’re only looking at non-violent offenders.”
He said it might just be that the only thing the panel can agree on is expansion for treatment of drug offenders.
Gov. Doug Ducey has avoided the potentially hot-button issue of sentencing reform.
But the governor has proven a stronger proponent of providing second chances to those who have done their time as a method of preventing recidivism.
Last year the governor expanded the concept of “community corrections,” adding a new facility in Maricopa County to deal with those who have been let out of prison but commit a minor breach of their release conditions. These facilities provide an alternative to being sent back to prison and even allow those offenders to keep their jobs.
More recently the governor enacted a “ban the box” policy for employment at state jobs, eliminating any questions on initial job applications about whether a person has a criminal record. The governor said that will help ensure that people are not eliminated from even being considered.
And he made a deal with Uber, a ride-sharing company, to help former inmates get to their jobs if public transit is not available. The company and the state each are putting up $5,000.
Walt Blackman PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES
A 2020 legislative effort to expand early release opportunities for prisoners kicked off Monday morning with exhortations from advocates to think beyond incremental steps and warnings from the Arizona Department of Corrections that it doesn’t have the budget or staff to handle big changes.
Rep. Walter Blackman, R-Snowflake, was stymied in his attempts to pass legislation this session that would allow prisoners to earn more time off for good behavior. While his HB 2270 didn’t rate a committee hearing, he’s now leading an interim committee working on new legislation to give prisoners the ability to earn time off their sentences by completing programs aimed to keep them from reoffending.
“When a person comes into the system and becomes an inmate, they are our responsibility then,” Blackman said. “We have to make sure we are giving folks tools to succeed.”
Other states give prisoners two ways to earn time off their sentences, said Lauren Krisai, a senior analyst with the national Justice Action Network. They can earn “good time” for behaving and avoiding disciplinary actions and “earned time” for participating in programs like GED classes or anger management that are designed to help returning prisoners integrate into society.
“If you follow the rules, than you can get good time credits,” Krisai said. “For earned time, you have to do something proactively”
Arizona offers only good time, at a rate of one day for every six days served. Gov. Doug Ducey signed a bill earlier this year that will allow some nonviolent drug offenders who have completed drug treatment programs to qualify for three days off for every seven served.
However, the Arizona Department of Corrections does not employ enough counselors or officers to provide the drug treatment programs required to earn additional time off sentences required by that new law, said Karen Hellman, the department’s division director for inmate programs and reentry.
She said it was “safe to say” the rehabilitation programs, which make up somewhere between 2% and 12% of the department’s $1.2 billion budget, would need more staff to implement any large-scale efforts to expand earned release programs.
“We do not have the capacity to treat everyone who needs it,” Hellman said.
Rep. Bret Roberts, R-Maricopa, said he wanted to see more information about the costs of implementing changes to the state’s earned-release programs. Blackman said he plans to ask Krisai and her colleagues at the Justice Action Network to model costs for Arizona.
While implementing new programs would likely have an initial cost, Krisai said states realize savings over time. She said Republican-led states including Oklahoma, Tennessee and Kansas have changed their sentencing laws to reduce time spent in prison without negative consequences.
“When you allow inmates to earn additional credits, that means they’re getting out earlier,” Krisai said. “That’s fewer dollars that are being spent on the prison or the prison bed that person was taking up.”
And providing treatment for inmates with early release as an incentive boosts morale in prisons, she said. Instead of waiting around to be released, they’re actively working on rehabilitation.
Rep. Ben Toma, R-Peoria, said he sees a need for incentives in the prison system. The corrections system is supposed to serve as a consequence to people who commit crimes, he said, but it also needs to work on rehabilitating inmates.
“We’re pretty good at the punishment part of it, perhaps a little too good,” Toma said. “We’re pretty good at the stick thing. Not too much about the carrots.”
Legislative efforts to change criminal justice laws repeatedly stall at the Capitol, where criminal justice advocates say prosecutors carry an outsize influence on lawmakers in the Republican majority. Blackman said Maricopa County Attorney Bill Montgomery declined an invitation to speak publicly to his committee Monday morning, but instead planned to meet privately with Blackman later in the day.
Montgomery is one of several finalists for a vacant Supreme Court seat, and Blackman said he’s spoken with several people interested in serving as county attorney should Montgomery be appointed to the Supreme Court who are interested in pursuing changes to sentencing laws.
“I do not need Mr. Montgomery’s permission to do what I plan to do,” he said.
Caroline Isaacs, Tucson program director of the American Friends Service Committee, implored lawmakers to choose the path forward that will help the most people and make it politically feasible, rather than taking incremental steps just to say they’ve gotten something done.
“We have done incremental,” Isaacs said. “We have continued to do incremental, but there’s no question it is incumbent on us to do the most bold and wide-reaching reform that we can.”
Clint Bolick (Capitol Media Services file photo by Howard Fischer)
Supreme Court Justice Clint Bolick urged Gov. Doug Ducey to name Maricopa County Attorney Bill Montgomery to the U.S. Senate just days after John McCain died.
In a text message sent to Ducey obtained by Phoenix New Times, the judge called Montgomery “one of the few who could fill Sen. McCain’s shoes,” and someone “who is supported by all parts of the GOP, yet unfailingly conservative.”
Bolick told Capitol Media Services Tuesday there was nothing improper about his endorsement of Montgomery.
He acknowledged that the rules that govern the conduct of judges prohibit them from publicly endorsing candidates for public office. But the text, he said, was meant to be a private message to Ducey.
Bill Montgomery
But attorney Tom Ryan, a Chandler attorney who has been involved in political issues and legal disputes over conflicts of interest by public officials, said that ignores the fact that Bolick sent the text from his court-issued cell phone. And that made anything he sent from there a public record, whether he intended that or not.
Even if there was no technical violation of the rules that govern judicial conduct, Ryan said Bolick should not have weighed in. He said the glowing words about Montgomery create an appearance of favoritism for the county prosecutor that would cause concern by any defense attorney who is arguing a case before Bolick.
Bolick, however, brushed aside any such concern, citing his record on the bench since being appointed by Ducey in 2016.
“I think Bill would be the first to note that his record before me is far from perfect in terms of my voting for him,” Bolick said.
Anyway, the judge said, this wasn’t a political “campaign.” Instead it involved the governor fulfilling his legal duty to fill vacancies created in the Senate.
Ryan dismissed that argument, calling the appointment of a senator — who in this case had to be a Republican like McCain — an “overtly political act.”
The text, sent the afternoon of Aug. 27, starts with an apology “for joining what I am sure is a tsunami of unsolicited advice.”
“Wicked smart principled, West Point, very modest beginnings, young enough to be there for a long time,” Bolick wrote. “Can work across the aisle.”
Bolick said he was acting on his own and not on any request by Montgomery, who he said is “very much in the mold of Jon Kyl.”
Doug Ducey
“Clint — thank you,” Ducey texted back.
“Always value your advice and recommendations,” the governor continued. “I share your admiration of Bill. He is one of our finest.”
As it turned out, Ducey named Kyl to serve until the 2020 election.
Kyl, however, may not remain that long.
In being appointed, however, Kyl, who had served in the Senate for 18 years before retiring at the end of 2012, vowed only to serve through January. That enabled him to vote to confirm Brett Kavanaugh to the U.S. Supreme Court after having been tapped in his private practice to help guide him through the confirmation process.
Kyl’s press office in Washington did not respond to a query about the senator’s intentions. But if Kyl does quit, Ducey will have to find someone to take his place.
Montgomery on Tuesday sought to distance himself from the whole issue.
“I was one of many who supported Sen. Kyl’s appointment and did not ask, seek, or have any conversations about being appointed,” he told Capitol Media Services. And he said too much was being made of what Bolick had done, calling it “an unsolicited private email making a recommendation that didn’t happen.”
And what if the seat were to again become vacant?
“My best answer is that I’m the county attorney until I’m not,” Montgomery responded.
Bolick said he did not understand the fuss over the text.
“I don’t think this is really any different than me expressing a view about an appointment to the governor personally,” he said. “Judges remain citizens.”
Anyway, Bolick pointed out, the rules do not create an impenetrable wall between judges and politics.
“Judges are allowed to make political contributions and often do,” he noted, contributions that candidates have to report in publicly available campaign filings.
“Judges are allowed to privately express their views on candidates for office,” Bolick continued. “I don’t think the fact that a private communication is made public changes that analysis.”
And Bolick said what he did is “one big step removed from that” because Montgomery was not a “candidate” running for office.
There was no immediate response from Ducey about whether he thinks it’s proper for a sitting state Supreme Court justice to be making recommendations for appointments to political office.
Bolick said no one has ever suggested that sitting justices cannot express their opinions.
He pointed to an interview U.S. Supreme Court Justice Ruth Bader Ginsburg did in 2016 with the New York Times — before the presidential elections — where she joked that if Donald Trump became president it could be time to move to New Zealand.
“I can’t imagine what the country would be with Donald Trump as president,” she said.
And Sandra Day O’Connor, watching election returns in 2000 at a party with friends, said, ”It’s over” when the networks were saying Democrat Al Gore had won the election.
Her husband, John, offered the explanation that his wife wanted to retire and was not interested in having her seat filled by a Democratic president. But that did not stop O’Connor from becoming the fifth vote on the nine-member court to halt the recount of Florida ballots, meaning Republican George W. Bush would be elected.
Years later, O’Connor appeared to have some second thoughts, suggesting that perhaps the court should not have taken the case in the middle of the election counting.
The next Maricopa County Attorney will come from a pool of eight applicants, all of whom say they will run in 2020 if appointed.
The deadline to apply for the appointment to replace the county’s former chief prosecutor, Bill Montgomery, who was appointed Sept. 4 to the Supreme Court, was Sept. 18 and the county website posted the eight candidates who applied.
Rachel Mitchell
Acting-County Attorney Rachel Mitchell, the sex crimes prosecutor who questioned Christine Blasey Ford during U.S. Supreme Court Justice Brett Kavanaugh’s Senate confirmation hearing last year, Jon Eliason and Gina Godbehere are the only candidates who currently work in the Maricopa County Attorney’s Office.
The remaining applicants are Allister Adel, the former-executive director of the Maricopa County Bar Association; Lacy Cooper, a U.S. Attorney; Chris DeRose, the former-appointed Maricopa County Clerk who lost in the 2018 Republican primary; Rodney Glassman, serial candidate who previously ran unsuccessfully for the Arizona Corporation Commission in 2018; and John Kaites, an attorney who ran for Arizona Attorney General in 1999, but lost in the primary to Tom McGovern.
All eight applicants vowed they would seek election in 2020 if appointed. Mitchell said in her application she would run even if not appointed, and DeRose filed to run with the County Recorder’s Office on September 10. Godbehere said she already has a campaign team assembled.
The ACLU of Arizona, along with 15 advocacy organizations and lawmakers, sent a letter to the Maricopa County Board of Supervisors on Wednesday listing off their qualifications for the new County Attorney, and also asking that they appoint someone who will not seek election.
“Voters should be allowed to fairly decide who their next county attorney will be. Status as an incumbent will give the interim county attorney an unfair advantage in a contentious race when the voters of Maricopa County will not have had a say in their appointment,” the letter stated.
While the ACLU does not support or oppose candidates, the group actively campaigned against Montgomery’s eventual appointment to the state Supreme Court, even playing a contributable role in his failure to advance on the governor’s interview list on his first attempt at the job.
The candidates, as part of the process, will now be vetted by a seven-member citizen’s committee appointed by the Board of Supervisors and on October 1 will send recommendations. The Board, however, does not have to accept the recommendation and can appoint any of the eight applicants.
Part of the vetting process involves – among other things – reviewing resumes, letters of recommendation, and questionnaires and maybe even interviewing candidates.
Glassman chose Senate President Karen Fann as a reference, Kaites chose his 1999 political opponents, McGovern and former-Gov. Janet Napolitano as two of his, Adel picked Justice Clint Bolick as one of hers, and Mitchell picked U.S. Attorney Michael Bailey as one of hers, to name a few.
Whomever the Board appoints within the coming weeks will likely be considered the GOP favorite in the 2020 election and face off against one of the Democratic candidates who have filed to run: Julie Gunnigle, Robert McWhirter, Ryan Tait or Tamika Wooten.
In 2016, Montgomery won in the slimmest margin for that race in years only edging out political newcomer – at the time – Diego Rodgriguez, who now represents Legislative District 27 in the Arizona House.
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
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.
Maricopa County Attorney Bill Montgomery is one of 11 applicants for a spot on the Arizona Supreme Court who will move on to the interview process with the Commission on Appellate Court Appointments.
The 14-member commission met today to begin vetting the applicants vying for the seat held by Justice John Pelander, who will retire March 1.
Although no one who attended the public meeting spoke against any of the applicants, the AZ Mirror published a scathing letter from Mikel Steinfeld, president of the Arizona Attorneys for Criminal Justice, saying Montgomery isn’t fit to be a Supreme Court justice.
“. . . Montgomery’s background shows that he lacks traits necessary to serve in this capacity: He can’t fairly consider misconduct allegations, is driven by ideology and lacks appellate experience crucial to the highest court in our state,” Steinfeld wrote.
Steinfeld said in his letter that it is the Supreme Court’s job to oversee attorney discipline and establish attorney rules of conduct, but Montgomery has turned a blind eye to misconduct of prosecutors in his office. Steinfeld said Montgomery’s record shows he tried to use his position to obstruct the Medical Marijuana Act, a voter-approved law, but the high court is supposed to uphold the law. And Steinfeld also criticized Montgomery for his lack of experience at the appellate court level compared to the “solid foundation of appellate experience” of the rest of the applicants.
“Montgomery is a politician first and foremost,” Steinfeld said.
Two people spoke in favor of Montgomery: Ray Arvizu and Daniel Ortega.
They both shared stories about Montgomery and expressed how willing he is to work across party lines, how he is genuine, sincere and transparent. Ortega, a progressive Democrat said the county attorney “truly cares about the community,” and will always sit down to listen what the other side has to say.
James Beene, Maria Elena Cruz, and Kent Cattani, the only repeat applicant, passed through unanimously, while Montgomery got 12 of 13 votes. The commission’s chairman, Chief Justice Scott Bales, did not vote on any of the candidates.
The other candidates who made it to the interview round in order of votes from the commission are: David Euchner and Andrew Jacobs with 11; Sean Brearcliffe and Richard Gordon with 10; Rachel Nassen with nine; Jennifer Perkins with eight; and Timothy Wright with the minimum of seven votes.
Randall Howe and Paul Avelar did not make the cut.
Once the interview process is complete, the commission must send at least three candidates to the governor, no more than two-thirds can come from the same political party. Only four of the candidates to apply are not registered Republicans and they all will advance to the interview stage: Democrats Cruz and Jacobs, Independent Nassen, and Libertarian Euchner. At least one of those names will make the short list for Gov. Doug Ducey to consider.
The interviews with the eleven applicants will each take between 20 to 30 minutes all on March 1.
Brearcliffe and Gordon contributed money to Ducey’s campaign for governor in 2018. Two of the three justices Ducey has already appointed also contributed to his prior campaign before their appointments: Justices Clint Bolick and John Lopez.
All three women applicants made it through to the next round, which is significant because Justice Ann Scott Timmer is currently the only woman on the court. Lopez is the first and only Latino to be appointed to the court, and no black justices have ever served on the state Supreme Court. Cruz would be the first Latina and first black justice if she’s chosen since she is mixed.
After March 1, the commission has 60 days to submit a shortlist to Ducey, and then Ducey has 60 days to appoint a new justice. If he fails to meet that deadline, the chief justice would get to appoint the newest member. That has never happened.
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
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.
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 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)
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
“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
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.’”
Maricopa County Attorney Bill Montgomery is one of 13 people who applied to fill an upcoming vacancy on the Arizona Supreme Court.
The Supreme Court seat that will become vacant on March 1 currently belongs to Justice John Pelander, who announced in December his plans to retire. The vacancy means Ducey gets to appoint his fourth justice to the court after appointing Bolick in early 2016 and justices Andrew Gould and John Lopez IV when the court expanded from five to seven justices in later that year.
When asked in December if he would be vying for the U.S. Senate seat that was eventually filled by Martha McSally, Montgomery said that his current position “is where God wants me to be.” The claim came after Phoenix New Times reported that Arizona Supreme Court Justice Clint Bolick had texted Gov. Doug Ducey a recommendation of Montgomery to the U.S. Senate, even before Sen. Jon Kyl was appointed as a placeholder.
Arizona Capitol Timespreviously reported Chief Justice Scott Bales, whose five-year term as chief justice expires in June, is contemplating retiring as well. That would give Ducey the chance to appoint a fifth justice.
Twelve others also applied for the vacancy. They are:
Paul V. Avelar of the Institute for Justice James P. Beene, an Arizona Court of Appeals Judge – Division I Sean E. Brearcliffe, an Arizona Court of Appeals Judge – Division II
Kent E. Cattani, an Arizona Court of Appeals Judge – Division I Maria Elena Cruz, an Arizona Court of Appeals Judge – Division I David J. Euchner of the Pima County Public Defender’s Office Richard E. Gordon, a Pima County Superior Court Judge Randall M. Howe, an Arizona Court of Appeals Judge – Division I Andrew M. Jacobs of Snell & Wilmer, LLP
Regina L. Nassen of the Pima County Attorney’s Office Jennifer M. Perkins, an Arizona Court of Appeals Judge – Division I Timothy M. Wright, a Gila County Superior Court Judge
The Commission on Appellate Court Appointments will review the applications and take comments from the public at a meeting on February 6. The commission must send at least three names to Ducey, no more than two-thirds of which can come from the samepolitical party. The governor ultimately picks the next justice.
From left are candidates for Maricopa County Attorney, Democrat Julie Gunnigle and Republican Allister Adel
Anticipation around the Democratic primary for the Maricopa County Attorney’s Office race was shaping up to be a two-person race between Julie Gunnigle and Will Knight, but when the county uploaded early ballots at 8 p.m. on August 4, Gunnigle won by a landslide.
Gunnigle’s victory, where she still maintains 60% of the vote, puts her in prime position to lead the office as the first Democrat since Charles Hyder in 1980, and the first woman elected to the seat.
But she has to take down Allister Adel, the Republican appointed incumbent first.
Adel was appointed in October by the Board of Supervisors after Gov. Doug Ducey tapped Bill Montgomery to the Arizona Supreme Court a month prior. She is the first woman to hold the top prosecutor role in the county.
Neither Gunnigle nor Adel has ever won a general election, but Gunnigle at least had prior experience running a campaign when she tried for the state House in Legislative District 15 in 2018. The two candidates seem to be doing alright in fundraising for county offices, too.
Gunnigle raised the least amount of money of the three Democratic candidates, but kept the most on hand. She brought in $122,000 overall with $48,000 left in the bank. Adel raised $268,000 and has almost $100,000 heading into the general election cycle, but she did not have a primary opponent to spend against.
This race to lead the nation’s fourth largest county prosecutor’s office is a far cry from the 2016 election that pitted now-Rep. Diego Rodriguez, D-Phoenix, against Montgomery, the Republican incumbent. Montgomery won in a special election in 2010 and then again in 2012 for his first full term, but never faced a real opponent until Rodriguez, a relative unknown at the time.
Bill Montgomery
Rodriguez mustered enough support to cut Montgomery’s margin of victory to 5 percentage points, which for a political newcomer was quite impressive given the larger Republican hold the county had at the time. Four years later, Democratic turnout has skyrocketed with the party picking up seats left and right, meaning Gunnigle very well could flip that office if she runs a similar campaign that she did for the primary, consultants say.
Roughly 210,000 more voters participated in the County Attorney primary races this year than the 2016 primary, with still tens of thousands of ballots to count.
Barrett Marson, a Republican consultant with Marson Media, said one aspect that could play well for Gunnigle’s chances is if Joe Arpaio, the convicted and pardoned former sheriff, is able to overcome his 500-vote deficit from his former chief deputy Jerry Sheridan.
“Sheriff and county attorney go hand in hand,” Marson said, adding that if Arpaio is not on the ballot then the outside spending that affected the 2016 county races won’t be the same this time around.
That outside spending he’s referring to is mostly credited to Democratic billionaire and hedge fund tycoon George Soros, whose political groups typically target county/district attorney races around the country. Soros-funded groups contributed around $1.3 million to an anti-Montgomery group called Arizona Safety & Justice. He also spent heavily to defeat Arpaio, which came to fruition.
“If they’re going to stay out of the sheriff’s race, I think that would bode well for Allister,” Marson said. “Neither Allister nor Sheridan are the same type of polarizing figures as Arpaio and Montgomery, so the risk or threat of outside money may be less.”
Democratic consultant Chad Campbell, with Strategies 360, doesn’t see it that way.
“I don’t think the other county races will have much of an impact on this race,” Campbell said.
The national conversation around criminal justice reform has put Maricopa County in somewhat of a spotlight and coupled with higher Democratic turnout could mean it’s time for a Democrat to control the office, he said.
In this Jan. 26, 2016, photo, Republican presidential candidate Donald Trump is joined by Maricopa County, Ariz., Sheriff Joe Arpaio at a campaign event in Marshalltown, Iowa. (AP Photo/Mary Altaffer, File)
Campbell said if Arpaio does pull off a win, the sheriff’s race will become a circus and will draw attention away from Gunnigle and Adel.
Arpaio being on the ballot with President Donald Trump could also play into an even higher turnout for not only Democrats, but also Latinos, which would likely play into more down ballot races.
Campbell said Trump is still the biggest factor for turnout this year, and that alone could spell victory for Gunnigle. He said he wasn’t surprised that Gunnigle won the primary or won by a lot because “she ran a better campaign” than Knight or Robert McWhirter.
“On a national level people are looking at Arizona as a state that’s changing top to bottom … the turnout [in the primary] exceeded everybody’s expectations,” he said, adding that Democratic enthusiasm in that race will only increase for the general election.
He said what will win Gunningle the election is support from suburban voters who see public safety as a priority.
“She will have some crossover appeal to those moderate Republican, suburban female voters that a Democrat will need in this county,” he said.
The turnout in Maricopa County during the 2018 election was really the first time Arizona saw a significant increase from Democrats or Democrat-leaning independent voters and after picking up two seats from Republicans in 2016 (Sheriff Paul Penzone and County Recorder Adrian Fontes), Campbell thinks Gunnigle remains in good shape four years later.
More than just the turnout having a major factor is the element that stakes cannot be higher, progressive lobbyist Marilyn Rodriguez said.
“Electing Gunnigle would end a dynasty of mass incarceration in Arizona’s largest county. Julie has shown that she can win and brings an ability to unify the support she needs from the community behind her,” she said.
Unlike Gunnigle’s predecessors, who Rodriguez said oversaw a culture of discriminatory practices and shutting the public out, “we know Julie will bring changes to the office driven by actual community voices.”
Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)
A landmark Arizona Supreme Court decision on September 16 would have been different had the court not expanded from five to seven justices in 2016.
Gov. Doug Ducey on several occasions has been accused of “packing” the state’s highest court with conservative justices. It was a criticism in 2016 when he signed the court expansion bill into law and this year when he appointed Justices James Beene and Bill Montgomery.
Ducey has now made five appointments, more than any other governor in Arizona history, and has shaped the court for possibly decades.
His choices for justices on the court and the expansion certainly affected the outcome of Brush & Nib v. City of Phoenix, a case in which a split court said the First Amendment rights of two business owners outweighed a city anti-discrimination ordinance.
Ducey appointed Justices Andrew Gould and John Lopez to fill the newly created sixth and seventh seats at the end of 2016, and both of them voted in the majority, joining fellow Ducey-appointee Clint Bolick, who was appointed in 2016 before the expansion, and Gov. Jan Brewer-appointee John Pelander, who retired March 1.
Because oral arguments in Brush & Nib took place in January, Chief Justice Scott Bales, who retired in July, and Pelander still weighed in on the case.
Bales, an appointee of Gov. Janet Napolitano, voted in favor of Phoenix along with Vice Chief Justice Ann Scott Timmer, an appointee of Brewer.
Current-Chief Justice Robert Brutinel, a Brewer appointee, recused himself, but his stand-in, appellate judge Christopher Staring, sided with Bales and Timmer. Staring, who Ducey appointed to the Arizona Court of Appeals in 2015, would have been the deciding vote, had the court stayed at five members.
Thus, had Ducey and the Republican-controlled Legislature not expanded the court, the city of Phoenix would have won the case, 3-2.
The anti-discrimination ordinance was challenged by Brush & Nib owners Breanna Koski and Joanna Duka, who do not want to prepare their custom wedding invitations and other products for same-sex nuptials.
Duka and Koski are devout Christians who believe their work is inextricably related to their religious beliefs. They have said they strongly believe a marriage is meant to be between a man and a woman, and argue they cannot separate their beliefs from their work.
But in the carefully worded decision, the justices refused to give blanket protection to all businesses – including Brush & Nib – to simply turn away customers because of their sexual orientation. Gould, writing for the majority, said it leaves open the question of whether the two women could be forced to produce other products, like place cards for receptions, which do not specifically celebrate the marriage.
And it leaves in legal limbo the ability of Phoenix and other cities to enforce their ordinances that make it illegal to discriminate based on sexual orientation.
House Minority Leader Charlene Fernandez, D-Yuma, and Senate Minority Leader David Bradley, D-Tucson, among other prominent Democrats, criticized the decision, saying it was the result of Ducey’s master plan to stack the court to ensure conservative outcomes.
“This was a narrowly crafted case that produced a narrow, limited and hopefully temporary setback for equal rights in front of Governor Ducey’s packed and politicized Supreme Court,” Fernandez said in a press release.
The court historically is unanimous in its decisions – even after the expansion – and it is especially rare for justices to land on a 4-3 split. The Brush & Nib caseis one of the examples where the dissent opinion would have been the majority without Ducey’s two additional appointments.
But it’s not the only instance. A 2018 water case with a 4-3 decision also saw Lopez and Gould vote with the majority.
In fact, since the two of them joined the court, they have been on the bench for 72 cases together, and have voted together in 71 of those. The one case where they did not agree occurred in 2017, Louis Cespedes v. State, a child abuse case where Gould authored the majority opinion, and Lopez was in the dissent.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The state cannot deny the opportunity of accused rapists to seek release on bail even if the proof is evident before trial that the person committed the crime, the Arizona Supreme Court ruled Friday.
In a 4-3 decision, the justices overturned a 2002 voter approved state constitutional amendment which said bail must be denied when someone is accused of certain sexual offenses.
Justice Ann Scott Timmer, writing for the majority, said the U.S. Supreme Court has concluded that pretrial detention without bail is permissible only when there is a “legitimate and compelling” purpose and that the restriction is narrowly focused. She and three other justices said that means defendants are entitled to be released pending trial when there is no showing that they will be a danger to the community, despite what Arizona voters approved.
But Justice Clint Bolick, in a stinging dissent for himself and two other justices, chided his colleagues for voiding the decision by voters to keep those accused of rape locked up following their arrest.
“Sexual assault is by definition a uniquely horrific act, in which a person’s most intimate parts are violated through force, coercion, or deception,” he wrote.
Bolick also pointed out that the 2002 measure requires a judge to deny bail in these kinds of cases only when the prosecution first shows that “the proof is evident or the presumption great” that the defendant did, in fact, commit the crime. And he said that is not a huge burden, as the time someone is detained without bail “will only be temporary.”
But Timmer said that’s not the issue — or the standard.
“The question here is not whether sexual assault is a deplorable crime that endangers and dehumanizes victims,” she wrote. “It is and it does.”
What is the question, Timmer said, is whether even if there is great proof of someone’s guilt whether that person “will post an unmanageable risk of danger if released pending trial.” And she said even data cited by prosecutors about recidivism rates of convicted rapists after release from prison do not provide a basis for categorical denial of bail.
Anyway, Timmer said courts can impose restrictions on those released to protect public safety, such as requiring their movements to be monitored by global positioning system devices.
Bill Montgomery
Maricopa County Attorney Bill Montgomery said it was wrong for the court to overturn the entire voter-approved state constitutional amendment.
“The Supreme Court has decided that some citizens’ initiatives are worth more deference than others,” he said.
Montgomery acknowledged the U.S. Supreme Court precedent on bail but said the Arizona justices are “hypersensitive to federal court rulings in this area.”
He also said if the justices believe that the facts in this case did not merit holding the defendant without bail, they could simply have said that. But instead, Montgomery said, they came back with a sweeping decision that will affect all future cases.
Friday’s ruling involves Guy Goodman who was charged last year with sexually assaulting a victim in 2010.
A police officer testified that Goodwin, a guest in the victim’s home after a night of socializing, touched her while she was sleeping and without her consent. The officer also said Goodman, when confronted with DNA evidence, confirmed digital penetration.
At a pre-trial hearing, Kevin Wein, a Maricopa County court commissioner, said while there was evidence that Goodman committed the offense prosecutors had failed to show that he poses a “substantial danger to other persons or the community.” And at least part of that was based on the fact there was no evidence he had committed similar crimes in the seven previous years or threatened the victim.
Instead, the commissioner set bail at $70,000, required electronic monitoring of his movements, and imposed other conditions like not possessing any weapons.
Last year The Court of Appeals overturned that decision, leading to Friday’s Supreme Court review.
Timmer said one problem with the 2002 ballot measure is it does not provide any procedures to determine whether someone charged with rape would pose a danger if allowed out on bail.
“Second, nothing shows that persons charged with sexual assault, or even a significant number, would likely commit another sexual assault or otherwise dangerous crime pending trial if released on bail,” she said, even while acknowledging it would be difficult to prove that.
What prosecutors did provide, Timmer said, are recidivism rates among sex offenders. But she brushed these aside as they concern a wide variety of sex crimes beyond rape.
About the closest meaningful data, she said, was a report that 5.6 percent of those convicted of rape reoffend within five years after release from prison. And another study said that only 3 percent of rapists on bail were arrested for any other felony while awaiting trial.
Bolick was unconvinced, saying that the Arizona constitutional provision is very narrowly focused on preventing danger to the community. And he said even the U.S. Supreme Court has concluded that rapists “are likely to commit similar crimes in the future.”
Montgomery said what’s also missing from Friday’s majority ruling is any mention of the rights of victims, which is spelled out in a separate state constitutional amendment.
As it turns out, Goodman eventually pleaded guilty while this case was pending. But the court agreed to take up the issue based on the likelihood that the legal questions about the 2002 ballot measure would reoccur.
The death row population in Arizona has largely been on the decline since 2010, following a nationwide trend observed over the past 15 years. Meanwhile, experts are at odds about the forces at play.
According to the Bureau of Justice Statistics’ most recent data – accounting for prisoners under sentence of death as of December 31, 2015 – Arizona did see its first uptick in death row inmates in five years with the addition of two inmates in 2015. But that runs counter to the slow yet steady decline of the state’s death row.
Ron Reinstein
Ron Reinstein, a retired Maricopa County Superior Court judge who now chairs the state’s Capital Case Oversight Committee, attributed the trend to ongoing challenges in obtaining the drugs states like Arizona need to perform lethal injections, the high costs of capital cases and, particularly, stronger defense performances.
Those factors resonate with an analysis of the data done by the Death Penalty Information Center.
Death rows are shrinking faster than new death sentences are imposed, the information center concluded. The data shows 28 inmates nationwide were executed in 2015 compared to 82 removed by other means – 49 new inmates were admitted that year. That means exonerations, reversals of death sentences or convictions and death by other causes – including natural death while in wait – have occurred at a higher rate than the executions sought by prosecutors.
Maricopa County Attorney Bill Montgomery (Cronkite News Service Photo by Christina Silvestri)
Maricopa County Attorney Bill Montgomery had other thoughts on what might explain the trend.
He said fewer death sentences have coincided with a decline in the sort of crimes that might lead prosecutors to seek the death penalty. With fewer murders committed – 2015 saw the lowest homicide rate since 1960, he said – a decline in death penalty cases is expected.
Reinstein questioned that suggestion.
“As far as Arizona goes, there’s Maricopa and then there’s the rest of the state,” he said.
He said Montgomery’s office “seems to be filing the same type of cases they always had, and that number – somewhere between 65 and 70 – has pretty much held true ever since the drop off” following former County Attorney Andrew Thomas’ administration, under which death penalty cases exceeded 140.
“If what Bill’s saying is true, then I think you’d see that number go down more… We haven’t seen any kind of reduction in that 65 to 70 range.”
And since roughly September 2015, according to Reinstein, only one of the nine capital cases that went to trial in Maricopa County ended with a death sentence.
That could simply be a result of the types of cases presented to jurors, he said, and could easily change if the county saw a spurt of murders involving torture or contract killings.
Prosecutors in Yuma County, for example, successfully argued for the death penalty in a case involving six victims. Reinstein said that was the first death sentence imposed outside of Maricopa or Pima counties in nearly a decade.
And that, in Reinstein’s view, seems to reflect the difficulty of convincing 12 jurors to unanimously find death is warranted.
According to the Death Penalty Information Center, most Americans prefer life without parole, an option in Arizona, to the death penalty. Public opinion may act as a deterrent to the costly battle over a death sentence or even public office.
Montgomery disagreed with that assertion.
In terms of public opinion–which still polled favorably in 2015 – he said that does not figure into whether his office seeks a death sentence.
“It’s not like we’ve got this huge data set of jury verdicts that would allow us to extrapolate a general or any kind of specific sense among the electorate,” he said.
And as for his own personal politics: “I’ve never made the death penalty a key component of any campaign or re-election as the county attorney, nor have I seen – I can’t recollect any county attorney in Arizona making that a significant issue,” he said. “I think that’s low-hanging fruit for some people to try to justify why the number of capital cases goes up or down.”
I appreciate the pioneering and independent merit based selection process for Arizona Supreme Court Justices. It is meant to be a job interview process that is above the usual political fray. So, I do have concerns about the manner in which Bill Montgomery has been publicly portrayed during the application process. As in previous judicial candidate slates sent to the Governor at both the trial and appellate levels, the current slate is quite remarkable in their diverse professional backgrounds. I encourage all who have had actual interactions with the individuals nominated to contact the Office of the Governor and provide their perspectives. But, publicly demonizing public servants that have taken a different path to judicial service is misplaced and contrary to the purpose of the merit selection process.
Brett Johnson
The criticism of Mr. Montgomery is unwarranted. In evaluating Mr. Montgomery, you can take the measure of him in deciding to enter public service in the first place and responding to the expected scrutiny, especially when it was false, unfair and unjust. I had the chance to do just that with Mr. Montgomery when he sought to serve Maricopa County for a third time as our County Attorney in 2016. Facing an onslaught of outside political spending, Mr. Montgomery never wavered in his determination to present his service in leading one of the nation’s largest public law firms in an accurate manner that fairly reflected his leadership. He did not lash out at his opponents or resort to base rhetoric that too many today resort to in the first instance. Unfortunately, as he applies to continue to serve our community on the Arizona Supreme Court, Mr. Montgomery now faces similar public criticism that is simply unnecessary and a disservice to the process.
Mr. Montgomery is a qualified candidate to be considered for appointment to the Arizona Supreme Court. As a fellow veteran, I appreciate how Mr. Montgomery has continued his dedication to service that was developed at the United States Military Academy and then hardened on the front lines defending our country. As an attorney who has litigated with and against members of Mr. Montgomery’s team of very skilled Deputy County Attorneys, I also know that his colleagues follow Mr. Montgomery’s mandate of professionalism and ethics. As many forget, Mr. Montgomery picked up the mantle of the County Attorney during a difficult time in the history of our legal community. He forged relationships, took serious his responsibilities to the community and judicial system, and always treated adversaries with dignity and respect. Having also worked with Mr. Montgomery on the board of NotMyKid, an organization committed to prevention and treatment of youth substance abuse, I can say with absolute confidence that he cares deeply about our community, especially those that are forgotten or just needing a helping hand. With these and other experiences, it is clear that Mr. Montgomery is a person of great integrity and compassion.
Yes, Mr. Montgomery took a novel path to eventual consideration to serve on the Arizona Supreme Court. If selected, he would bring a different perspective developed by a unique life of public service. He represents the values engrained in military service. Similar to Justice Sandra Day O’Connor, who also served as an elected leader before moving to the judiciary, he understands the difficulties of balancing political responsibilities and the natural tug-a-war of public policy development. As one who regularly has had to make hard judicious decisions impacting victims and those accused, Mr. Montgomery is endowed with empathy. We are privileged to have such strong judicial candidates in Arizona. Mr. Montgomery is most deserving to be in their company. It is without doubt that regardless of whether he is selected as the next Arizona Supreme Court Justice, Mr. Montgomery will continue to serve Arizona and our country with honor, dignity, and respect.
Brett Johnson is a partner with the law firm Snell and Wilmer.
Diego Rodriguez PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES
Diego Rodriguez is trying to improve his work-life balance – so he ran for the state Legislature.
The incoming Democratic representative from Legislative District 27 is coming in with charter school and criminal justice reform at the top of his agenda, armed with a long legal career.
The job won’t leave him much free time, but that’s nothing new.
“The way I was raised and what I had to do to get where I wanted to go, it’s always been about work for me,” he said. “I’m trying to be better about balancing that, so I gave myself more work to do. It’s a process.”
What do you think has changed about Arizona since you arrived to attend law school in 1992?
I think most people would say that our reputation over that time period nationally has gone down. And that’s due to a lot of the extremist political leaders that have been elected here, some of the bills that have been introduced and the policies that have been put forth. It’s become very confrontational. When I got here in ‘92, I feel like it was much more hopeful. Now, that’s starting to come back because people are starting to see that the way the state has been run for so long – we have given up a lot of opportunities as far as growth and economic development because people just simply didn’t want to come here. … it’s a more diverse group of people moving here every day. That’s starting to now filter into the politics and the communities, and people are starting to be more open and welcoming. … [Democrats] very nearly flipped the House when no one gave us a chance to flip the House. That’s a strong indication.
What is your expectation of your fellow Democrats?
We’re expecting to show the people of Arizona that the new Arizona is coming, and we’re part of the new Arizona. We have an agenda that’s very working-family friendly, very friendly to a more diverse group of Arizona citizens. For too long, under single-party rule, we’ve had an economic philosophy and a governing philosophy that has limited economic opportunities and benefits to – I don’t want to say corporations, but it has limited a working family and a middle-class family’s ability to become upwardly mobile.
You’ve described yourself as the grandson of farm workers and the son of a single mother. Tell me about your early years.
I grew up in Casper, Wyoming. Sixth out of seven kids. My mother was a single mother, so it was remarkable what she was able to do. Honestly, I’ve thought about this a lot lately, especially now that I’m in a position to try to make policy that can help people. I think about it in a different way than I did when I was an attorney – I still am practicing – because it’s a different outlook when you’re dealing with an individual client versus trying to think of ways to pass legislation that can benefit everyone. So, I look back at what my mother was able to achieve, and it was remarkable. But there were tradeoffs. … There are two different Americas going on sometimes, and I think there are very important things government can do to try to alleviate that.
Because I started here in ‘92, I’ve seen firsthand the effect of the Legislature and the governor’s decision to erode our education system and to erode our social safety net. Because if you take away somebody’s ability to educate themselves or to put themselves in a better position and quite frankly if you take away their hope, it’s human nature, you’re going to do what you need to do to survive. In Arizona, we’ve gone too far. … We have a lot of backward thinking when it comes to incarceration in Arizona. And when you couple backward thinking with mass incarceration and a lack of concern to keep our public schools adequately funded, that’s a recipe for disaster.
Was there a point when you were growing up that you think set you on this trajectory?
At a young age, I just decided I didn’t want to be where I was anymore. … It kind of sounds arrogant, but when I set my mind on something, I’m just used to getting it eventually. I figure out a way to do it.
You’re just a freshman lawmaker, but with that mindset, it sounds like you could go further in state politics. Have you thought about running for another office?
I ran for Maricopa County attorney in ‘16. My issue with Bill Montgomery is he runs that office like he’s stuck in the mid-90s, maybe even the late-80s. It does a disservice. It’s part of the reason we have such a high rate of incarceration. … If Bill runs again [in 2020], I will run again against him because I want to make sure that office gets fixed. It’s important to me that it gets fixed, and it’s important to me that someone who shares the values that I have and has the experience to follow through on it in a meaningful way and, quite frankly, someone from a community whose not from the same communities every other county attorney has ever come from [does it]. … Right now, I’m just focused on this session to make sure we keep our momentum.
If you run against Montgomery in 2020, will you feel like you’re leaving something incomplete at the Legislature?
I think it’s too early to answer that. But I can tell you that the Maricopa County Attorney’s Office is the 800-pound gorilla that drives a lot of the operation of the entire state’s criminal justice system. The policies that are adopted here and basically copied by the other counties. … [Montgomery] has been a major impediment to some meaningful criminal justice reform efforts that have been made based on his punitive philosophy toward criminal justice. … The governor says certain things about it, but if you want real criminal justice reform, you have to do real things about lowering the number of people who are in prison right now. And the fact of the matter is, we give DOC $1 billion a year at the same time we’re cutting funding to our schools. Our priorities are out of whack.
Maricopa County Attorney Bill Montgomery answers questions from members of the Commission on Appellate Court Appointments. (Capitol Media Services photo by Howard Fischer)
Gov. Doug Ducey appointed Bill Montgomery to the Arizona Supreme Court on Wednesday afternoon, making the controversial Maricopa County attorney Ducey’s fifth selection to the state’s highest court.
Montgomery’s appointment is Ducey’s second to the Supreme Court in 2019, and it’s also the second time Montgomery was up for the job. Montgomery failed to make it past a vetting procedure by the Commission on Appellate Court Appointments, but a revamped commission – with a number of new commissioners appointed by Ducey – advanced Montgomery as one of seven candidates for the governor to consider in July.
The governor, who tweeted his announcement, said he was looking for a justice who “had an understanding of the law, a well-developed judicial philosophy, appreciation for the separation of powers and a dedication to public service… More broadly, I was looking for an individual who wants to interpret the law – not someone who wants to write the law.”
“Bill Montgomery is that candidate,” Ducey wrote.
Ducey has already appointed Justices Clint Bolick, John Lopez, Andrew Gould and – earlier this year – James Beene.
Montgomery is clearly Ducey’s most controversial appointment in just under five years as governor. His appointment to the court was harshly opposed by the ACLU of Arizona and other progresive organization who criticized his political track record.
Opponents cited, among other critiques, prosecutorial misconduct that went unchecked under Montgomery’s watch in Maricopa County; a bungled use-of-force case in which Glendale police used an electronic stun gun on a man; and Montgomery’s well-known personal beliefs, such as his staunch opposition to marijuana, sentencing reform and certain LGBT rights.
Ducey’s appointment also comes one day after the Arizona Republic reported that a new ethics complaint, filed with the State Bar of Arizona, accused Montgomery of covering up misconduct by a top prosecutor in an internationally-watched murder case against Jodi Arias.
Montgomery’s appointment leaves a vacancy for the Maricopa County attorney. A temporary replacement will be chosen by the Maricopa County Board of Supervisors to hold the seat until the next election in 2020.
So far, only four Democrats have filed to run, but a Republican must be appointed to the seat to finish off Montgomery’s term.
Gov. Doug Ducey appointed a Democrat to the Arizona Court of Appeals on Friday, a week after his controversial pick of Republican Maricopa County Attorney Bill Montgomery to the Supreme Court.
Ducey named David Gass, a judge on the Maricopa County Superior Court, as the replacement to Justice James Beene, who Ducey appointed to the Supreme Court earlier this year.
Although Gass’s bid to become an appellate judge did not garner near the attention as Montgomery’s bid for the Supreme Court, Ducey ballyhooed both their selections.
David Gass
Montgomery and Gass spawned many quick positive reactions on Twitter that the Governor’s Office was not shy about sharing. Each positive tweet on behalf of the respective appointment warranted its own separate press release.
Ducey issued a single press release on the day of Beene’s appointment in April. Montgomery’s was the first judicial appointment with such a flurry of emails – more than 12. Gass’s followed suit with four almost immediately after he was named.
Gass previously worked in the Attorney General’s Office under Terry Goddard, and was the Arizona House Democratic Caucus counsel before that. Also with the help of the Arizona Judges Association, Gass started a legislative day for judges to shadow a lawmaker at work during the session.
He was appointed by Gov. Janet Napolitano to the Superior Court in 2009.
The Gass appointment gives Ducey 62 total court appointments, two shy of Gov. Jan Brewer and six shy of Gov. Bruce Babbitt’s record of 68. Ducey must now fill another seat on the Maricopa trial court, in addition to one more Court of Appeals appointment this year following the death of Judge Jon Thompson. The governor already had to fill two other vacancies on the Maricopa County Superior Court after Judges Janet E. Barton and Cari A. Harrison retired.
Patricia Plum needs a signature from Gov. Doug Ducey to volunteer in her daughter’s school.
She’s seeking a pardon from the governor because her criminal record prevents her from getting a fingerprint clearance card needed for the volunteer work.
When she was 17, in 1999, she was convicted of a felony for an impaired driving accident that killed a child, according to records from the Arizona Board of Executive Clemency. She was sentenced to seven years in prison after pleading guilty to manslaughter. She got her GED in prison and learned how to be an electrician. Since she left prison, she has earned degrees in social work and now works as an addiction therapist.
While the Clemency Board unanimously recommended a pardon for Plum based on her stellar record since leaving prison, she faces uncertainty on the governor’s desk.
Nearing the end of his first term, Ducey has granted only one pardon, to a man who stole a motorcycle in 1972.
Other pardon recommendations sit dormant, leaving people awaiting a signature that could change their lives in fundamental ways.
Some of them committed crimes at young ages, served their time and rebuilt their lives. Others received sentences the Arizona Board of Executive Clemency found harsh, so they recommended reducing their time in prison. Some seeking pardons want to get jobs to serve their communities, but have hit walls because of their criminal histories. A few are seeking pardons form Ducey as a way to clear their state criminal records in hopes of getting U.S. citizenship.
The governor has granted just five commutations, or reduced sentences, all but one of which were for people who were near death.
For a governor who has repeatedly touted his interest in a more humane criminal justice system that provides real second chances for people, the idea of mercy in the form of pardons or reduced sentences has largely eluded the picture.
And for Plum, her steps forward can’t bring back the 8-year-old girl who died in the 1999 accident. The effects of the accident have stayed with Plum. The board noted Plum had also been seriously injured in the crash, leaving visible scarring on her face, which she has decided not to repair because it serves as a “reminder of that tragic day.”
Patricia Plum
Plum has forged a relationship with the victim’s family, the board pointed out. She volunteers with the girl’s grandmother for organizations like Mothers Against Drunk Driving. Plum made keychains for her family members with the girl’s photo to remind them to be safe and sober drivers, the board said.
Plum told the board she dreams of working as a therapist for female inmates or newly released women. She wants to get a fingerprint card, which would allow her to apply for employment with the Department of Corrections.
Most importantly, the card would allow her to volunteer at her daughter’s school. But the board said it’s “a role which is currently denied to her because of her background.”
Ducey hasn’t yet decided on Plum’s pardon recommendation, which arrived on his desk in January.
Ducey has only reduced a sentence for one person still in prison who wasn’t dying, despite several unanimous recommendations from the board. This week, he denied a reduced sentence for a former police officer, Richard Chrisman, who shot an unarmed man while on duty.
“I have seen virtually no evidence that the governor and his office recognize the important opportunities they have on the clemency and commutation front,” said Larry Hammond, an attorney and president of the Arizona Justice Project.
Ducey’s inaction on pardons falls behind his predecessors in both parties. Jan Brewer, a Republican, granted 13 pardons, though 12 of those came on her last day of office, according to documents from the Clemency Board. Democrat Janet Napolitano granted 22 pardons, the documents show.
Brewer received criticism for her inaction and denials for clemency, with one news report from 2012 saying it’s more likely for someone to get struck by lightning than receive clemency from Brewer.
Daniel Scarpinato, Ducey’s spokesman, challenged the idea that Ducey has been inactive on clemency. He said the governor and his staff spend a great deal of time analyzing each case on its unique facts before deciding whether to support or deny a commutation or pardon.
“Just because one hasn’t been granted doesn’t mean we were inactive, it means we took the time to give it the attention it deserves, looked at it closely before making a decision. I think that’s taking a thoughtful approach,” Scarpinato said.
The governor weighs the person seeking the pardon’s case alongside any victims of the crimes they committed, Scarpinato said. He’s “very sensitive” to all sides involved in the clemency process, Scarpinato said.
Maricopa County Attorney Bill Montgomery said prosecutors generally oppose commutations because any facts and circumstances were already considered in a case before it’s resolved in the court system. There are rare instances where facts may come to light later that merit review, but that is “exceedingly rare,” Montgomery said.
“This is someone trying to take a second bite at the sentencing apple,” he said.
Pardons are different, he said. Since people have already served their time and paid their debt to society, it’s fair to review the case and weigh what the person has done since their conviction against any harm to victims or the community, he said.
The clemency process often features divergent narratives from the people seeking absolution and those who prosecuted the case or were victimized by it. And it’s highly political – if someone were granted a reduced sentence, for instance, then went on to commit a crime, the governor would be criticized.
That happened to former Arkansas Gov. Mike Huckabee, who commuted the sentence of a man who then killed four police officers years later. And leniency for criminals helped tank Michael Dukakis’ presidential aspirations after a TV ad attacked him for allowing weekend passes for prisoners, one of whom then kidnapped and murdered a couple.
The political implications of granting pardons, and especially commutations, can’t be ignored, and they exist regardless of party affiliation, said Donna Hamm, the director of Middle Ground Prison Reform. Politicians are always gauging which way the wind blows and trying to avoid angering the electorate, especially if they’re planning for future offices, Hamm said. That’s why most governors or presidents have pardoned a bunch of people on their way out the door, she said.
Ducey’s interest in criminal justice largely has focused on reentry and employment programs for people, which Hamm called a “pretty darn safe” platform. Most people want those leaving prison to get jobs and be successful after they’ve served their time, she said. Doing more than that requires political will.
“I think the governor should always do the right thing, and sometimes that involves political risk-taking. I think he should always do what is right and just, because he has that power. That does involve criticism and unpopular decision-making on some occasions,” she said.
The governor’s interest in criminal justice reform has largely focused on the reentry process, helping people find jobs and access services once they leave prison, Scarpinato said.
“In terms of washing away an entire record, you’d really need to be a very unique circumstance because that’s a big decision for a governor to make after a judge and jury have made a decision and victims have been involved,” Scarpinato said.
In many cases, though, people plead guilty and take responsibility.
Ducey is open to potential changes to laws and policies that hinder people’s ability to live and work if they have criminal records, Scarpinato said.
Pardon recommendations don’t expire, so Ducey can still take action as long as he’s governor. Commutation recommendations, if they’re unanimous decisions by the board, give the governor 90 days to approve or deny. If he doesn’t deny, they are de-facto approved.
The Clemency Board has also been recommending fewer pardons or commutations than it has during past administrations. Under Brewer, the board recommended on average more than 25 commutations and five pardons annually. Under Napolitano, the board recommended more than 50 commutations and six pardons per year.
Under Ducey, there have been just 12 recommended commutations and seven recommended pardons since he took office in 2015.
Hamm, of Middle Ground Prison Reform, said word has likely gotten around to people in prison of the low likelihood of getting a commutation approved. The board has reviewed 964 commutation cases since Ducey took office, recommending only 78 of those move to a second phase for an in-person board hearing.
“I think that information really circulates in the prisons and people throw up their hands and say, why bother,” Hamm said.
The commutation process is all but dead in Arizona, Hamm said. It’s on life support.
Even a unanimous recommendation from the board, despite the difficulty in obtaining it, doesn’t mean the governor will take action.
Myreon Hollingsworth
Myreon Hollingsworth received a unanimous recommendation from the board in May 2017. Because the board voted unanimously and Ducey failed to act on it within 90 days, his commutation was granted even without Ducey’s signature.
Hollingsworth was 15 years old in 2013 when he went with his cousin to buy marijuana from a classmate. The drug deal turned violent, and Hollingsworth’s cousin, Keishaun Green, shot and killed the classmate’s father, Darwin Barnes. Hollingsworth cooperated with police and testified against Green, despite threats he received from the Green family, the board’s letter recommending commutation says.
Hollingsworth pled guilty to manslaughter and was sentenced to seven years in prison, the mandatory minimum.
While in state custody, Hollingsworth was a role model to juvenile offenders, the board said. His former football coach told the board at the commutation hearing that he would offer Hollingsworth a job as a mentor to high school athletes once he was out of prison.
Hollingsworth is still a teenager, but the board found him mature and “evolved.” He wants to go to college and become a counselor, the board noted.
“With so much of his young life remaining, the board believes that Mr. Hollingsworth has the great potential of becoming a happy, productive and responsible member of society, if not an upstanding citizen,” the board concluded.
It was a rare instance where the prosecutors from the Maricopa County Attorney’s Office actually supported the commutation.
His sentence was reduced to time served, with community supervision intact. His sentence was previously set to end in June 2020. He was released from prison August 8.
Hollingsworth’s case fits an area of interest for some criminal justice reform groups, who want to see people who committed crimes as teenagers shown grace. The state of New York started a youth pardon program, which granted more than 100 pardons in late 2016 to people who were teens when they committed crimes. The state estimated more than 10,000 people could be granted pardons through the program, according to NPR.
There has so far been just one case Ducey found worthy of a pardon.
Michael Scow was sentenced to two years of probation for theft of a motorcycle in 1972. He had his civil rights restored in 1974 and his right to own a firearm restored in 2013. He worked in maintenance and repairs for police motorcycles for the Reno Police Department and the city of Reno for 28 years, the board noted.
But in December 2013, he was denied a handgun purchase because Nevada law says a person convicted of a felony can’t own a gun unless they have been pardoned.
The board said Scow “embodies the true purpose of Arizona’s criminal justice system” because he hasn’t committed any crimes since his initial conviction, and he has contributed to society and his community.
Ducey granted Scow’s pardon in March 2016.
Hammond, of the Arizona Justice Project, said the governor could take an active interest in clemency and focus on areas like end-of-life release, juveniles and women. Ducey would likely find a lot of support from conservative groups interested in criminal justice changes for those populations, Hammond said.
In recent years, other states have moved forward on more systemic analyses of their prison populations and clemency, Hammond said, but Arizona lags.
“If we’d had this conversation five years ago, I would have said, well, that’s just the way it is in America and the way it is in Arizona. Now, it’s not the way it is in lots of other places. If Ducey really was interested in reexamining the state of incarceration, this is one obvious area and it would be easy to do,” Hammond said.
Still, despite the unlikelihood of receiving a gubernatorial pardon or commutation, Hamm said people in need of Ducey’s signature should always have hope.
She compared getting clemency to winning the lottery.
“Your chances of winning are infinitesimal … but you’ll never win if you don’t buy a ticket,” she said.
The Arizona Supreme Court from left are James Beene, Andrew Gould, Vice Chief Justice Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery. Gov. Doug Ducey has chosen all the justices except Timmer and Brutinel and he has made more judicial appointments than any Arizona governor in history
Gov. Doug Ducey has been in office for 1,942 days, and has made 71 judicial appointments over that span, but his picks will have a lasting impact on Arizona long after he leaves office.
On April 24, Ducey surpassed Gov. Bruce Babbitt for the most appointments in state history after naming three judges to the trial court in Maricopa County and one to the Court of Appeals Division One. Coincidentally, Babbitt was the last Arizona governor to successfully serve two full terms.
Ducey passed him with still more than two years left to go and plenty more picks to make.
His record-breaking choices extend to more than just the most overall, but it’s hard to imagine any future governor would appoint five or more Supreme Court justices during their term as governor, something he accomplished in 2019 after appointing both Justice James Beene and Justice Bill Montgomery.
Ducey is able to make judicial appointments through a process called merit selection. A commission – either for trial courts or on the appellate level – narrows down a field of applicants through an extensive vetting process to send a list of qualified candidates for an interview with the governor and subsequent appointment. It’s required to send at least three names (with party restrictions), but commissions will typically send five – and occasionally more.
Paul Bender
ASU law professor Paul Bender said the longer the list of candidates Ducey has to choose from, the more likely the picks become political.
“The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people,” Bender said. “When you start sending in five or seven names, that doesn’t work as well anymore.”
From Ducey’s recent pick of Cynthia Bailey to the Court of Appeals, he was given a list of 11 candidates. The commission in this instance barely winnowed down the field, only eliminating one candidate.
When Ducey appointed Montgomery in September, he interviewed seven people. For each of Gov. Jan Brewer’s three appointments to the highest court, she was given a list of just three names. Clearly, Ducey has received more freedom to make picks than previous governors.
“The more names you give him the more it’s like he can pick whoever he wants,” Bender said.
Ducey has also come under heavy scrutiny from mostly Democrats on his appointments to the nominating commission. Made up of 15 people with the chief justice serving as its chair, there is not a single Democrat involved. The commission is also in charge of vetting candidates for the Independent Redistricting Commission providing a double-whammy of sorts for Republicans to regain control of Arizona’s next political decade.
Bender referenced the governor’s picks to the Commission on Appellate Court Appoints as a further reason he is able to choose who he wants, within reason.
“The combination of the fact that he’s been able to put people on the commissions and the fact that the commissions are giving him a lot of names, has given him more freedom than previous governors have had since the merit selection system started,” Bender said.
Through his 71 total appointments, he has spread around diverse picks to shake up the courts. Ducey has appointed the most women, the most members who don’t belong to his own party and sits behind only two governors for the most racially diverse selections. But looking into where those picks have gone, he seems to favor diversity on the lower level courts.
Doug Ducey
Ducey appointed 25 total women to the courts, but not one serves on the Supreme Court, though he has interviewed several. He appointed four women to the Court of Appeals (compared to nine men), and the bulk of his female selections went to the Maricopa County Superior Court.
His appointments to the Supreme Court consist of five men, but four are Republican and the one who is not, Justice Clint Bolick, is an independent who is still viewed as highly conservative.
His Democratic and third-party picks typically go to the Superior Courts as well. He has appointed 29 people not belonging to the Republican Party – and only four (including Bolick) are on the appellate level.
Bender said this is important because appellate courts are the ones who are really making the laws.
“It is more important to have political balance on the appellate courts than it is on the trial courts, because the appellate courts make the law and the trial courts just decide the cases,” he said.
Ducey’s picks will also last a while because he has made a habit of appointing younger judges. The courts have a mandatory retirement age of 70 and at least on the Supreme Court, none of the justices will reach that mark until at least 2027. Bolick is the oldest being born in 1957, but Chief Justice Robert Brutinel (a Brewer-appointee) could keep up with tradition and retire after his five-year term as chief ends in 2024. So barring a resignation or death, or a lost retention vote, 2024 seems to be the earliest the next justice will be named to the high court.
One judge who interviewed with the governor for an appointment said Ducey doesn’t ask easy questions and was engaged in the answers.
Ducey expects some level of analytical explanation in the response, and he’s not looking for specific answers either, and he also asks about relevant beliefs like the role of a judge or justice, separation of powers, and specific constitutional provisions. He asks personal questions too, such as reading choices, greatest personal accomplishments and time spent outside of law.
The judge said Ducey doesn’t always conduct the interviews though. Sometimes he leaves it up to his staff, and that he probably seeks judges who approach the role with humility and a recognition of the separate branches of government.
Ducey laid out his judicial selection process in a “fireside chat” with former U.S. Sen. Jon Kyl in 2019.
Ducey point blank says he has asked the commission to send him more names. He said he doesn’t like the word “legacy” being used to describe this because it puts too much focus on the individual, but uses it anyway.
“These are legacy picks,” Ducey said. “These are people that almost all will outlive the term of the governor.”
When it comes to asking questions of his eventual appointments, Ducey said there isn’t a litmus test, but he likes to start with judicial philosophy. He went on to say he’s really trying to find out if the candidates want to be a judge or if they would be better equipped running for the Legislature.
“If they want to be a judge, that’s the person I want to select. If they want to make policy, they should go run for office,” he said.
Ducey also has made a habit of choosing judges from lower courts, which has heavily played into why he has made so many appointments, and will continue to do so. But less so on the Supreme Court where only two of his five picks came from a lower court – Beene and Justice Andrew Gould.
Bender compared that “strategy” to one a lot of Republican presidents have used to shape the federal court system.
“President Eisenhower was the one who started it. He started appointing people to the Supreme Court from the courts of appeals and he also ended up appointing people to the Supreme Court that he’d already appointed to the courts of appeals,” Bender said, adding that he views this as a problem because it shows a lack of diversity for justices’ backgrounds.
But for Ducey, Bender doesn’t view his picks to the Supreme Court as a negative in that instance.
“To me, that’s a strength that you have a court that is composed of people from different areas,” he said.
Maricopa County Attorney Bill Montgomery answers questions July 26, 2019, from members of the Commission on Appellate Court Appointments. (Capitol Media Services photo by Howard Fischer)
Arizona Supreme Court Justice Bill Montgomery is no longer under investigation over whether he covered up misconduct from one of his top prosecutors at the Maricopa County Attorney’s Office.
An Independent Bar Counsel took over the investigation, which launched one day before Gov. Doug Ducey appointed Montgomery to the high court in September 2019.
“I have maintained that the complaint was frivolous and based on its timing, intended only to influence the appointment process. Nevertheless, it was the duty and responsibility of our Attorney Disciplinary System to thoroughly investigate the matter,” Montgomery said in a statement today.
“I am pleased with the resolution and I will continue to devote my complete attention to serving the people of the State of Arizona as a Justice on the Arizona Supreme Court.”
He noted that the time to appeal the dismissal has already passed and the matter is “concluded.”
Meredith Vivona conducted the investigation and updated Capitol Times multiple times to say it was ongoing, but never provided any details. Vivona works for the Commission on Judicial Conduct and conducts investigations against judges who face ethics complaints.
Lawyers for convicted murderer Jodi Arias filed a complaint accusing Montgomery of covering up misconduct by Juan Martinez, who received a complaint of his own and was subsequently disbarred in July. He was also fired from the County Attorney’s Office, which he appealed and lost.
The complaint from attorney Karen Clark contended that Montgomery, as Maricopa County Attorney, unethically covered up misconduct by Martinez, who was a nationally known prosecutor, regarding Martinez’s activities in the murder trial of Arias.
Arias was sentenced to life behind bars after what had been a particularly high publicity and often lurid trial in which she was found guilty of the 2008 murder of sometime boyfriend Travis Alexander. He was shot in the head, had his throat slit, stabbed 27 times and left in the shower.
What led to this complaint against Montgomery was conduct by Martinez, both during the trial and elsewhere.
Clark charged that it was Montgomery’s legal obligation to supervise Martinez. She said he engaged in unethical conduct by blocking the release of records, including complaints by employees who claim they had been harassed by Martinez, records she said would have informed the public about his chief prosecutor’s actions.
There’s also the allegation that Montgomery authorized Martinez to write a book about the Arias trial before it ended, and do it during business hours when he was on the county payroll. And she said Montgomery gave access to case information to outsiders, including someone from the “Dr. Drew Show” on HLN.
Independent voters don’t have many contested races in Maricopa County in which they can sway the outcome with Arizona primary elections roughly two months away.
With every hot race like Sen. Heather Carter, R-Cave Creek, versus Rep. Nancy Barto, R-Phoenix, there are at least a dozen or so uncontested primaries on both the Democratic and Republican ballots this year in Maricopa County.
In the state Senate there are only five districts with a primary challenge, including the Barto and Carter race in Legislative District 15. Legislative District 22, on the Republican side, has Sen. David Livingston, the incumbent, against two opponents – Van Dicarlo and Hop Nguyen. Sen. Michelle Ugenti-Rita will face Alexander Kolodin in the Legislative District 23 Republican primary. On the Democratic side, Sen. Lela Alston faces Ryan Starzyk in Legislative District 24 and Sen. Juan Mendez will be challenged by Jana Lynn Granillo in Legislative District 26.
The remaining Senate races either have candidates set to win the seat come November (barring a write-in campaign) or a one-on-one race that won’t matter for the primary.
In the House, 12 of the 20 districts in Maricopa County have a contested primary, meaning more than two candidates per party, and Legislative District 29 has contested primaries for both the Republicans and Democrats. Nine races are on the Republican side and the remaining four are for Democrats.
Both Legislative districts 1 and 15 will fill two vacancies as those current representatives either are termed out or retiring and several others have one open seat.
There are positives and negatives in not having a primary challenge as seen when Fred DuVal ran for governor in 2014, but there aren’t any races of that magnitude this election cycle.
Typically, the positives of no primary challenge is the ability to save money and resources for the general election race, but the negatives, if there is a competitive primary for the opposing party, are that all the attention will be on the opposing party’s ballot instead.
Independent voters can select which ballot they want to vote on during the primaries instead of having to re-register for a specific party like they would in a Presidential Preference Election. Currently, there are 1,249,379 registered voters listed under the “other” category according to April numbers from the Arizona Secretary of State’s Office.
Looking at other races on the August primary ballot, there is not a contested statewide contest, after four Republican candidates who intended to run for the Arizona Corporation Commission are no longer on the ballot. That leaves just two on the ballot with two others hoping for a write-in bid. For Democrats, only three are running for three seats.
The next major race in Maricopa County on the Democratic side is the primary for county attorney.
Rep. Diego Rodriguez, D-Phoenix, was the last Democrat to run for that seat, losing to now-Arizona Supreme Court Justice Bill Montgomery by the slimmest margin in years for that office.
Three Democrats are running to unseat Allister Adel, the Republican who the County Board of Supervisors appointed to replace Montgomery last fall. Adel does not face a primary challenger.
Republican county candidates see challenges in the race for county assessor, county treasurer, county recorder and county sheriff, and among the few races for constable and justice of the peace. Whereas Democrats only have challenges for justice of the peace races in the Maryvale and Moon Valley precincts.
Federal races are a different story.
Arizona currently has nine congressional districts and all but the 2nd Congressional District touches Maricopa County, and of those eight the 7th Congressional District is the only one without a primary challenge for either party.
The most-discussed challenges for Congress in Arizona are the Democrats in the 6th Congressional District to see who will take on Rep. David Schweikert, who has been drowning in legal fees over what he called “an accounting error.” Dr. Hiral Tipirneni leads that pack with the most fundraising of any congressional challenger in the state, and one of the top nationwide.
She lost twice to Rep. Debbie Lesko in the 2018 8th Congressional District special and general elections. Now Tipirneni will see Anita Malik, the CD6 Democratic nominee in 2018, and relative newcomers Stephanie Rimmer and Karl Gentles.
In the 1st Congressional District, Rep. Tom O’Halleran is being challenged by the more progressive Eva Putzova, and the Republican race is between Tiffany Shedd and Nolan Reidhead.
Rep. Paul Gosar, in the 4th Congressional District, is the only remaining incumbent facing a primary challenge in Anne Marie Ward.
Then there’s the most talked about race nationwide between likely foes U.S. Sen. Martha McSally and Mark Kelly.
McSally will see a Republican challenger who has failed to raise significant money and show up in any polls nationwide. Whereas Kelly is only looking at a write-in candidate who goes by “Heir Hawkeye.”
In a tight race to become the next Maricopa County Attorney, Julie Gunnigle is in a good position to win a competitive Democratic primary to ultimately face Allister Adel, the Republican appointed incumbent on November 3. Gunnigle leads Will Knight and Robert McWhirter with 60% of the vote.
Adel, who ran unopposed, was appointed to the seat last fall after Gov. Doug Ducey appointed Bill Montgomery to the Arizona Supreme Court. Montgomery’s 2016 election was the slimmest margin of victory for a Republican county attorney when he beat now-state Rep. Diego Rodriguez by five percentage points. As Democrats gain a foothold in Maricopa County, countywide seats will be important to watch come November.
Gunnigle is hoping to be the first Democrat to lead the office and put some distance between the controversy-plagued years under Montgomery and his predecessor Andy Thomas, who was disbarred. And whoever wins between Gunnigle and Adel will become the first elected female county attorney in the state’s largest county.
Gov. Doug Ducey, right, speaks with Rep. Shawnna Bolick, R-Phoenix, and Arizona Supreme Court Justice Clint Bolick Aug. 15 before a dinner at the American Legislative Exchange Council conference in Austin, Texas. Clint Bolick was criticized for attending the dinner at the political conference. PHOTO FROM TWITTER
An Arizona Supreme Court justice defended himself August 20 from a storm of criticism after being spotted at a conference known to push conservative legislation.
Gov. Doug Ducey tweeted a photo on August 15 showing him with Justice Clint Bolick and his legislator wife, Shawnna Bolick, R-Phoenix, at a conference held by the American Legislative Exchange Council, or ALEC, in Austin, Texas.
While Bolick did not actually attend the conference, he did attend a dinner with his wife.
The justice said he attended the ALEC dinner as his wife’s guest, but acknowledged that ALEC paid for his meal.
“Nothing at the dinner would remotely compromise my impartiality or create a reasonable appearance otherwise,” Clint Bolick said.
Critics jumped on the tweet, questioning whether Clint Bolick’s appearance there – albeit with his wife – and at a separate event hosted by school choice advocates in Austin, was a conflict.
Chris Herstam, a political consultant who left the GOP a few years ago, threw the first stone.
“I never thought I’d see a sitting AZ Supreme Court Justice standing w/his GOP legislator wife & the gov. who appointed him at an ALEC annual meeting. ALEC & the wife write the laws, Ducey signs them into law & Bolick rules on them. Something is very wrong with this picture,” Herstam tweeted, receiving more than 170 retweets and 300 likes.
Several responses poured in, including one from Brian Garcia, a law student who worked for U.S. Sen. Kyrsten Sinema when she was in the U.S. House. He tweeted that Bolick’s duty to avoid the appearance of impropriety “goes out the window.”
Bolick said there was nothing improper about his talk at a school-choice education forum billed as “A Conversation with Justice Bolick,” which focused on experiences and strategies regarding litigating school choice cases leading up to a 2002 U.S. Supreme Court case stemming from a school choice debacle in Ohio.
“I was also asked about my transition from public interest law to the bench, my judicial retention election, the comparison of judicial elections in Texas and Arizona, and my tattoo,” Bolick said, referring to the scorpion tattoo he has on his finger.
He said judges give talks at events like that all the time.
“My colleagues and I all speak frequently at public forums and attend conferences at which positions are argued or taken on public policy or legal issues, including state bar functions, the State of the State speech, community forums, and even our annual judicial conference,” Bolick said in an email
U.S. Supreme Court justices also tend to abide by the same practices, he said.
“We are all mindful of our ethical responsibilities and can separate what we hear in a public forum from our duty to decide cases impartially,” he said, adding that as long as they don’t comment on legal issues that are likely to appear before them on the court, or express views on their ongoing cases, they’re not breaking any rules or endangering their neutrality.
The Judicial Code of Conduct states that a judge shall not be swayed by partisan interests; shall uphold independence of the judiciary; shall avoid impropriety and the appearance of impropriety; shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary; and a judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
ALEC is partially funded by the Koch Brothers and its conference is held for conservative state legislators to coach them into pushing model conservative bills.
Mark Harrison, an attorney who specializes in attorney ethics, said the mere attendance at the ALEC conference is not a violation of the Judicial Code of Conduct unless the justice expressed views or participated in activities.
This isn’t the first instance that accusations of breaking that clause of the code of ethics have been levied against Bolick. It was a common critique of his political behavior when he texted Ducey to name Bill Montgomery as John McCain’s replacement in the Senate last year.
In this Aug. 25, 2014 file photo, Maricopa County Attorney Bill Montgomery speaks during a news conference in Phoenix. Hundreds of immigrants who have been denied bail under a strict Arizona law will now have the opportunity to be released after the U.S. Supreme Court issued a ruling Thursday, Nov. 13, 2014 in the closely watched case. The high court kept intact a lower-court ruling from three weeks ago that struck down the law, which was passed in 2006 amid a series of immigration crackdowns in Arizona over the past decade. Montgomery and Sehriff Joe Arpaio defended the law before the courts.(AP Photo/Ross D. Franklin, File)
More than a dozen liberal organizations and Democratic lawmakers are asking Bill Montgomery to establish an exclusion list of law enforcement officers with a history of dishonesty, bias, or violence.
In a letter sent to the Maricopa County Attorney’s Office Friday, the ACLU of Arizona, the local chapter of American Friends Service Committee, CAIR, Law Enforcement Action Partnership, LUCHA and The Justice Collaborative signed on with Representatives Athena Salman, César Chávez, Diego Rodriguez and Raquel Terán, Senators Senators Juan Mendez and Martin Quezada and newly-elected Phoenix City Councilman Carlos Garcia, are asking that Montgomery follow in the footsteps of St. Louis, where the city prosecutor recently placed 22 officers on her exclusion list because of racially-charged social media posts.
The Phoenix Police Department was recently scrutinized for active officers’ racially-charged and violent posts on Facebook found in a database from The Plainview Project, and a viral incident in which a police officer threatened to shoot an unarmed person over shoplifting, both of which were highlighted in the letter.
“These latest scandals have surfaced after a year in which Phoenix led the nation in police shootings, demonstrating the need for true accountability and real change in our police department,” the letter says.
Montgomery took issue with the letter to state that there is already something similar in place.
“We have a Rule 15 Disclosure Database that serves the same purpose, but with appropriate requirements for thorough investigations and Due Process guarantees,” he said through a spokeswoman.
Rule 15 governs disclosure of evidence for criminal trials.
Montgomery said he doesn’t think the people calling for this kind of list “know or understand the use and effect” of the rule already in place.
The letter ends by saying Montgomery has “unmatched power to demand better police practices,” and if he does not agree, it “enables and condones misconduct that undermines the integrity of our entire legal system.”
Montgomery isn’t the only official that does not support a no-call or exclusion list asked in the letter.
Joe Clure, the executive director of the Arizona Police Association, reiterated Montgomery’s comments about the Rule 15 disclosure in place.
“There’s a lot of misunderstanding for what Brady v. Maryland is and is not,” Clure said, referring to a landmark U.S. Supreme Court case that requires the prosecution to disclose any material evidence favorable in its possession to the defense upon the defense’s request.
The Maricopa County Attorney’s Office keeps a list – known as the “Brady list” – of police officers whose honesty is in question.
Clure said the Brady list and the Rule 15 are determined independently by a court in terms of relevance and whether things are “disclosable.”
He said he doesn’t think it’s necessary to have these lists.
Retired Sgt. J. Gary Nelson, formerly of the Scottsdale Police Department, and a member of Law Enforcement Action Partnership, or leap, disagrees with Clure.
He says that “a no-call list would help ensure biased and dishonest police can’t get in the way of Americans’ constitutional right to a fair trial.”
“Recent events, especially in Arizona, demand that we take serious accountability measures to keep only the best officers serving our communities,” Nelson said in a statement provided to Capitol Times.
Clure said he thinks the lists already in place are flawed because someone could make a mistake and then have a clean record for 10 or so years, but their name still won’t be removed. He compared it to a criminal defendant having a right to not have prior convictions held against them if the sentencing takes place after 10 years.
“There’s no doubt there is a war on police right now,” Clure said, adding that there is nothing broken that needs to be fixed.
The “exclusion” list the organizations are asking of Montgomery is, according to Clure, “a solution in search of a problem.” Clure also said that the whole process now is like double jeopardy for the officers.
While, the organizations don’t clearly state the current rule in place, they wrote in the letter that this would just be a step in the right direction, not necessarily a final solution to the ongoing problems they point out in Arizona law enforcement.
Analise Ortiz, campaign strategist at the ACLU of Arizona, said that instituting a no-call policy is an important step toward repairing the public’s trust with prosecutors and the criminal legal system as a whole.
“Officers who’ve publicly made their racist views known put the integrity of any case they handle in jeopardy,” Ortiz said in a statement.
The letter also mentions Montgomery has remained silent in times of crisis before, so this would be an opportunity for him to act.
“The County Attorney must be a leader for police accountability, not someone who sits silently on the sidelines waiting for others to fix a broken system that he oversees,” the letter says.
The letter does briefly mention the Brady list, but only to point out that this proposed change they are seeking would do more than what a disclosure database does.
“[The Brady list] does not prevent the County Attorney from calling [officers in question] to testify or prevent the office from accepting their cases,” it says in the letter.
Clure does emphasize that the Brady list needs to improve and add the capability for officers to eventually be removed or at least go through some type of appeal process.
“We hire from the human race, and until Jesus Christ comes down and applies you’re going to get people that are going to make mistakes. There are no perfect people,” Clure said.
While it’s unlikely Montgomery will bend the knee to this request, he may not be the county attorney much longer if Gov. Doug Ducey opts to appoint him to the Supreme Court later this year. Montgomery’s term as county attorney is also up in 2020, but he hasn’t yet filed to run again.
A convicted quintuple murderer is looking to the Arizona Supreme Court for leniency and a way to avoid the death penalty.
William Craig Miller, 43, murdered five people in Mesa in 2006, including two children, in an apparent attempt to dispose of witnesses after he and one of his victims burned down Miller’s house for the insurance money.
Miller received the death penalty for each of the five counts of first degree murder. The jury took less than two days to deliberate before returning the verdict. Miller was also found guilty of four counts of solicitation of first degree murder and one count of burglary. The Supreme Court affirmed his conviction and sentences in 2013.
In a post-conviction proceeding, Miller argued his Sixth Amendment right to effective assistance of counsel was violated, in part because his counsel did not object to a misworded jury instruction. The court ordered a new penalty phase trial, and the state appealed.
The state Supreme Court took the case and will hear oral arguments at 9:30 a.m. on Thursday.
William Miller
The state argues that the jury instructions used were adopted with the defense bar’s input, through the State Bar’s jury-instructions committee, and were also used in at least three other capital cases without objection.
The issue is with how “significantly impaired” was defined in the instructions.
The instructions asked whether the significant impairment “prevented” Miller from knowing right from wrong and complying with the law. The instructions should have asked the significant impairment “substantially reduced” those abilities.
The post-conviction court stated that the instructions caused jurors to “reject[] the evidence of Miller’s mental illness/personality disorder if they believed it did not prevent him from appreciating the wrongfulness of his conduct or conforming his conduct to the requirements of the law, even if they believed it substantially reduced his ability to do so.”
However, if the jury had received the correct instructions, the state also contends that it wouldn’t have returned a different outcome than the five death sentences, stating that Miller and the post-conviction court didn’t consider all the facts and aggravating factors in asserting the contrary.
Miller’s crimes more than a decade ago shook the community, then-county attorney, now state Supreme Court Justice Bill Montgomery said after Miller’s 2011 conviction. Montgomery has recused himself from the case.
Steven Duffy, 30, helped Miller burn his house down in 2005 but later started cooperating with the arson investigation, and Miller was indicted.
Angered that Duffy was helping the police, Miller then tried four times to hire someone to kill Duffy and his girlfriend, Tammy Lovell, 32, according to court documents. When that failed, he shot and killed them himself, along with Duffy’s brother Shane, 18, and Lovell’s 10- and 15-year-old children.
He then faked a burglary to suggest the killer was coming for him, next.
A 2006 East Valley Tribune article described Miller as “Full of bluster and bravado, behind the wheel of a fancy car, dropping $200 for dinner and living the high life in Scottsdale” before the arson and the murders. Even as police started their investigation, he reveled in the attention and would call up reporters to joke about the news vans outside his house.
Miller’s murder trial was delayed five years to 2011, caused by Miller considering representing himself, competency proceedings and a shuffling of his defense team.
At the time, the Supreme Court concluded that no Sixth Amendment speedy trial violation occurred because Miller would have been incarcerated anyway due to his arson conviction. The Court also noted that Miller remarked during the trial he was “going to get convicted anyway,” regardless of delay.
A Lake Havasu City senator says he still has yet to be convinced that marijuana has any legitimate medical uses.
But Republican Sonny Borrelli said Monday the fact remains that voters did approve legalizing the drug for medical uses in 2010 and more than 150,000 Arizonans have state permission to buy and use it. So he figures it’s the state’s obligation to ensure that buyers are getting a product that’s not tainted and, in fact, has the amount of psychoactive THC that buyers are promised.
SB 1420 would give the state Department of Agriculture the same authority over marijuana as it now has over other plants offered for sale for consumption. That would give agriculture inspectors the power to inspect the cultivation facilities where marijuana is grown.
More to the point, Borrelli wants what is being grown tested for what operators are using on the plants.
Rep. Sonny Borrelli, R-Lake Havasu City
“It’s the Wild West,” he said of the current state of marijuana regulation, with no rules on pesticides and other chemicals being used on the plants.
For example, he cited a fungicide marketed as “Eagle 20.” Borrelli said federal regulations prohibit its use on tobacco “because it’s a heavy carcinogen.”
But those same federal rules are silent on use on marijuana, meaning it can be used.
“Well, I think the person that’s buying that stuff, they need to know there’s a heavy carcinogen in there,” Borrelli said. “If you’re a cancer patient, would you want to be taking medicine that could make you even sicker?”
Nothing in the legislation would ban any specific chemical. But it would require that when the marijuana is sold at the dispensary that buyers are made aware that it was used in the production.
“I want to concentrate on customer safety,” he said.
Moldy marijuana is a slightly different question.
Borrelli said he’s been told it can be treated to get rid of any fungus rather than retailers having to toss out the plants entirely. At that point it could be offered for sale — along with information on how it was treated.
But Borrelli’s legislation also has what might be considered the consumer fraud provision.
“If they’re going to advertise there’s 20 percent THC and it’s only 5 percent, they need to relabel it,” he said.
If approved, the measure would have another benefit for the more than 150,000 individuals who now have state-issued ID cards allowing them to purchase up to 2 1/2 ounces of marijuana every two weeks: More cash in their pockets.
The original 2010 voter-approved legislation did not set a fee, leaving that up to the Department of Health Services to charge enough to administer the program. In fact, the law bars the proceeds from being used for anything else.
The agency currently charges patients $150 for one of the cards, a fee that has to be paid every year.
“It’s kind of hard to justify when they’re sitting on $40 million,” Borrelli said, with current Health Director Cara Christ having refused requests to lower the fees, even in the face of a lawsuit by medical marijuana users.
Christ won the first round when Maricopa County Superior Court Judge Jo Lynn Gentry said she lacked the legal authority to declare the fees excessive, even with the health department running the program with a huge surplus.
SB 1420 would lower that to $50 for the first year and $25 for renewals.
His legislation also would give $2 million out of that health department account to the Department of Agriculture to start administering then program.
The measure is being approached cautiously by the Marijuana Policy Project, the national organization that put the initiative on the 2010 ballot and worked to get it approved.
“In principle, additional safeguards that prevent contamination with molds and pesticides is something we support,” said spokesman Morgan Fox, saying he wants to ensure they are “not too onerous for caregivers in practice.”
But he said he wants to review it further before taking a position.
“I’m particularly curious to see if there would be additional or unintended requirements or restrictions that come with medical marijuana being defined as an agricultural commodity,” Fox said.
It also appears to have the cautious support of Maricopa County Attorney Bill Montgomery who has waged repeated unsuccessful efforts to have the Arizona initiative voided because it runs contrary to federal law where possession of the drug remains a felony.
“Unless and until the federal government takes action we have an obligation to ensure the Arizona Medical Marijuana Act is truly operated as a system for people who have a medical basis for using marijuana,” he told Capitol Media Services. “Replicating the protections the users of any other type of medicine would have is a reasonable and responsible course of action.”
Because the Arizona Medical Marijuana Act was enacted by voters, it can be amended only with a three-fourths vote of both the House and Senate. Borrelli already is moving to get that margin, getting another 78 of the state’s 90 lawmakers to sign on in support, including Senate President Steve Yarbrough and House Speaker J.D. Mesnard.
But it also would have to survive a possible veto by Gov. Doug Ducey who said as recently as last week that he has seen no evidence that marijuana has any legitimate medical uses.
Maricopa County Attorney Bill Montgomery answers questions Friday from members of the Commission on Appellate Court Appointments. (Capitol Media Services photo by Howard Fischer)
The next justice on the Arizona Supreme Court will come from a list of seven candidates that includes four Court of Appeals judges, a public defender, a lawyer in private practice and a controversial county attorney.
Unlike the selection process in March to fill a previously vacant seat on the court, Maricopa County Bill Montgomery had enough votes Friday from the Commission on Appellate Court Appointments to become a finalist. He is joined by three previous finalists Kent Cattani, Maria Elena Cruz and Andrew Jacobs. Richard Gordon, who Gov. Doug Ducey interviewed in the spring, narrowly missed the cut from nine to seven choices.
Also joining the interview list is Sean Brearcliffe, a judge on the Court of Appeals Division II; David Euchner, a Pima County public defender and Randall Howe, a judge on the Court of Appeals Division I. Jennifer Perkins was not selected to advance.
As a Constitutional requirement, the commission must send at least three names to the governor, who makes the final decision, and any more than three must abide by not having more than 60 percent from the same political party. Gordon did not make the cut because of this reason.
Cruz and Jacobs are Democrats, Euchner is a Libertarian and the remaining choices are all Republican.
The commission tentatively approved eight of the candidates, but since Gordon received the fewest votes – of seven – among Republican nominees, he was voted to be struck from the final list.
The process was wildly different than when the commission found the eventual replacement to Justice John Pelander in March. For example, four new members were appointed and confirmed to the commission replacing three who did not vote for Montgomery previously, two of whom are Democrats.
Now of the 13-member commission, Now there are eight Republicans and five independents on the 13-member commission, although only 12 members showed up for the interviews.
All four new members voted for Montgomery to advance; only Phil Townsend and Larry Suciu did not vote for him.
During the due diligence portion of the process, commissioners discussed what they found out about their assigned candidates. Kathryn Townsend, a new commissioner from Pima County, conducted the check on Montgomery and told other commissioners she thinks the reason why Montgomery has a lot of opposition is because “he is a Conservative, white, Christian, cisgendered, heterosexual male,” and that people who don’t like the county attorney “don’t really know him and are responding to a caricature of him.”
Townsend added that if he didn’t make the final list it would be because “he didn’t have the right identity politics.”
Townsend is a registered independent, who self-identifies as Libertatian leaning, and was a former Republican precinct committeeman up until 2012.
Suciu conducted the due diligence on Montgomery last time, and brought it up again before voting.
He said a candidate needs to have “judicial experience” when vying for a spot on the Supreme Court. “You don’t go there for training,” he said. He also brought up last time how Montgomery mentioned in his application he was a part of four appellate cases in his career, but Suciu talked to lawyers on all four who told him he only looked over briefs. This was at least one reason why Suciu did not vote for Montgomery to advance.
Cruz became the sole candidate this time to receive unanimous approval from the 12 commissioners, which bodes well for her chances. Justice James Beene, who replaced Pelander on the court, was the only one in March to receive full support.
Cattani, Euchner and Jacobs both received 11 votes, Brearcliffe and Montgomery had 10 and Howe advanced with nine.
Another major difference from the procedure in March is Montgomery was pressed a lot harder with Justice Scott Bales (who was chief justice then) there to ask questions about his strong beliefs. That on top of an intense effort from the ACLU of Arizona was enough to keep him off the final list, but this time Chief Justice Robert Brutinel, and the other commissioners only asked Montgomery, as well as everyone else, eight questions and provided time for all candidates to speak freely about anything they would care to add.
When it came time to vote on the list to send to Ducey, one commissioner took a shot at the media for speculating some type of agenda about how the members would vote on certain candidates – specifically Montgomery.
“It’s unfair to the process,” Buchanan Davis said, likely referring to a story in the Arizona Mirror that said the new commission appointments could sway in the county attorney’s favor.
Whether that is the case is unclear, but new commissioners were among several who suggested sending a list of seven names instead of the typical five.
The list of seven candidates all would add some type of historical importance were they to be appointed by the governor.
Cattani is the only person in state history to have been in consideration for all seven Supreme Court seats. Cruz would be the first Black or Latina member on the highest court, only the second woman currently, and fifth in state history. Euchner would become the first Libertarian appointed, which came up during the post-interview discussion.
Commission member and former lawmaker Jonathan Paton brought up this piece of trivia and Brutinel quipped that his colleague Bolick would beg to differ, but Paton reminded everyone Bolick was chosen when we was registered as an independent, not as a Libertarian.
Euchner, as well as Brearcliffe would provide some Pima County representation. Pelander was the last justice to come from that county.
And lastly, Howe would become historic for a reason separate from everyone else. Howe would be the first person on the state Supreme Court with cerebral palsy.
Ducey now has 60 days to make his fifth appointment to the Supreme Court.
Maricopa County Attorney Bill Montgomery. (Cronkite News Service Photo by Lindsey Smith)
Their candidate squeezed out of the last screening, allies of Maricopa County Attorney Bill Montgomery are lining up to urge that he be nominated for the Arizona Supreme Court.
More than a dozen attorneys and public officials have submitted comments to the Commission on Appellate Court Appointments listing what they say are his qualifications to sit on the state’s highest court. That includes Attorney General Mark Brnovich, the state’s top prosecutor, who praised Montgomery’s “principled nature and dedication to the rule of law.”
More support is expected when the commission meets Friday to hear comments and interview the nine applicants to replace Scott Bales who retired earlier this month.
The outpouring is occurring four months after the same commission was deciding who to recommend to Gov. Doug Ducey to fill the vacancy created by the resignation of John Pelander. And Montgomery, criticized over positions taken on gay and civil rights, was not on the list of nominees.
Gov. Doug Ducey PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES
That list is crucial: The Arizona Constitution allows him to choose only from those nominated. And if Montgomery can’t get his name on it, he can’t be considered.
What’s changed since March is that the governor has replaced several commission members, including at least three who voted not to forward his name to the governor. But gubernatorial press aide Patrick Ptak told Capitol Media Services that his boss did not decide who to reappoint and who to replace based on their positions on Montgomery.
Critics
While Montgomery’s supporters are lining up for Round 2, so are some who contend that his biases would get in the way of being a judge.
Front and center are the Arizona chapter of the American Civil Liberties Union and Lambda Legal. Both are citing instances where they say Montgomery ignored the law.
One key incident both groups cite dates to 2015 when Montgomery, whose office is required to provide legal assistance to couples who are adopting, refused to do so for a gay couple even after a federal judge ruled that Arizona’s law banning same-sex marriage is unconstitutional. Montgomery contended that decision still did not provide the same rights of gays to adopt.
When that argument faltered, Montgomery pushed the Legislature to repeal entirely, for all couples, that requirement for free legal help. It was only a veto by Ducey that blocked the maneuver.
“It appears unlikely that he would be able to provide impartial justice to LGBT people and their families if he were appointed to the Arizona Supreme Court, let alone the appearance of impartiality,” attorneys for Lambda Legal which gets involved in issues of gay rights.
His views on gay rights also came into focus when he helped to kill a proposed rule for lawyers that would have made it an ethical violation for them to discriminate against clients based on their “gender identity.” So strong was his opposition that Montgomery even sent out a note saying that if the change is approved there will be a “strong effort” to eliminate the requirement that attorneys belong to the State Bar of Arizona.
That killed the plan.
“Mr. Montgomery has made clear over the course of many years that he is unwilling to treat LGBT people equally under the law,” the attorneys for Lambda Legal wrote.
But the view is different from Gary McCaleb, senior counsel of the Alliance Defending Freedom, a Christian public interest law firm, whose organization has often ended up on the other side of issues with Lambda Legal.
McCaleb, who also served on that task force about gender identity, defended Montgomery and the way he handled himself. He said Montgomery stated his opposition “in very measured, logical, and legally grounded terms.”
Alleged Bias
Analise Ortiz, campaign manager for ACLU Arizona, said Montgomery’s issues of bias go beyond sexual orientation.
That includes his 2014 decision to hire John Guandolo, a former FBI agent, to conduct training for law enforcement on the threat of Muslim terrorist groups. The invitation to the training said Guandolo, who left the FBI after an affair with a confidential source, said topics would include “threats posed to our local communities by Hamas, Hezbolla and Sharia Law.”
At the time, Imraan Siddiqi, president of the Council on American-Islamic Relations in Arizona, called Guandolo an “Islamophobe,” saying he was “creating a false correlation between being a Muslim and being prone to violence.”
Montgomery said at the time that the training was “mischaracterized” and said he was “comfortable” with it. But Ortiz said it raises questions about impartiality and whether Montgomery is capable of considering the impact of his decisions on all people.
On the positive side of the ledger, Montgomery also has secured endorsements from Ernest Calderon, a former president of the State Bard of Arizona, David LeBahn, CEO of the Association of Prosecuting Attorneys, Maricopa County Assessor Paul Petersen and several current and former staffers at the Maricopa County Attorneys Office.
Montgomery declined to comment on what has been submitted to the commission.
At least part of whether Montgomery makes the short list sent to Ducey depends on exactly how short that list turns out to be.
The voter-approved constitutional provisions for selecting appellate judges requires the commission to send at least three names to the governor. In that case, no more than two can be from the same party. So if the commissioners want to nominate just one of the two Democrat contenders, or just the Libertarian, they can send only two Republican names to Ducey.
More non-Republicans on the list mean more potential Republican nominees, though there is no set requirement for how many of the nine to be interviewed Friday can be sent. Last time, when Montgomery did not make the cut, the commission sent just five names to Ducey, three Republicans and two Democrats, before the governor chose Republican James Beene.
This will be Ducey’s fifth pick for the court. Aside from replacing two retiring justices – now three – the Republican-controlled Legislature also expanded the court from five to seven, giving Ducey two more slots to fill.
In this Aug. 25, 2014 file photo, Maricopa County Attorney Bill Montgomery speaks during a news conference in Phoenix. Hundreds of immigrants who have been denied bail under a strict Arizona law will now have the opportunity to be released after the U.S. Supreme Court issued a ruling Thursday, Nov. 13, 2014 in the closely watched case. The high court kept intact a lower-court ruling from three weeks ago that struck down the law, which was passed in 2006 amid a series of immigration crackdowns in Arizona over the past decade. Montgomery and Sehriff Joe Arpaio defended the law before the courts.(AP Photo/Ross D. Franklin, File)
Bill Montgomery’s power and influence as an Arizona Supreme Court justice will depend on whether he abides by more traditional standards of the high court by taking less of an activist role at the Capitol.
Stepping back from his influential position as “top cop” in Maricopa County, one of the largest in the United States, would be a dramatic turn for Montgomery.
As county attorney, Montgomery has a well-earned reputation as an influential powerbroker at the Legislature, where he has opposed sweeping criminal justice reforms, and on the campaign trail, where’s he has been an outspoken opponent on matters like medical and recreational marijuana.
Traditionally, Arizona’s top judges take to the sidelines when it comes to debates over policy at the Capitol, and certainly don’t engage in the sort of direct lobbying Montgomery is accustomed to, according to Alessandra Soler, executive director of the ACLU of Arizona.
“I assume that there was this separation of powers and they should not play a role in lobbying,” Soler said. “From what I know, it’s been sort of an informal role where the justices have generally stayed out of lobbying themselves. That’s just how it’s been handled.”
The Arizona Code of Judicial Conduct broadly states that a judge “shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official,” with some exceptions, such as when the conversation is in connection with the legal system or if the judge is lending their particular expertise.
Generally, the code is intended to assure a judge, or in this case justice, doesn’t act in a way that will interfere with his or her duties or disqualify them from cases.
Gov. Doug Ducey, who made Montgomery his fifth, and arguably, most controversial, appointment to the Supreme Court, made clear in announcing the decision what kind of justice he hopes Montgomery will be.
Ducey tweeted that he was looking for a candidate with “an understanding of the law, a well-developed judicial philosophy, appreciation for the separation of powers and a dedication to public service… More broadly, I was looking for an individual who wants to interpret the law – not someone who wants to write the law.”
“Bill Montgomery is that candidate,” Ducey wrote.
That may be a jarring transition for Montgomery, whose vetting process was peppered with criticisms that he lacked judicial experience and had a long track record of controversial political positions as county attorney.
That includes his staunch opposition to marijuana legalization, which in 2015 led to an exchange in which Montgomery called an Arizona veteran an “enemy” of the U.S. Constitution after the veteran admitted to using marijuana recreationally; Montgomery’s repeated, leading role in blocking criminal justice reform efforts at the Arizona Legislature, highlighting the influence he wielded over the chairs of the House and Senate judiciary committees; and his refusal to offer legally-required, free legal assistance to lawful same-sex couples who sought to adopt children.
It’s that record that has critics like Soler concerned about how Montgomery will behave as a justice, from the bench and beyond.
“Justices need to be fair and impartial, and I think that during the last nine years he’s really shown that he lets his personal biases drive his prosecutorial practices and policies, so I think that’s certainly going to be a big question for us – is he going to be fair and impartial? He is going to be somebody who’s expected to uphold the rule of law,” she said.
Republican attorney Kory Langhofer said it will be telling to see how Montgomery navigates issues like criminal justice reform.
Judges are only human, after all, and it’s naive to assume they can set aside all their beliefs when ruling from the high court.
“I strongly suspect that his views on criminal justice are deeply held and will come through in his jurisprudence. But I think his judicial philosophy on other political matters about which he’s expressed very strong opinions may be less predictable,” Langhofer said. “You can simultaneously think the government should pass a certain statute or adopt a certain policy without thinking the Constitution compels that result.”
For now, Langhofer said Arizonans have Montgomery’s word that he understands the difference between judicial and political philosophy.
“I think we need to hear him out on this,” Langhofer said. “He said he appreciates the distinction and will be different as a jurist than he will as a politician, and that may well be true.”
Danny Seiden, a former aide to Ducey who once served as a special assistant county attorney to Montgomery, pointed to the governor’s words as evidence that Ducey is confident in the judge Montgomery can become compared to the county attorney he’s been for years.
That will mean Montgomery has to accept the fact that he’s taking what Seiden called a “less powerful” position as a justice compared to an elected county attorney.
“Prosecutors have a ton of power in the process. That’s why they’re elected, that’s why they have to face the people and stand for their charging decisions and policymaking role in the process. But when you’re a judge, you really just interpret statutes… You don’t make policy,”Seiden said.
Even among the 15 elected county attorneys, Montgomery was “the first among equals,” according to Langhofer.
Serving as a judge, even on the highest court in Arizona, “by far it’s a less powerful position,” Seiden said.
“Now, there’s still a lot of prestige and power that goes with being a Supreme Court justice, but in terms of what you can do to most impact life, I think prosecutors on a day-by-day basis have a lot of power to do that,” Seiden said.
Langhofer said he sees Montgomery maintaining some influence, perhaps “for a session or two, but justices almost inevitably recede into the monastic lifestyle of the Supreme Court.”
Both Seiden and Soler said Montgomery may fit the mold of another Ducey appointee to the Supreme Court: Clint Bolick.
A libertarian and former vice president of litigation at the Goldwater Institute, Bolick was always an outspoken advocate for his political beliefs, and at times has proven he can still be outspoken from the bench. Bolick raised eyebrows in August after he was spotted with his wife, Republican Rep. Shawnna Bolick, at a conference hosted by the American Legislative Exchange Council, a group known for pushing conservative bills at state legislatures.
Bolick previously made headlines after texts revealed that the justice had advised Ducey to appoint Montgomery to a vacant U.S. Senate seat.
Yet Bolick, in his brief time on the high court, has shown he can set aside his political beliefs and rule strictly on the law.
Bolick joined a unanimous decision upholding the rights of voters to bring wide-ranging initiatives to the ballot box in the face of a legal challenge against Arizona’s voter-approved minimum wage – a policy his former employer, the Goldwater Institute, opposed.
“Clint’s probably more opinionated than Bill. He’s written books on topics like school choice. So it’s the same question for Bill as it is for Clint,” Seiden said. “He’s going to approach things on a case-by-case basis, and I’m going to trust him to do the right thing as I would every judge that’s been appointed.”
Montgomery might be further motivated to step back from his role as a policy powerbroker in order to avoid conflicts of interest, which could lead to Montgomery recusing himself from important cases accepted by the Supreme Court, Langhofer added.
In the near future, Montgomery will inevitably have to step aside for certain cases, such as rulings on the death penalty that involve cases handled by the Maricopa County Attorney’s Office, Langhofer said.
Seiden said he’ll take Montgomery at his word that the outgoing county attorney understands the new role he’ll play as a judge.
“I can only speak to what I’ve heard Bill say in the past, and I think Bill’s a firm believer in the separation of powers,” Seiden said. “I believe he would say that the judiciary is not a legislative body, so that would be my guess. I can’t predict the future, but I think that’s probably closer to true.”
While Montgomery may have less influence lobbying the Legislature on policy, Soler said there’s still the political reality that he’s now serving as the backstop in Arizona’s criminal justice system.
“This is the highest court in the state of Arizona, and they’re going to have a huge impact on public policies that impact millions of Arizonans,” Soler said.
Staff writer Julia Shumway contributed to this report.
Arizona’s criminal statutes defining crimes and providing for sentences have worked to protect Arizonans and enhance public safety. Between 2000 and 2016, Arizona’s overall crime rate has fallen 41 percent. Since requiring offenders to serve at least 85 percent of their time for the majority of felonies committed in our state, what is called “truth in sentencing,” Arizona’s overall crime rate has fallen by 58 percent. You would not know that, though, if you only read the ACLU’s “Blueprint for Smart Justice.” You also would not know that 95 percent of Arizona’s inmates are incarcerated for a violent offense, having repeatedly committed felonies, or both.
Bill Montgomery
Simply reading the ACLU’s letter in the Arizona Capitol Times on September 7, 2018, you would not know that for every violent and for the majority of property crimes, there is a crime victim. You would not know that by incarcerating those most responsible for the amount of crime in our community and the violence perpetrated against our fellow citizens saves our society and criminal justice system money by preventing additional crimes and victims. You also would have a vastly skewed understanding of how a felony sentence is imposed.
For 70 percent of the criminal offenses sentenced each year, offenders are sentenced to probation. Those numbers also hold for us in Maricopa County where we additionally offer diversion and deferred prosecution programs for substance abuse and first time felons, something left out of the ACLU Report, as well. In fact, our Felony Pretrial Intervention Program has proven to be of great success. Started in July of 2015, 262 people had completed the program and as of July 2018, only 14 had committed a new felony. That’s a recidivism rate of just 5 percent. Yes, we are expanding that program as a result.
As for the numbers of currently incarcerated drug offenders, the ACLU’s Report and letter continue to push a narrative that ignores the environment in which crime is committed and the criminal histories of those incarcerated. Looking at current statistics, 11.3 percent of those in Arizona’s prisons are incarcerated for drug sales/trafficking. Of that percentage, 24 percent are criminal aliens. With the continuing reality that Arizona is a major thoroughfare for drug smuggling into the United States due to the exploitation of our unsecured southern border by Mexican drug cartels, it is no wonder that we see these numbers. Relatedly, according to the Department of Justice’s Bureau of Justice Statistics, Arizona has the third highest number of incarcerated criminal aliens behind only Florida and Texas. That helps place into context the percentage of incarcerated Latinos in Arizona prisons. But you wouldn’t know about those numbers or the overall criminal environment if all you read was the ACLU Report or letter of September 7.
With respect to drug possession offenders, and using data from the Department of Corrections for October 2017, 3,775 were incarcerated for drug possession. In the breakdown of the numbers, 235, or .6 percent were incarcerated for marijuana, methamphetamine amounted to 2,469 or 65.4 percent, and other drugs amounted to 1,071 or 28.4 percent. Of the 3,775, 46.5 percent had a violent prior felony offense and over 97 percent had a prior felony conviction. For the percentage without a prior felony, in Maricopa County the typical inmate had been convicted of an offense related to heroin or methamphetamine and refused drug treatment and/or rejected probation, which are almost the exclusive means for going to prison for the first time on a drug offense and only after being given multiple opportunities to succeed.
Having highlighted the gross deficiencies in the ACLU’s Report and September letter, there are significant areas of agreement to address future performance of our state’s criminal justice system. I would like to see a significant reduction in the state’s prison population as a result of reducing recidivism and we have a lot of room to work with here. The most recent DOC monthly report, available at https://corrections.az.gov/reports-documents/reports/corrections-glance, states “[s]eventy-seven percent of inmates assessed at intake have significant substance abuse histories.” Yet only 711 or 1.7 percent receive addiction treatment.
What if we provided substance abuse treatment from the point of admission, and cognitive behavioral treatment? What if we just started with drug possession offenders? Re-entry programs are showing significant promise in reducing recidivism and so are diversion and deferred prosecution programs utilizing substance abuse treatment and cognitive behavioral therapies. We should be implementing similar programs over the duration of an inmate’s incarceration. Then, by reducing recidivism we can manage a steady reduction in the prison population without gambling on public safety, and Arizonans would be able to enjoy parks, educational opportunities, visit our libraries, and take advantage of health services in safety.
Arizona’s supposedly “tough on crime” prosecutors would have the public believe that their aggressive charging and sentencing of nonviolent drug users is necessary to keep us safe. Nowhere was that more evident recently than in the August 31 Arizona Daily Star article, “Pima County attorney, public defender spar over prosecutions of drug users,” with elected prosecutor Barbara LaWall defending her office’s high rate of prosecuting drug users.
David Safavian
LaWall, a vocal opponent of criminal justice reform, is focusing a great deal of her office’s resources on low level and nonviolent drug offenses. Fully 70% of the felony drug charges filed by Pima County involve possession of less than two grams of drugs. These small amounts hardly indicate drug kingpins. To the extent that any sales are going on in these cases, it is far more likely that users are selling to friends to support their habit.
People who use and sell drugs must be held accountable. But Barbara LaWall clings to the belief that sending these people to prison and branding them felons for life will somehow cut crime and reduce overdose deaths in Arizona. And LaWall is hardly alone; former Maricopa County Attorney Bill Montgomery made a career out of sending low-level drug offenders to prison. He, too, suggested that these people must be imprisoned in order to keep us safe to justify his role in sending more people to prison for drug crimes than all violent offenses combined.
But facts are stubborn things.
If LaWall and Montgomery are correct that prison for drug users is necessary to protect Arizona communities, then the state’s crime rate should be falling faster than states such as Utah, Texas, and Georgia, where smart sentencing has taken hold and incarceration rates have dropped.
But that is not the case. While crime has generally fallen over the past two decades, violent crime has fallen twice as fast in 32 other states as it has in Arizona. Notably, those states have also simultaneously reduced their imprisonment rate.
In fact, charging these people with felonies and sending them to prison doesn’t make Arizona communities safer. Nor does such an approach serve the interests of taxpayers. All it does is keep Arizona’s imprisonment rate – fifth in the nation – unnecessarily high.
We know from clear and overwhelming data analyses that sentencing policies have a point of diminishing returns. And Arizona is far past that point. In an important study last year, The Pew Charitable Trusts examined whether imprisonment for drug offenses had improved three important public safety metrics: drug use, drug arrest, and overdose death. The landmark study found that “higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.”
For anyone outside of the prosecutorial bubble, LaWall’s approach has another consequence. It increases crime. Why? If you lock a non-violent offender up with a violent one, who is going to come out looking more like the other? The answer is obvious. By sending low-level drug offenders to prison, LaWall increases their likelihood to reoffend. This makes everyone less safe, not more.
In 2007, Texas figured this out and turned to alternatives to prison such as substance abuse treatment beds and drug courts. As a direct result, Texas has closed eight prisons, cut recidivism, and saved taxpayers billions of dollars. And its crime rate dropped to 1967 levels along the way. Texans are safer while fewer people are behind bars.
The Lone Star State is not alone. Other red (and blue) states have embraced diversion and treatment instead of incarceration to reduce overdoses and cut recidivism, a significant driver of crime. Even tough-on-crime Utah and Oklahoma did away with simple possession of drugs as a felony and put savings toward addiction treatment, victim services, and violent crime task forces.
By clinging to outdated and incorrect approaches to the drug problem, prosecutors like Barbara LaWall waste scarce resources while doing little to actually fix the drivers of crime.
The irony is that LaWall apparently knows that what she’s doing isn’t working and is making excuses for her failure. “The bottom line is, drug addiction is a societal problem,” she said. “It goes way beyond what prosecutors are authorized, funded and able to do.”
Maybe it’s time for prosecutors like LaWall to stop defending the status quo and embrace a more effective justice system based on data and evidence. It has worked in Texas, Utah, Georgia and 29 other states. And unless Arizonans are somehow more crime-prone than the rest of the country, it will work here, too.
David Safavian is general counsel for the American Conservative Union Foundation.
Since conservatives got on board with revamping Arizona’s sentencing laws, bills to do that no longer lay unheard, not considered. And as the movement has taken hold over the past few years, a host of groups and people have made their presence known at the Legislature. Following are some of them.
John Allen
Rep. John Allen
John Allen, R-Scottsdale, chairs the House Judiciary Committee, so he’ll have a say on whether any bills that propose changes to the sentencing laws.
Allen has exercised that power by giving a hearing to only two of 13 bills sponsored by Rep. Walt Blackman, R-Snowflake, that proposed changes to the criminal justice system. He allowed a hearing on Blackman’s bill that allows nonviolent prisoners to earn credit to be released at a faster pace, but on the condition an amendment he proposed be attached.
In an act of political retaliation on February 5, Allen held a slate of criminal justice bills and said they would likely never be heard when Blackman joined Democrats on the committee to vote to hold one of Allen’s bills. Although two of the bills he held were his own, Tucson Democrat Rep. Kirsten Engel’s proposal to expand the Arizona Criminal Justice Commission was a casualty.
Americans for Prosperity
With chapters throughout the country, Americans for Prosperity is a conservative libertarian political advocacy group working to build grassroots campaigns, work with coalitions and put policy first. Their national efforts include expanding educational opportunities, implementing discretionary and mandatory spending to reverse the debt crisis, reform current immigration policy and more. In Arizona, the mission is more direct – restore all human dignity and work with legislators who align with the values of the organization.
This year, the group has focused their lobbying efforts on remaking criminal justice at the local level. They have worked closely with Blackman to ensure that their policies provide long-term solutions, like removing barriers for individuals post-release and determining which programs are actually attainable.
While Americans for Prosperity has a specific slant, the group cares more about the position of legislation and initiatives than the position of whoever proposed it.
American Friends Service Committee
Founded more than 100 years ago, the American Friends Service Committee is a Quaker organization working for peace and social justice as a practical expression of faith. They have volunteers in states all over the country who advocate for international peace building, inclusivity, immigrant rights, economic justice and ending mass incarceration.
Arizona’s chapter is based in Tucson where they challenge criminalization, oppose prison expansion and are constantly working to change public opinion. In 2012, the Tucson staff published an in-depth critical analysis of the for-profit prison industry in Arizona. The report claimed the state was wasting money on prison privatization and the prison corporations were buying influence in Arizona government.
Today, the group is educating people on the law that requires Arizona inmates to serve at least 85% of their sentence. They also submitted a proposal this session, reflected in HB2069, that would create a Citizens’ Oversight Committee to hold the Department of Corrections accountable.
Walt Blackman
Rep. Walt Blackman
Walt Blackman, who represents Snowflake in the House, has made the remaking of the state’s sentencing laws his signature issue this session, working with several lobbyists and across party lines to propose a host of bills that would ease access to prison data, provide specific definitions and ranges for punishment and change health care options within correctional facilities.
He even turned down entreaties from the National Republican Congressional Committee to run in the swing 1st Congressional District because he wanted more time in the Legislature to work on criminal justice issues, and he spent the summer leading an ad hoc committee focused on changing how Arizona sentences prisoners.
As the deadline neared for bills to be heard in their chamber of origin, only two of his 13 proposals have gotten a hearing. Blackman has spoken boldly as he’s gone about his crusade, saying he doesn’t answer to influential people at the Capitol who might stand in his way. For instance, when Arizona Supreme Court Justice Bill Montgomery was the Maricopa County attorney he wielded a lot of power at the Legislature and was a barrier to many proposed criminal justice changes, but that only seemed to spark Blackman’s fighting spirit.
“I do not need Mr. Montgomery’s permission to do what I plan to do,” he said in August, before Montgomery’s appointment to the high court.
Creosote Partners
As a progressive lobbying firm that supplies Arizona organizations with money, advice and direct legislative action, Creosote Partners wants to ensure that the politics and legislation reflect the changing diversity of the state. Some of their clients include the American Friends Service Committee, CHISPA, Arizona Attorneys for Criminal Justice, the Arizona School Counselors Association and more.
The organization works with other lobbying groups to create a coalition that builds “consensus” policy that aids both political parties, said Marilyn Rodriguez, one of the four main Creosote lobbyists.
“The advocacy community has done a great job at making sure [criminal justice policy] doesn’t become too political,” Rodriguez said. “By the sheer magnitude of the problem, we cannot be partisan.”
Rodriguez pointed out a disconnect between criminal justice change and immigration policy in Arizona, saying that “immigration policies are criminal justice reform” and she took a long pause before saying that it is “difficult to point to public policy” that has been good for the criminal justice system in Arizona.
Kirsten Engel
Rep. Kirsten Engel
Democrats have long sought changes to Arizona’s criminal code, but their bills – even in this era with a conservative push to revamp the criminal justice laws – have been left to die without a committee hearing. And although Engel’s bills this year were killed by Allen as the House Judiciary Committee he chairs was about to hear them, she’s still the voice of the Democrats on the matter.
The Tucson lawmaker said she was not optimistic about what the incident with Allen may mean for the rest of the criminal justice change agenda from the Democratic caucus or Republicans who are also in favor of revamping the criminal justice laws, at least in the House.
“We haven’t seen any of the reform bills that we have introduced or we’re supporting that are being introduced by Republicans,” Engel said.
Eddie Farnsworth
Sen. Eddie Farnsworth
Eddie Farnsworth, the Gilbert Republican who chairs the Senate Judiciary Committee, is perhaps the ultimate committee gatekeeper, and many criminal justice bills die without hearings in his committee. He’s also, ironically, the legislator with the best track record when it comes to passing bills to change the criminal justice system. The only criminal justice reform bill to pass in 2019 was a Farnsworth measure to allow certain people convicted of low-level drug offenses to earn time off their sentences by completing treatment programs. He also championed legislation to overhaul the state’s civil asset forfeiture statutes in 2017.
Farnsworth enjoys a cozy relationship with Montgomery and the two men share a skepticism of sweeping changes to the criminal justice system. But in his last term before retirement from the Legislature, Farnsworth has relinquished his iron grip a little, voting on the floor for bills he may have opposed in previous sessions and joking about “senioritis.” He agreed to hear one Senate criminal justice bill — a proposal by Sen. J.D. Mesnard, R-Chandler, to require counties to report sentencing data — and hasn’t entirely ruled out entertaining House bills that make it his way.
Donna Hamm
Middle Ground Prison Reform
By working with public education, legislative advocacy and litigation, Middle Ground Prison Reform uses volunteers to address issues that concern prisoners and their families. They highlight that Arizona has a harsh criminal code with a lack of medical care, negligent treatment of the mentally ill, overuse of solitary confinement and a shortage of adequate rehabilitative opportunities.
Last year, the group was the only prisoner rights advocacy group to support SB1310, which passed, requiring the Department of Corrections to notify prisoners of the credits they earned that could lead to their early release.
The organization has taken a position on 25-30 bills that were introduced this session and has worked closely with Blackman on revamping sentencing laws.
The director, Donna Leone Hamm, has been appointed to two committees within the Department of Corrections that are now inactive. The department “didn’t appreciate input [from constituents] so meetings stopped,” Hamm said. Hamm said that it was “unfortunate” that the department is still not receptive to constructive criticism and only responds to litigation.
Sheila Polk
Yavapai County Attorney Sheila Polk
Even though Montgomery’s influence on criminal justice policy diminished at the Legislature because of his new role on the Supreme Court, Yavapai County Attorney Sheila Polk is still around and not shy about sharing their opinions with lawmakers.
Polk, who has held office since 2001, has long been an ardent opponent of legalized marijuana – medicinal and recreational – and uses hardline policies in enforcing drug laws.
She was also instrumental in 2019 in the passage of a bill that aimed to stop prosecutors from using enhanced sentences intended for repeat offenders on people who don’t have previous convictions. Gov. Doug Ducey vetoed the bill after Pima County Attorney Barbara LaWall and Montgomery bent his ear.
This year Polk persuaded Senate President Karen Fann to introduce legislation to require mandatory five-year prison sentences for people selling even small amounts of fentanyl.
Kurt Altman
Right on Crime
Emphasizing cost effective ways to approach enhancing public safety, Right on Crime works with several states and their conservative caucuses to pass juvenile justice reform bills, close prisons and establish committees that oversee the use of taxpayer dollars when it comes to state corrections.
The organization says the ideal criminal justice system works to rehabilitate for reentry into society.
Kurt Altman, whose career includes stints as a federal and county prosecutor and with the Goldwater Institute, is the Arizona director for Right on Crime. He promotes the organization’s positions in the Arizona and New Mexico legislatures while simultaneously running a law firm that defends criminals of all types.
Altman has published several articles, all about the organization’s values applied to policy in Arizona. In a recent article, Altman suggested that Phoenix jails should follow the models in Tucson and Pima County by reducing jail populations to save tax dollars.
Ben Toma
Rep. Ben Toma
Ben Toma, R-Peoria, made his criminal justice debut last year as he shepherded to passage a bill that aimed to stop prosecutors from using enhanced sentences intended for repeat offenders on people who don’t have previous convictions. Toma made changes to the bill to appease county attorneys and get them to accept the legislation even though they weren’t in full support. But Ducey vetoed the bill after top prosecutors in Arizona’s largest counties turned around and lobbied him for the veto.
The problem when someone doesn’t keep their word is that you can’t trust them anymore,” Toma said at the time. “I don’t know where we go from here if someone has no honor.”
Toma said Blackman’s plan to go around Allen’s committee is good, but Toma tried the same last year with then-House Speaker Mesnard’s help. It appeared to work until Ducey vetoed the measure. Toma feels there is enough support for revamping criminal justice in both parties, but sometimes things don’t always make it “across the finish line.”
This year, one of his proposals, HB2359, would prohibit state agencies from denying an occupational license to any qualified applicant who happens to have a past drug offense. The bill has the OK from the House Rules Committee, so far.
Toma also proposes an expungement bill that would allow courts to seal arrest and conviction records, although it hadn’t received a committee hearing.
“From a business perspective, it doesn’t make sense to have people stigmatized forever,” Toma said.
Reporter Julia Shumway contributed to this report.
Maricopa County Attorney Bill Montgomery did not receive enough votes to advance on the shortlist of Supreme Court nominees. He needed at least seven votes to be considered, and only mustered five. (AP Photo/Ross D. Franklin, File)
Maricopa County Attorney Bill Montgomery has won three consecutive elections as the county’s chief prosecutor, but he couldn’t get the few votes needed to make it on the shortlist of Arizona Supreme Court nominees.
Montgomery’s bid to the high court drew the most endorsements and opposition among the 13 applicants. He had the backing of political bigwigs like Arizona Attorney General Mark Brnovich, who gave his endorsement in person before the Commission on Appellate Court Appointments on March 1, former U.S. Sen. Jon Kyl and GOP operative Steve Twist, who both wrote letters on Mongomery’s behalf.
But when it came time for his interview and background check, there was one thing weighing on Montgomery that the other semi-finalist candidates did not have to deal with – a political track record.
Being the only politician vying for this seat means the general public knows where you stand on certain issues.
Mark Harrison, an attorney at Osborn Maledon in Phoenix, said Montgomery did not advance because he is simply not qualified to serve on the court.
“He is a politician with no meaningful experience as a practicing lawyer and none in appellate practice,” he said.
In his application, Montgomery listed he had only handled 15 appellate matters and argued just one of those. He also has a limited amount of hands-on experience as a lawyer, which made him an outlier compared to the others.
The commission settled on Court of Appeals Division I judges James Beene, Kent Cattani and Maria Elena Cruz; Pima County Superior Court Judge Richard Gordon; and Snell & Wilmer attorney Andrew Jacobs. Gov. Doug Ducey has until April 30 to appoint one of these five nominees to fill the seat of Justice John Pelander, who retired March 1.
Harrison, an attorney for almost 60 years, said he could not think of any other candidate who generated so much public opposition, which he thinks is attributable to the general consensus among lawyers that, “… he is fundamentally an opportunistic politician whose policies are so rigid and ideologically driven that he could not be as impartial as judges are expected to be.”
Harrison also said to his knowledge he could not recall any comparable situation involving a political candidate since the merit selection system was initiated in the mid-1970s.
In the lead up to the interview with the commission, Montgomery received the largest negative response of the candidates from the public, which was spearheaded by an ACLU of Arizona campaign raising concerns for his interest in the Supreme Court position. According to the ACLU, nearly 1,000 people submitted the same ACLU auto-generated letter addressing those concerns. If Montgomery decides to keep his name in consideration, the ACLU of Arizona said it may do the same thing again.
The ACLU letter stated that Montgomery allowed prosecutorial misconduct to go unchecked in his office and he bungled a high profile use-of-force case in which Glendale police used an electronic stun gun on a man.
It was the Glendale incident that drew an unprecedented public remark from Ducey about a Supreme Court applicant.
A Glendale officer, who was accused of abuse of force for kicking Johnny Wheatcroft in the groin and shocking him in his genitals with a stun gun after pulling off his shorts was suspended for 30 hours. The case at first was not referred for an outside criminal investigation. After release of the body cam footage, followed by public outcry, Montgomery told the victim’s attorney the his office would re-examine the case.
Ducey said the investigation was “whitewashed,” and he told 12News he would “love to see the County Attorney’s Office reopen the investigation.”
A spokeswoman for Montgomery told The Arizona Republic that Montgomery was not motivated by the governor’s comments and that he had already contacted the FBI to reinvestigate “long before” he announced his decision.
Ducey’s comments came just a few months after Supreme Court Justice Clint Bolick recommended in a text message to Ducey that Montgomery should be appointed to fill the U.S. Senate seat vacated by the death of John McCain.
The Phoenix New Timesreported in November that Bolick’s text read: “He is respected by everyone, supported by all parts of the GOP, yet unfailingly conservative … [and] young enough to be there for a long time…”
Those points could be echoed for a spot on the Supreme Court., but unlike the U.S. Senate, the Supreme Court has a mandatory retirement age of 70. Montgomery just turned 52.
Ducey wrote to Bolick in response: “Always value your advice and recommendations. I share your admiration of Bill. He is one of our finest.”
All justices on the Supreme Court must be non-partisan while serving on the bench, so one’s political party should, in theory, be irrelevant. If Bolick’s words about Montgomery are accurate, being “unfailingly conservative” would be a concern of whether Montgomery would be able to put his personal views aside, which was brought up before his interview.
Those personal views include how Montgomery is widely known as a staunch marijuana opponent, to the point where he once called a Vietnam veteran an enemy of the Constitution for using recreational marijuana. Montgomery has also made his views known that he does not support sentencing reform and certain LGBT rights.
A letter on behalf of the Board of Directors of the Arizona LGBT Bar Association from Randal McDonald of the law firm Perkins Coie addressed how LGBT interests would be harmed if Montgomery were to be appointed to the Supreme Court.
“Mr. Montgomery vocally and publicly refused to assist same-sex couples seek[sic] adoption services despite clear Arizona law that required county attorneys to provide these services to all applicants,” McDonald wrote.
Montgomery’s vocal remarks were in response to when the U.S. Supreme Court struck down state bans on same-sex marriage in 2015.
“In the years to come, the Arizona Supreme Court will consider many cases that impact the rights of LGBT individuals and the Arizona LGBT Bar Association is concerned Mr. Montgomery will not be able to consider these cases fairly and impartially because of his history of opposing for LGBT people and their families,” McDonald wrote.
All of the concerns addressed were framed into a four-part question Montgomery had to answer during his interview that also included whether Montgomery is a politician or a jurist.
At the March 1 interviews, each candidate was given the same set of questions, but it was Supreme Court Chief Justice Scott Bales who asked Montgomery the extra, four-part question not posed to the others.
Montgomery took his time answering point-by-point, but it ultimately did not sway enough of the commissioners.
He said politics only constituted a tiny portion of his job since elections only happen once every four years, and that his daily duties aren’t as “sexy to write about, so folks generally aren’t familiar with that.”
Montgomery also addressed the concerns about whether or not he could put his personal beliefs aside to be fair and impartial as is expected of a justice.
“Probably the number one thing to look to that would address all of those concerns is the oath of office,” Montgomery said. “Each of those oaths of office have required me [and] would require me to uphold the Constitution of the United States and the Constitution laws in the state of Arizona.” He then proceeded to recite the oath.
When it came time to vote on the final list, he only received five votes. He needed at least seven to advance.
Montgomery did not provide comment for this story.
This might not be Montgomery’s final attempt at the Supreme Court, though. The chief justice announced on March 5 his plans to retire later this year, and according to the Commission on Appellate Court Appointments rules of procedure, if there are two vacancies within one year, all applications submitted for the first vacancy would roll over for the second. However, an applicant could opt to withdraw his or her name from contention.
A poll observer stretches outside a polling station on Election Day, early, Tuesday, Nov. 3, 2020, in Glendale, Ariz. (AP Photo/Matt York)
With just less a year to go until the 2022 Arizona primary, most races have started to take shape.
Legislative and congressional districts could change dramatically after redistricting, and some newcomers and incumbents alike are waiting to see what the new districts look like before they decide whether to jump into a race. Others are taking advantage of a state law that allows them to gather signatures from both their old and new districts.
Statewide, only Superintendent of Public Instruction Kathy Hoffman and U.S. Sen. Mark Kelly are running for re-election to their current posts, leaving the races for governor, secretary of state, attorney general and treasurer wide open.
It all adds up to a lengthy and expensive campaign season in a state that finally started its long-anticipated blue shift and an election cycle that historically would favor Republicans.
That advantage is twofold: first, GOP voters more consistently turn out in non-presidential elections, and Democrats hold the White House and Congress. Typically, the president’s party does worse in midterm elections.
Pollster Paul Bentz said 2022 is more likely to resemble 2010 than 2018. In 2010, Arizona Republicans had a 12-point turnout advantage, compared to seven points in 2018, when Democrats worked hard to mobilize voters and succeeded in flipping the U.S. House and electing Sen. Kyrsten Sinema, Secretary of State Katie Hobbs and Hoffman.
“I do think Republicans will be more motivated to participate because (Joe) Biden won the election,” he said. “The only caveat to that is all of this election fraud discussion, and all of the behavior changes that we saw because the former president cast doubt on early voting in Arizona. That might impact what should traditionally be a very Republican year.”
Multiple Republican lawmakers have warned that their voters have said they won’t participate in what they view as a rigged system, and Bentz said Georgia’s Senate runoffs bore out some of those fears. Democrats won both January elections with lower-than-usual Republican turnout after former President Donald Trump spent two months claiming the election system was rigged.
“It should be a motivation for Republicans to try to wrap this audit up, because the longer the audit drags on, the less time they have to recover from it and restore integrity and Republican belief in the system enough to take advantage of what is traditionally a more Republican-friendly cycle,” Bentz said.
State races
The top of the ticket for statewide races pits five Republican candidates against three Democrats, with front-runners already emerging. Former TV anchor Kari Lake is in prime position to take the Republican nomination if she can keep her early grassroots momentum, and her likely opponent at this point is Secretary of State Katie Hobbs, who continues to capitalize on her opposition to the Senate’s audit.
Republican gubernatorial candidate Kari Lake leaves the stage at the “Rally to Protect Our Elections” hosted by Turning Point Action at Arizona Federal Theatre in Phoenix on July 24, 2021. Lake, a former news anchor, is in prime position to take the Republican nomination if she can keep her early grassroots momentum. PHOTO BY GAGE SKIDMORE/THE STAR NEWS NETWORK
Lake is running against former Congressman Matt Salmon, who lost the gubernatorial race to Janet Napolitano two decades ago; former regent Karrin Taylor Robson; State Treasurer Kimberly Yee, hoping to follow Gov. Doug Ducey’s footsteps to the governorship; and businessman Steve Gaynor, who lost his 2018 bid for secretary of state and could self-fundraise as much as $10 million.
Hobbs is joined by former Nogales Mayor Marco Lopez and state Rep. Aaron Lieberman, who is expected to resign from his seat before next year to campaign full time.
Depending on how long it lasts, the audit could determine the fate of secretary of state candidates, which could be a major swing for Democrats in the field. It’s a race between House Minority Leader Reginald Bolding and former Maricopa County Recorder Adrian Fontes. Fontes has name recognition, but Bolding has the advantage of not recently losing the county needed to win a statewide election as a Democrat.
That winner will take on the victor between three lawmakers and an ad executive. Stop the Steal supporters Rep. Mark Finchem, R-Oro Valley, and Rep. Shawnna Bolick, R-Phoenix, are locked in a two-person race to scoop up votes from hardcore audit supporters, while Sen. Michelle Ugenti-Rita of Scottsdale is distancing herself from the crowd that recently booed her off stage and is running on her extensive election integrity track record. Beau Lane is also in the mix, but hasn’t made much noise yet, outside of a video that claims people are spreading lies about the election – the 2016 election.
The race to become the state’s top prosecutor hasn’t gotten a lot of attention yet, which could signal a problem candidates will face in 2022 – not enough voters care about down ballot races. That’s particularly problematic for Democrats, who historically are worse at turning out – and voting down-ballot – than Republicans.
Kris Mayes, a former Republican from Prescott, seems like the favorite on the Democratic side against Rep. Diego Rodriguez, but progressives are skeptical, considering her Republican history. Mayes has a history of working across party lines – she was on Democratic Governor Napolitano’s staff before being appointed to the Arizona Corporation Commission.
In this Dec. 14, 2020, file photo, Arizona Secretary of State Katie Hobbs addresses the members of Arizona’s Electoral College in Phoenix. Hobbs on Wednesday, June 2, 2021, announced her candidacy for the Democratic nomination for governor in 2022 while denouncing the Republican-controlled state Senate’s ongoing audit of the 2020 presidential election. (AP Photo/Ross D. Franklin, Pool, File)
Meanwhile, the most recognition Rodriguez has received came in a loss to now-Supreme Court Justice Bill Montgomery in the 2016 race for Maricopa County attorney. Robert McWhirter, who finished the 2020 Democratic primary for county attorney in last place, is also running.
So far, three Republicans are in the race and none have much name ID, though former congressional candidate Tiffany Shedd has campaign experience. Former Supreme Court Justice Andrew Gould was the first to jump in, followed by Shedd and Lacy Cooper, who formerly worked in the U.S. Attorney’s Office in Arizona.
All three plan to run on the top Republican issue – the border, so it’ll be other issues that will separate them. Perennial losing candidate Rodney Glassman and Arizona Chamber of Commerce and Industry’s Dawn Grove, who was just named as one of AZ Big Media’s most influential women, also entered the race.
Yee’s gubernatorial run leaves open the treasurer’s race for the seventh consecutive election. So far on the Republican side, Rep. Regina Cobb of Kingman and Sen. David Livingston of Peoria are in the race and Corporation Commissioner Justin Olson, a former East Valley lawmaker, is expected to jump in any day. Cobb is entering her fourth year as chair of the budget-setting House Appropriations Committee, and Livingston has spent his past several years drafting complex financial legislation.
No Democrats have yet entered the race, nor has a Democrat been elected treasurer since 1964. Sen. Tony Navarrete is the only Democrat expected to run this year.
Hoffman is in prime position to remain as superintendent of public instruction. She will face the winner of a crowded field of mostly unknown Republicans plus former state schools superintendent and former attorney general Tom Horne.
The five-person Corporation Commission, widely considered the state’s fourth branch of government, has two available seats next year and offers a chance for Democrats to seize a narrow majority.
Olson, who was first appointed to fill former Republican Commissioner Doug Little’s seat in 2017, isn’t expected to run again. Democrat Sandra Kennedy is seeking re-election to her seat.
Olson’s deputy policy adviser Nick Myers is running on a GOP slate with Mesa City Councilor Kevin Thompson. Ex-commissioner Little and public relations official Kim Owens are also seeking the Republican nomination.
Kennedy will run on a slate with Tempe City Councilor and environmental activist Lauren Kuby as the Democrats in the race.
Legislative
It’s still too early to make any predictions about the balance of the next Legislature until new maps are drawn, Bentz said. And with a one-vote margin in each chamber, all eyes are on the Independent Redistricting Commission.
Democrats fear the commission, vetted by Ducey appointees, will draw maps that favor Republicans. Republicans, who have spent the past decade insisting the current districts are gerrymandered in Democrats’ favor, say they think they’ll finally have “fair” districts.
From left, Paul Boyer and Anthony Kern.
While many candidates, including roughly half the current Legislature, have filed to run, their districts might change. Republican voters anticipate a high-profile primary matchup between former lawmaker Anthony Kern and Sen. Paul Boyer, R-Glendale. Kern is a Trump elector, short-lived audit volunteer, and outspoken figure in the “Stop the Steal” movement. He was photographed on the U.S. Capitol steps and video recorded in the doorway of the building after his fellow protesters breached multiple barriers and broke into the building on January 6. Boyer is the most vocal GOP critic of the audit and the first Republican legislator to publicly admit Biden won the election.
But the two could end up in different districts, given that the northwest Valley has experienced substantial growth over the past decade and their districts will likely be geographically smaller.
In other current swing districts, Democrats may get a leg up in Chandler as Rep. Jeff Weninger hits term limits and the current Legislative District 17 won’t have a Republican incumbent. Democratic consultants roundly criticized last year’s decision to run a so-called single shot campaign in the district, which already had a Democratic representative in Jennifer Pawlik.
A north Phoenix race could also change depending on whether Lieberman serves his full term or resigns to focus on his gubernatorial campaign. Resigning would give his appointed replacement the advantage of incumbency.
Federal
Several Republicans have announced their intent to take Kelly in Arizona’s fourth Senate election in as many cycles. While Attorney General Mark Brnovich appears to have a slight edge over other Republicans in what little polling is available so far, he may struggle to get the one endorsement that could matter the most in a GOP primary.
Trump has repeatedly alleged that the 2020 election was stolen from him and has castigated Brnovich and Ducey for not overturning President Biden’s narrow win in Arizona.
Ducey has said he is not running for Senate, but it hasn’t completely squelched speculation he might jump in. Florida Sen. Rick Scott, chair of the National Republican Senatorial Committee, mused in a podcast interview in July that he might be able to get Ducey to run.
Gov. Doug Ducey( AP Photo/Ross D. Franklin, Pool, File)
“I think we have a shot with Doug Ducey,” Scott said. “I think there’s a chance he will run. He’s a very popular governor.”
Also running for the GOP U.S. Senate nomination are Blake Masters, who is backed by billionaire Peter Thiel; former Arizona National Guard Leader Maj. Gen. Michael “Mick” McGuire, and businessman Jim Lamon, who launched his campaign with ads in New Jersey to attract Trump’s attention.
The balance of power in Arizona’s congressional delegation may come down to where lines are drawn in southern Arizona. Ann Kirkpatrick is the only incumbent so far to announce she won’t run again, and the 2nd Congressional District flipped parties twice over the past decade.
“I think southern Arizona in that District 2 general area, which has been a swing district in the past, is likely to be the one that most people are paying attention to because those lines will really make a difference on if that one stays Democrat or Republican,” Bentz said.
Justice word engraved on the pediment of the courthouse
Arizona lawmakers stymied this year in their quests to revamp the criminal justice system are re-evaluating how to work with prosecutors next year after what some described as an 11th-hour betrayal.
The session began with high hopes from lawmakers across the political spectrum that this would be the year Arizona passed what they say is substantive justice reform. It ended in a fizzle, with only two bills alive near the end of the 134-day session. One, which will let some drug offenders out of prison early, is now law. Gov. Doug Ducey vetoed the other, SB 1334, which aimed to stop prosecutors from using enhanced sentences intended for repeat offenders on people who don’t have previous convictions.
The vetoed bill’s main sponsors, Rep. Ben Toma, R-Peoria, and Sen. J.D. Mesnard, R-Chandler, adopted language from one prosecutor, Yavapai County Attorney Sheila Polk, that still would have allowed prosecutors to use enhanced sentences for people who’ve never before been convicted. They gave up on requiring the court system to collect and report data on plea deals and sentencing.
“My side of things moved a lot,” Mesnard said. “We scaled this bill down a lot.”
Supporters of the bill made all of those changes because of a promise that county attorneys would at least accept the legislation, even if they weren’t fully on board. Instead, the top prosecutors in Arizona’s largest counties turned around and lobbied Ducey to veto it.
“The problem when someone doesn’t keep their word is that you can’t trust them anymore,” Toma said. “I don’t know where we go from here if someone has no honor.”
Gatekeepers
While revamping criminal justice is widely supported by the Legislature as a whole — the few bills lawmakers were able to vote on passed on overwhelming margins — most legislation dealing with it had a difficult time moving forward this session.
Advocates for change were dealt their first blow before the session even started, when House Speaker Rusty Bowers dissolved the Sentencing and Recidivism Reform Committee that then-Rep. David Stringer, R-Prescott, was slated to chair. That meant criminal justice legislation in the House headed instead to the House Judiciary Committee, where they received a colder reception from Chairman John Allen, R-Scottsdale, than they would have from Stringer.
Allen’s committee never heard bills, many sponsored by fellow Republicans, that would have let inmates reduce their sentences by going through treatment programs, allowed judges discretion in sentencing and reduced penalties for possessing a small amount of marijuana, among other things.
Toma’s bill regarding repetitive offenders was one of the few that made it out of the House Judiciary Committee, and it passed the House on a 57-2 vote. But it ran into another committee gatekeeper in Senate: Judiciary Chairman Eddie Farnsworth, R-Gilbert, who prides himself on killing “bad bills.”
Toma found an ally in Mesnard, who said enhanced sentences make the most sense for someone who commits a crime, serves his sentence and then commits another crime, proving he hasn’t learned his lesson from the first sentence.
“We want a justice system that really is based on justice,” Mesnard said.
And Mesnard said he wanted to see more data collected on how prosecutors use the ability to charge people with crimes that carry enhanced sentences. A frustrating aspect of working on criminal justice reform is hearing conflicting descriptions of what’s happening in the justice system, he said.
Advocates for changing sentencing guidelines, including criminal defense attorneys, say prosecutors use mandatory minimum sentences like those included in the state’s repetitive offender statutes as a cudgel to force plea deals.
Pima County Public Defender Joel Feinman said defendants facing long sentences often feel pressured to take plea deals that can result in years in prison.
“The biggest problem is that it works in conjunction with the prosecutors’ complete control over plea agreements to exert a tremendous amount of pressure on the defendant to take pleas that are not very good,” Feinman said. “I have had clients who I believe were innocent who went to jail, went to prison because they didn’t want to run the risk of going to trial.”
Bad Faith
Prosecutors including Maricopa County Attorney Bill Montgomery and Pima County Attorney Barbara LaWall, meanwhile, say that mandatory minimum sentencing is the best way to deter repeat offenders.
Barbara LaWall
In an email, La Wall said: “We (my office and AZ’s prosecutors) lobbied against SB 1334 and when it passed, we subsequently requested the Governor to veto this bill because it was highly problematic and created a number of significant unintended consequences that would adversely impact the safety of Pima County and other Arizona communities.”
In a letter the two sent to Ducey that LaWall shared with the Arizona Capitol Times, they said the bill “creates a strong incentive for repeat offenders to commit as many crimes as they can before being caught because regardless of the number of people or businesses they victimize, whether two or 20, SB 1334 requires them to be sentenced as a first-time offender for each count.”
Mesnard dismissed that argument as illogical. People who commit multiple crimes face longer sentences than people who just commit one crime, even without enhanced sentences.
“A person who commits Crime A gets Sentence B,” he said. “A person who commits Crime A 10 times will get Sentence B 10 times.”
And while Mesnard said he plans to continue talking with prosecutors, particularly Montgomery, while working on criminal justice issues in future sessions, other lawmakers are frustrated by the two prosecutors fighting against the bill.
“Others may feel that negotiations happened in bad faith or poisoned the well,” Mesnard said. “Others have expressed a sentiment that if we can’t get something this narrow passed, it will be a bleak three years.”
Rep. Walter Blackman, R-Snowflake, is among them. Blackman said he turned down the National Republican Congressional Committee when it asked him to run this spring because he still wants to work on criminal justice reform.
He saw SB 1334 as an “incremental step forward” toward the comprehensive justice reform he seeks, which aims to reduce the number of people entering the prison system and provide opportunities for those already incarcerated to integrate back into society.
Blackman plans to spend this summer working on improving his HB 2270, which would have allowed prisoners who complete education or self-improvement programs to be released earlier. It died without a committee hearing. He said the late death of SB 1334 is a disheartening sign for the future of his legislation.
“I didn’t know that there were backroom deals for them to go back and change what we had agreed to,” he said. “It’s disheartening to know that is what’s lying ahead of me and others’ efforts to pass criminal justice reform.”
Prosecutors who opposed the sentencing bill should be prepared to see something pass next year, Mesnard said. He noted that the bill had broad support in the Legislature — only three of the 90 legislators voted against it — and opponents could learn from the 2017 passage of a law altering the state’s civil asset forfeiture laws.
Prosecutors decried that bill, which took away some of their leeway to seize property from people suspected of, but not charged with, crimes. However, after prosecutors were able to kill it in 2015, the bill passed both chambers on overwhelming margins in 2017 and was supported by groups across the political spectrum, as this year’s repetitive offenders bill was.
“Folks who are opposed need to be careful that they don’t end up drawing too hard a line in the sand or rely on the governor’s veto,” Mesnard said.
Several bills to revamp criminal justice in Arizona appear to be on life support after the Republican House Judiciary chair decided to hold a trio of bills in retaliation to his own bill being held.
Rep. John Allen, R-Scottsdale, who chairs the House Judiciary Committee, was not pleased when his bill, which requires local law enforcement agencies to share data with the Arizona Criminal Justice Commission, was held by the committee’s Democrats and Vice Chair Walt Blackman, R-Snowflake.
After a lengthy debate where the Democrats wanted more specificity for the data the Arizona Criminal Justice Commission would receive, conversations started to get heated. Rep. Kirsten Engel, D-Tucson, proposed a striker amendment to that effect, which did not pass and the committee eventually voted to hold Allen’s bill, who then held all other commission bills for the day.
Blackman and Allen then exchanged words in loud tones, asking each other if they had a problem or if they needed to settle their differences in private.
The testy exchange was over Blackman’s concerns that Allen was reacting to the fact that he was voting with Democrats. Allen dismissed Blackman’s concerns, causing Blackman to “excuse” himself from the room and letting the door slam behind him.
Blackman said on February 6 in a press conference he is willing to go around Allen if necessary, but was quick to point out that as a military guy he doesn’t just “jump the chain of command.”
“I’m not saying they’re part of the chain of command, but there is a procedure, but if something needs to be done, I’m going to do it,” Blackman said.
He announced his earned-release credit bill he hopes will go through the House Public Safety Committee rather than let Allen make the decisions that are “bigger” than any lawmaker.
Blackman introduced the bill, HB2808, on February 6. Deriving from work that Blackman’s ad hoc committee on sentencing reform conducted over the interim, the legislation would give eligible prisoners six days off their sentence for every one day served. Prisoners who have no conviction for a violent or aggravated felony on their record and who complete a “drug treatment…or other major self-improvement program” are eligible for one and-a-half days off their sentence for every six days served.
The bill is co-sponsored by several Republicans, many of whom have expressed their support for criminal justice changes in the past, such as Reps. Ben Toma, R-Peoria, and Bret Roberts, R-Maricopa. Others, such as Rep. Jay Lawrence, a Scottsdale Republican on the House Judiciary Committee who is often skeptical of sentencing changes, are more surprising.
But despite Blackman’s bullishness, the dissent in Judiciary may set back revamping sentencing laws.
Engel told Arizona Capitol Times she was not optimistic about what this may mean for the rest of the criminal justice change agenda from the Democratic caucus or Republicans who are also in favor of revamping the criminal justice laws, at least in the House.
“We really did have a problem with that amendment language,” Engel said referring to Allen’s HB 2227. And looking forward, Engel said she’s “not too optimistic” other criminal justice change bills will be heard in committee given how quickly Allen flipped out over holding his bill.
“We haven’t seen any of the reform bills that we have introduced or we’re supporting that are being introduced by Republicans,” she said.
Engel remains hopeful for one bill in the Senate.
Sen. J.D. Mesnard, R-Chandler, is sponsoring an effort similar to the House that would require detailed sentencing reports from every county attorney and he is continuing to hold meetings with prosecutors and criminal justice advocates to improve his bill, something he said should help when he asks Sen. Eddie Farnsworth, R-Gilbert, the House Judiciary chair, to hear it.
“I can tell you that at least on the surface, both sides are interested in data,” Mesnard said.
He tried to include reporting requirements in a bill he and Toma worked on last year to prevent prosecutors from charging as repeat offenders people who hadn’t previously been sentenced, but removed those requirements when prosecutors protested.
“They’ve been at the table talking about reporting,” Mesnard said. “They weren’t necessarily opposed to the concept. They just wanted more time to think about it.”
Toma said Blackman’s plan to go around Allen’s committee is good, but Toma tried the same last year (with Mesnard’s help) and it appeared to work until Gov. Doug Ducey vetoed the measure. He feels there is enough support for revamping criminal justice in both parties, but sometimes things don’t always make it “across the finish line.”
One thing not in the mix this session is the appearance of the Maricopa County Attorney’s Office not having a presence at the Capitol. Former County Attorney Bill Montgomery is now on the Arizona Supreme Court, and Allister Adel, the new chief prosecutor, has said on several occasions that her priorities are to work on the office ahead of any legislation.
Montgomery had a heavy presence in the past on the opposite side of Toma and Blackman, while Adel has shown some promise to push a pro-criminal justice change agenda by including Blackman on her transition team.
In the Senate, President Karen Fann, R-Prescott, said she believed her chamber was willing to let the House take the lead on criminal justice issues.
“We know that Representative Blackman and those guys, that this is kind of their baby,” Fann said. “That’s one of the reasons why you have not seen senators drop a bunch of bills, because we know that they’re talking about that over there and they’ve been working on it really hard.”
Fann, who serves on the board of directors of the conservative American Legislative Exchange Council, added that more Republicans are willing to get on board with changing the criminal justice system because ALEC has pushed such measures, particularly as they relate to nonviolent drug users.
“Nobody wants to be soft on crime, but I think people are finally saying, you know what, perhaps because of drug problems or something else these guys are nonviolent,” she said. “They never would have been shoplifting or have robbed a house or whatever they did if it weren’t for their drug habit.”
Along with Reps. Noel Campbell, R-Prescott, and Steve Pierce, R-Prescott, Fann also introduced legislation at the behest of Yavapai County Attorney Sheila Polk to require mandatory five-year prison sentences for people selling even small amounts of fentanyl. She said there’s no contradiction between that bill and a push to help, rather than incarcerate, people who are addicted, though even House Judiciary members who voted for the bill said they feared it could catch people who sell drugs to support their own habit.
Democrats believe that bill won’t be heard in the full House, and it’s up to Allen and Farnsworth to dictate how everything else will go.
Wendy Rogers speaks at a 2014 fundraiser in Scottsdale. (Photo by Gage Skidmore/Flickr)
The former employer of a Wendy Rogers political opponent wants the state’s high court to decide whether a political candidate can be liable for defaming a third party while attacking the political rival.
Rogers argues the ongoing litigation leftover from her failed 2018 congressional run is already chilling political speech, and that if it becomes standard for cases like this to go to trial, the chilling effect would be “catastrophic.”
“Allowing a third-party employer of a candidate to sue where truthful statements criticize that candidate would circumvent the First Amendment and chill speech in the most essential area of public discourse,” Rogers’s attorneys, E. Jeffrey Walsh and Dominic Draye wrote to persuade the Arizona Supreme Court to reject the case.
In a 2018 radio attack ad, then-congressional candidate Rogers went after one of her primary opponents, former state Sen Steve Smith and his job at the Young Agency, a modeling agency that represents models and actors, about half of whom are children. The ad’s narrator said in part that “Smith is a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”
Steve Smith (Photo by Gage Skidmore)
On her campaign’s website, www.slimysteve.com, Rogers also stated that Smith “personally advertises on the website, Model Mayhem, a website full of pornographic material, which has also been involved in human trafficking, according to ABC News, and has been reported as having a ‘dangerous history.’”
Smith threatened to sue, and after the election, Pamela Young, owner of the Young Agency, did sue for defamation and false light invasion of privacy.
Young alleged the ads implied she “had committed or supported the commission of sex crimes.”
Rogers’ attorneys said that if the court allowed the case to go to trial, it “would chill future politicians from introducing an opponent’s occupation or business practices into future elections” because the criticism might “inferentially concern” an opponent’s employer and “lead to personal civil liability.”
The Court of Appeals overturned the lower court in a split decision in December, entering summary judgement for Rogers. Judge David Weinzweig stated in the opinion that reasonable listeners to the radio ad wouldn’t confuse this “unmistakable political flamethrower” in a high-profile congressional race with “a statement of objective fact, even if laced with factual grains.”
“It reflects a hard punch thrown during a primary brawl, targeting a political opponent and touting a personal narrative, leaving no reasonable listener with the parting impression that the unnamed ‘modeling agency’ has in fact supported or committed sex crimes,” Weinzweig wrote.
The dissenting judge said the decision of whether Rogers defamed Young should have been up to a jury.
“The fact that Rogers’s statements may be technically correct does not insulate her from potential liability for what she insinuated rather than said explicitly,” Judge Kent Cattani wrote in his dissent. “And there is little question that a jury could find Rogers’s juxtaposition of
‘underage girls” and “sex trafficking’ in the same sentence to insinuate that the Young Agency was involved in highly questionable—if not illegal— activities.”
Cattani pointed to Rogers’ own deposition as an example. While Rogers agreed that she “generally like[s] children,” both male and female, she responded, “False” to the question “True or False, Wendy Rogers really likes underage boys?”, saying the phrasing was “seedy-sounding” and had “an undesirable nuance.”
“A jury could likewise conclude that when Rogers broadcast an ad characterizing the Young Agency’s specialty as “underage girls,” she necessarily inserted, to use her own words, an ‘undesirable nuance’ and left the impression that the agency was ‘seedy,’” Cattani wrote.
Arizona law professor Paul Bender said that while the chances of the high court taking a case are always slim, the issue at hand was a “fairly interesting and important” one that he thought had a chance.
“I think a lot of people would ask, ‘It’s a campaign, but they’re defaming people not in the campaign, do they have any special privilege to do that?’” Bender said.
Bender said he felt the case should go to trial for jurors to decide reasonably whether the statements are defamatory and that his instinct was that the high court would order reversal.
“The case doesn’t give people enough protection against being defamed by a political campaign that they are not involved in,” Bender said. “The court of appeals opinion says, ‘Hey, it’s a political campaign so they’re free to say what they want.’ That seems to be wrong.”
During her August 2019 deposition in the case, Rogers admitted she didn’t realize the Model Mayhem lawsuit a local ABC station referenced in its 2013 article she cited had been dismissed a year before she ran the ads.
“If I have an article from a strong news outlet‚ which I would consider ABC 17 to be, then, as I said, I cited it on [the] website and then the voter can make that choice,” Rogers said.
Rogers said the Missouri ABC affiliate was reputable because it is “an affiliate of a major news organization.”
When asked if the Arizona Republic was, generally speaking, a reputable news source, Rogers said, “It’s questionable.”
The Supreme Court hasn’t yet decided whether to take the case.
If it does, Rogers asks that Justice Bill Montgomery recuses himself, as the former Maricopa County Attorney defended Smith during the 2018 campaign.
At a pro-Smith press conference with the Arizona Police Association, Montgomery said that human trafficking was a real issue, and “clarity and a commitment to truth and justice” were needed to safeguard children and hold traffickers accountable.
“Trying desperately to associate Steve with illegal activity is the worst kind, I repeat, the worst kind, of politics and muddies the understanding of the environment in which human trafficking occurs,” Montgomery said in a statement that was read at the event.
Rogers says that while Montgomery was “entirely within his rights as a citizen and elected official” to make those comments, he shouldn’t be involved in how the Court handles the case.
In this Aug. 25, 2014 file photo, Maricopa County Attorney Bill Montgomery speaks during a news conference in Phoenix. Hundreds of immigrants who have been denied bail under a strict Arizona law will now have the opportunity to be released after the U.S. Supreme Court issued a ruling Thursday, Nov. 13, 2014 in the closely watched case. The high court kept intact a lower-court ruling from three weeks ago that struck down the law, which was passed in 2006 amid a series of immigration crackdowns in Arizona over the past decade. Montgomery and Sehriff Joe Arpaio defended the law before the courts.(AP Photo/Ross D. Franklin, File)
The Arizona Supreme Court has assigned a special outside counsel to investigate ethics complaints against newly appointed Justice Bill Montgomery and prosecutor Juan Martinez.
Chief Justice Robert Brutinel said in an administrative order issued September 26 that the Office of Independent Bar Counsel will handle complaints against Montgomery and Martinez because of the “interrelationship” of the charges both men face.
The investigation will be the first of its kind, in that a sitting Supreme Court justice will be investigated over a bar complaint.
Lawyers for Jodi Arias filed a complaint accusing Montgomery of covering up misconduct by Martinez one day before Gov. Doug Ducey appointed the controversial former Maricopa County attorney to the state’s highest court.
The court’s administrative order explains in what instances an independent counsel shall be called, typically because of some type of conflict-of-interest with the State Bar of Arizona, which typically investigates attorney complaints. In this case, it’s because the investigation will be into one of the Supreme Court’s own.
A court spokesperson said this special counsel will operate the same way that the State Bar would conduct an ethics investigation.
“[The independent bar counsel] will decide whether the charges are dismissed or move forward as a complaint to the PDJ’s [Presiding Disciplinary Judge] office,” court spokesman Aaron Nash said. “Takes the state bar out of the process but fulfills the same function.”
The counsel, Meredith Vivona, is an attorney who will handle both the investigation into Montgomery and Martinez. Vivona works for the Commission on Judicial Conduct and conducts investigations against judges who face ethics complaints.
Mark Harrison, former president of the State Bar of Arizona, said Vivona is very competent and will act “more objectively than the Bar.”
He said that Brutinel likely appointed her to conduct this investigation because of the political overtones that come along with the two attorneys out of the Maricopa County Attorney’s Office.
Montgomery, who has explicitly stated he has no intentions of making any “media comments,” told the ArizonaCapitol Times through a court spokesman that he is going to let the investigation play out.
“The process in rule and procedure will follow its course,” the newest Supreme Court justice said.
But in an earlier statement before he was tapped by Ducey, Montgomery called the complaint against him “political.’’
The complaint filed earlier this month by attorney Karen Clark contends that Montgomery, as Maricopa County attorney, unethically covered up misconduct by Juan Martinez, who was his lead prosecutor, regarding Martinez’s activities in the murder trial of Jodi Arias.
Arias was sentenced to life behind bars after what had been a particularly high publicity and often lurid trial in which she was found guilty of the 2008 murder of sometime boyfriend Travis Alexander. He was shot in the head, had his throat slit, stabbed 27 times and left in the shower.
Her conviction is currently on appeal.
What led to this complaint against Montgomery was conduct by Martinez, both during the trial and elsewhere.
Clark charges that it was Montgomery’s legal obligation to supervise Martinez. She said he engaged in unethical conduct by blocking the release of records, including complaints by employees who claim they had been harassed by Martinez, records she said would have informed the public about his chief prosecutor’s actions.
There’s also the allegation that Montgomery authorized Martinez to write a book about the Arias trial before it ended, and do it during business hours when he was on the county payroll. And she said Montgomery gave access to case information to outsiders, including someone from the “Dr. Drew Show” on HLN.
Clark has filed a separate ethics complaint against Martinez.
Clark’s complaint was filed as Montgomery was on the short list for Ducey to fill the vacancy on the Supreme Court created by the resignation of Scott Bales.
“Political agendas and special interests should not be allowed to have a place when it comes to the ethical responsibilities of a prosecutor,’’ Montgomery said in a written statement at the time. “I await a full and timely review of these inaccurate claims that have been previously reviewed and found to be without merit.’’
Ducey subsequently picked Montgomery on September 4 for the court, brushing aside the complaint and saying he found its timing “pretty suspicious.’’
Montgomery’s ethics investigation makes it two consecutively elected Maricopa County attorneys who have had charges brought upon them elevated to an outside counsel.
Andrew Thomas, who held the post from 2004 to 2010, was eventually disbarred – along with his chief deputy, Lisa Aubuchon – for abusing prosecutorial powers while trying to prosecute Maricopa County Board of Supervisors (and others) at the time.
If Montgomery’s investigation warrants the worst possible outcome for him – a disbarment – he could eventually apply for reinstatement, which would go through the Arizona Supreme Court for approval.
Harrison notes that this investigation will differ in nature from Thomas since Vivona’s position as an independent bar counsel did not exist in 2012 when Thomas’ law license was revoked.
Instead, an outside counsel from Colorado was hired so Thomas could not argue the State Bar was being biased against him, Harrison said.
Vivona was not immediately available for comment. But Robert Van Wyck, an attorney working opposite her in a case that’s going through an appeal, gave her high praise.
“I can tell you she’s very bright and capable and I think she is balanced,” Van Wyck said. “I would say that under any circumstances.”
This news comes only one day after Martinez was reassigned to a new role within the Maricopa County Attorney’s Office. The acting county attorney, Rachel Mitchell, pulled Martinez off the capital litigation bureau and assigned him to the auto theft division.
Mitchell is one of eight candidates hoping to be appointed the next top prosecutor in the country’s fourth largest county. That appointment is expected to be announced in early-October.
Howard Fischer of Capitol MediaServices contributed to this report.
Editor’s note: This story has been revised to include additional information from Bill Montgormery, Karen Clark, Robert Van Wyck, Mark Harrison and pertinent background on the allegations against Montgomery.
The Maricopa County Board of Supervisors set the process in motion today to replace Bill Montgomery as Maricopa County Attorney by naming its seven-member citizens committee to vet the applicants hoping to be appointed.
The Board met at first on September 9 to lay out the groundwork, but on Wednesday started making headway with the hopes of naming Montgomery’s temporary successor October 1.
Those interested in applying for the appointment must submit applications by Sept. 18 and the committee will have roughly two weeks to send names to the Board, which can appoint whomever it wants at its own discretion.
The committee includes a couple prominent Republicans like Corporation Commissioner Boyd Dunn and Maricopa GOP Chair Rae Chornenky, and financial backers of Ducey,. Maria Chavira and Judge Chris Skelly, who was named chair of the committee.
Also on the committee is Benjamin Taylor, a criminal defense attorney, Carmen Heredia De la Torre, and Paula Banahan.
There has been a who’s who of Republican attorneys interested in the interim appointment, but only a handful has admitted they are applying.
Acting-County Attorney, Rachel Mitchell, told the Arizona Republic she intends to apply, and former lawmaker, John Kaites, told Yellow Sheet Report he would apply and intends to run in 2020 if he gets picked. Chris DeRose, who was appointed Clerk of the Superior Court of Maricopa County last year before losing in the Republican primary, also told Yellow Sheet he is applying, and he plans to run in 2020.
“I opened up a campaign committee to run for county attorney in 2020,” he said.
Correction: A previous version of this story erroneously reported that Chris DeRose was appointed as interim Clerk of the Superior Court of Maricopa County. DeRose was appointed to the position and not just in an interim basis.
The fate of a tax on the rich to help fund education could come down to whether the Arizona Supreme Court believes the money raised will provide “grants” to schools.
During a hour-long argument Tuesday, Andy Gaona, representing the organization that crafted Proposition 208, told the justices that the dollars the new tax would raise are earmarked for special purposes. These range from teacher salaries to funding career and technical education programs.
That, he said, makes it different from the basic aid given to schools each year by the state and any dollars they raise locally, all of which districts are free to allocate as they wish.
What makes that crucial is that the Arizona Constitution puts a cap on how much can be spent on education each year. And even Gaona admits that the $800 million or more that the tax will raise is likely to exceed that cap.
But if the new dollars are considered grants, as he contends, those are specifically exempt from the limit. And that, he told the court, makes the levy legal.
With some of the justices questioning that claim, Gaona had two fall-back positions.
First, he pointed out that the constitution allows lawmakers every year, on a two-thirds vote, to let schools exceed that cap. And Gaona said the court should not void the voter-approved measure before giving legislators a chance to have that vote and honor the will of the people.
And if the court wouldn’t buy that argument, he said that about a third of the money that would be raised with the levy still could be spent without bumping into that cap. So he told the justices they should leave the levy in place.
All that drew a skeptical response from Justice Bill Montgomery who pointed out the measure was promoted based on a promise that there would be all these additional dollars flowing into education.
“Weren’t voters then told something that can’t happen? he asked.
And Justice Clint Bolick pointed out that the full tax would still be collected, “regardless of how much of the money can or can’t be spent” if the court accepts Gaona’s argument that the levy should be upheld. That, he suggested, made no sense.
Hanging in the balance is a 3.5% surcharge being placed on the incomes of people whose income is higher than $150,000 a year, or $300,000 for married couples filing jointly.
Voters narrowly approved the measure despite stiff opposition from the business community. Now some of those same interests have combined with Republican legislators who also opposed the initiative to try to have it declared unconstitutional.
One claim by foes is that a voter-approved constitutional provision requiring a two-thirds vote by the legislature for new taxes also applies to taxes sought by voters at the ballot box.
“This is the people acting in their capacity as amenders to the constitution to bind themselves so that bare majorities can’t grow the size of government and impose new taxes,” said Dominic Draye, representing the challengers. That argument was rejected earlier this year by a trial court judge who said voters never intended to tie their own hands but only those of legislators.
The potentially stronger argument for foes goes to that constitutional question of whether the voters, in enacting a law enacting a new tax surcharge, have run afoul of the constitutional spending cap.
“Proposition 208 is a statutory initiative that needed to be a constitutional amendment,” Draye told the justices. And he said proponents can’t simply declare that the measure’s tax hike is exempt from what’s in the Arizona Constitution.
What that leaves, Draye said, is that claim that the new money is a grant or gift to schools and therefore specifically exempt from that spending cap.
“But no court, and no ordinary user of the English language, would think that a dedicated revenue stream with mandatory spending, no qualification, no discretion, no applications, would qualify as a grant, gift, aid or contribution,” he said.
Justice Ann Scott Timmer said even if that is true — a point she is not conceding — there is an escape clause. That is the ability of the legislature, on an annual basis, to override that spending cap to allow the will of the voters to be enacted and the money collected to be spent.
Draye conceded nothing, saying even that exemption provision itself is unconstitutional.
But the issue goes beyond that.
He said the measure was sold to voters based on the premise that the legislature itself was failing to properly fund schools, which is why they needed to enact this new levy to boost the available dollars. Now, Draye said, supporters of the levy are arguing that the measure should be declared constitutional because those very same legislators — the ones that proponents told voters weren’t providing enough cash for education — could, if they wanted, authorize an override.
“That’s not the bargain that was presented to voters,” he said. “All of the ballot materials were oriented toward the ability to spend $827 million right now on education.”
Gaona, however, said the court should not assume that lawmakers, faced with the prospects of all those new dollars coming in, will not honor the will of the voters and approve an override to allow the cash to be spent as laid out in Proposition 208.
He pointed out that the actual constitutional limit won’t be known until May of 2023. And by that time, Gaona said, the makeup of the legislature will be different, not only because of the 2022 election but because the lines for the state’s 30 legislative districts will be redrawn.
If the court leaves the levy intact, that could provide new impetus for a proposal by Sen. J.D. Mesnard, R-Chandler, to help some people escape paying the new levy. His measure would create an entirely new 4.5% tax category for certain small businesses, a category that would not be subject to the 3.5% surcharge because it did not exist when Proposition 208 was approved last year.
An attorney for the city of Tucson asked Arizona Supreme Court Tuesday to slap back yet another effort by state lawmakers to tell charter cities when they have to hold their elections.
Jean-Jacques Cabou said the whole purpose of the Arizona Constitution in allowing cities to adopt charters was to give them control of matters of purely local concern. And in this case, he said, Tucson voters have said they like having their elections in odd-numbered years so that local issues do not get buried under debates about who should be president or governor or any of the statewide ballot issues.
“Let’s be clear: The electors of the city of Tucson have consistently and very recently have said, ‘We want odd-year elections, leave us alone,’ ” he told the justices, with Tucson voters deciding as recently as November 2018 to keep their odd-year elections.
Under questioning from the court, Cabou conceded that there are limits to local power.
“If the city of Tucson, or some other city for example, passed a law that said only property owners could vote in purely municipal elections, there’s no question that the state would have a constitutional imperative to step in and say, ‘No, no, no,’ ” he said. Such a provision would infringe on individual constitutional rights.
J.D. Mesnard
“But the question here is whether the state — and one legislator who doesn’t represent any part of the city of Tucson — can step up and say, ‘We want your elections to be when we say so,’ ” Cabou said, a reference to the fact the measure was pushed through by J.D. Mesnard, a state senator from Chandler.
But Assistant Attorney General Beau Roysden said the members of the Republican-controlled legislature who mandated consolidating elections have a legitimate interest in promoting voter turnout. And he said the 2018 law promotes that concern.
What the justices decide will have implications beyond Tucson. There are 19 communities in the state that have taken advantage of a provision in the Arizona Constitution allow them to adopt charters to govern local matters which, until now, have included things like when to hold elections and terms of office.
And an adverse ruling by the high court could open the door to state lawmakers imposing other restrictions on the power of councils in those charter cities to make their own decisions.
Tuesday’s hearing is the latest bid by lawmakers to exert their will on not just Tucson but charter cities.
It started in 2012 with a law requiring consolidated election dates. But that was struck down by the state Court of Appeals which said that lawmakers had no statewide interest in interceding in what charter cities decide is a local matter.
The 2018 revision sought to get around the earlier ruling with a declaration calling it “a matter of statewide concern” to boost voter turnout. It says cities have to scrap their election dates if turnout at a local-only election was 25% less than the most recent statewide election.
The Tucson turnout in 2019 was 39.3% versus 67% of Tucsonans who had voted in 2018. But the council ignored the law and set the next election for later this year.
But the justices questioned Roysden how any of that is a matter of “statewide concern.”
“Where’s the statewide interest of someone in Lake Havasu of when Tucson holds an election?” asked Justice Bill Montgomery.
Roysden said that statewide interest is “allowing their citizens to effectively vote.” He said that’s the whole purpose of the 2018 law.
Andrew Gould
But Justice Andrew Gould suggested that Roysden was confusing this with the state’s interest in protecting the individual right to vote.
“Our laws certainly say we can’t burden it, we can’t discourage it, we can’t limit it through either expenditures or overly restrictive regulations in terms of access,” he said. “Where do you derive this statewide interest to increase voter participation?”
Roysden was undeterred, saying the legislature, as “the elected representative of the people,” gets to make that decision. Anyway, he said, the constitutional power of the legislature to ensure “the security of elections” trumps the constitutional right of cities to create their own election laws.
Gould wasn’t buying it.
“Security, election integrity, disenfranchising voters is a very different thing from encouraging and increasing voter participation,” he said.
“I don’t agree,” Roysden responded. That assertion got Montgomery’s attention.
“So the state legislature could penalize people that don’t vote,” he asked, making it a crime?
Roysden said that’s different.
“If you have a right to vote, you have a right to refuse to vote,” he said.
Cabou picked up on that point, telling the justices that Roysden is effectively arguing that having more people vote will lead to a better outcome.
And he said there’s another thing wrong with the state’s argument about the inherent constitutional right of the legislature to set policy on local elections.
“The same constitution that created the legislature created charter cities and created this court,” Cabou said, all of which have a role. In this case, he said, the framers gave charter cities certain powers to be “laboratories of democracy to let them pick and choose how they elected their leaders and structure their government.”
“That purpose would be totally vitiated if the state is allowed to impose its will on the electoral plans of the charter cities,” Cabou said.
He also pointed out to the justices that the candidates for municipal offices are listed at the bottom of the ballot. Cabou said while more people may turn out for statewide races, there’s no evidence that the percentage who manage to make their way to the bottom of the ballot is any higher than in a local-only election.
The Arizona Supreme Court won’t allow state and local officials to hide behind federal drug laws to throw roadblocks in the path of those who want to sell marijuana.
Without comment, the justices on Tuesday refused to review, much less overturn, a Court of Appeals ruling rejecting arguments that federal law trumps the 2010 voter-approved Arizona Medical Marijuana Act. The lower court said the fact that marijuana remains a felony under federal law does not preempt the state from deciding to decriminalize it for some.
That same ruling also specifically rebuffed contentions that having county officials issue the zoning permits required for dispensaries would mean they were illegally aiding and abetting in the violation of federal law.
In reaching that conclusion, the Court of Appeals pointed out that nothing in Arizona law — or in their ruling — protects dispensary operators or even medical marijuana users from being pursued and prosecuted by federal authorities under federal law.
But attorney Steven White who represented the dispensary that argued the case, said that, for all intents and purposes, that can’t happen — at least not now.
He pointed out that a provision in the budget, first inserted in 2015, precludes the U.S. Department of Justice from using any of its funds to prosecute providers of medical marijuana if they are complying with state laws. That provision was just renewed.
That extension, however, runs only through Dec. 8, meaning Congress will need to vote again if they want to keep Attorney General Jeff Sessions and his staffers in check.
Bill Montgomery
The decision by the Supreme Court drew a slap from Maricopa County Attorney Bill Montgomery who had sought to use the federal law to not only block new dispensaries but effectively void the decision by voters to legalize the drug for medical use.
“It represents the latest failure of every level of the judicial branch in Arizona, from the trial court to the Court of Appeals to the highest state court of review, to fulfill their respective oaths of office,” he told Capitol Media Services.
The 2010 law allows those with a doctor’s recommendation and a state-issued ID card to obtain up to 2 1/2 ounces of marijuana every two weeks. The law also set up a network of state-regulated privately run dispensaries to sell the drug.
Before issuing a permit for a dispensary, though, state health officials need certification from the local government that the site is properly zoned. White Mountain Health, seeking to locate in Sun City, which is unincorporated, sought the necessary certification from the county.
Montgomery, however, instructed county officials not to respond. He argued that doing so would make them guilty of violating federal laws which prohibit not only the possession and sale of marijuana but doing anything to facilitate either.
Most significant, he contended that anything the state enacts cannot preempt federal law. Montgomery said the Supremacy Clause of the U.S. Constitution makes federal laws supreme and says “the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
But Judge Donn Kessler, writing for the appellate court last year, said nothing in the federal Controlled Substances Act actually prohibits states from having their own drug laws.
Anyway, the judge said, the fact that Arizona has chosen to legalize the possession and sale of marijuana simply immunizes those involved from being prosecuted under Arizona law. He said there is no conflict with federal law because nothing that Arizona does precludes the federal government, if it wants, from enforcing its own laws.
“The Arizona Medical Marijuana Act does not otherwise purport to shield anyone or any act from federal prosecution,” Kessler wrote.
Nor was Kessler persuaded by that claim that county officials would be “aiding and abetting” those violating federal drug laws. He said county officials were not promoting the sale of marijuana but instead dealing with a simple zoning matter.
And Kessler said that budget provision limiting the Department of Justice from prosecuting people in compliance with their own state’s medical marijuana laws undermines Montgomery’s contention that state or county officials could find themselves prosecuted under federal law.
None of that convinced Montgomery that Arizona voters were ever free in the first place to legalize medical marijuana, saying that trial court acknowledged the conflict between federal law and what voters enacted.
“Accordingly, the Arizona Medical Marijuana Act should have been held unconstitutional without regard for the method in which it passed into law,” he said. “Unfortunately, the court’s abdication of its duty leaves Maricopa County residents, who have consistently voted against legalizing any access to marijuana whether medicinal or recreational, at the mercy of the policy choices of the federal government.”
But while it’s true that voters in Maricopa County — and, in fact, in 12 others — opposed the 2010 initiative legalizing marijuana for medical use, there was strong enough support in Pima and Coconino counties to have the measure approved on a statewide basis.
In this Aug. 25, 2014 file photo, Maricopa County Attorney Bill Montgomery speaks during a news conference in Phoenix. (AP Photo/Ross D. Franklin, File)
Last week, the Capitol was abuzz with everything from talk of criminal justice reform to how to fund Arizona’s public education system – and that’s just the beginning.
Improving Arizona criminal justice system has required stakeholders from all sides to come together in an effort to find common ground, but that process is far from over. Advocates point to county prosecutors as the greatest obstacle still standing in the way.
And even as legislators play an important role in that saga, public school teachers and their supporters continue to demand action for the state’s schools. Proposition 301 was extended for two decades, and the state Supreme Court cleared the way for voters to decide the fate of ESA expansion. Still, public school advocates aren’t celebrating just yet – they worry the Legislature will tinker with those measures.
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Music in this episode included “Little Idea,” “Creative Minds” and “Energy” by Bensound.
Affordable housing advocates scored a win this legislative session after lawmakers voted to reverse a decade-long trend of capping the state Housing Trust Fund’s budget.
Now, the people who fought for the funding increase will have to figure out how to best stretch the new dollars and prepare their case for even more.
And the state Department of Health Services has been accused of misspending money from the Medical Marijuana Fund among other unflattering findings from state auditors.
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Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.
A lawsuit over high college tuition has morphed into a debate on the role of the attorney general.
Lawmakers who’ve struggled to pass sweeping criminal justice reform measures are cautiously optimistic that next year will be the year it finally works because Bill Montgomery is out of the county attorney’s office.
And a week after making his most controversial court appointment, Governor Doug Ducey won bipartisan praise for his latest pick.
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Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.
It’s unfortunate that the Prosecutors did not keep their word and stay neutral on this bill. After all, the changes we made were at their request. I suppose it’s always true that no one likes to give up power. https://t.co/gwGVp9RMMF
How exactly do you work with someone you believe has betrayed you?
That’s a question some lawmakers are asking themselves about the state’s county prosecutors after what some saw as an 11th hour reversal on criminal justice reform measures.
An attorney plagiarized a significant portion of her application to the Court of Appeals, then changed it after our reporter called shenanigans.
And session may be over, but your state lawmakers are still making waves.
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Music in this episode included “Creative Minds” and “Energy” by Bensound.
Arizona Power Supply (APS) chairman Don Brandt testifies before the Arizona Corporation Commission, Wednesday, Sept. 4, 2019, in Phoenix. (AP Photo/Matt York)
Maricopa County “top cop” Bill Montgomery’s got a new job, and while he’s trying on black robes half the lawyers in Phoenix are gunning for his old one.
Don Brandt spent a day in a metaphorical hot seat answering questions about the literal hot houses APS created by shutting off customers’ power.
And a month after a former Democratic Senate employee won a lawsuit over poor pay, the Senate handed out five-figure raises to partisan staff.
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Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.
The Legislature is contemplating a bill that would diminish the death penalty law for the first time since 1973. And you might be surprised to hear who’s pushing it.
Other bills have not been so lucky as many have been left to die silently without ever even receiving a hearing.
And in case you missed it, Arizona’s water future was laid on the line early last week. What could that mean for ongoing negotiations?
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Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.
Former Attorney General Tom Horne, who was hounded by allegations of illegal coordination throughout his unsuccessful bid for re-election in 2014 and faced a $400,000 fine, has been absolved of wrongdoing by Cochise County Attorney Brian McIntyre.
McIntyre concluded that while Horne and Kathleen Winn, who ran an independent expenditure committee that aided his campaign for attorney general, communicated at a time “which would cause any outside observer to cry foul,” the record did not establish that the act is illegal.
Brian McIntyre
“Both sides to this dispute present equally plausible explanations as to what did or did not occur during that communication,” McIntyre wrote. “The party bearing the burden, therefore, has failed to meet it.”
The Attorney General’s Office had assigned the case to McIntyre after the Arizona Supreme Court ruled that Yavapai County Attorney Sheila Polk’s handling of the case violated Horne’s due process rights. McIntyre’s conclusions are the final word on the case.
That decision overturned two lower court rulings and handed the former attorney general a major victory in the scandal that ultimately contributed to his election defeat.
The justices ruled that due process does not permit Polk to levy the fine against Horne and Winn, participate in prosecuting them, and serve as the final decision-maker in rejecting an administrative law judge’s recommendation that the case be dismissed, which the Supreme Court noted would “receive only deferential judicial review.”
In 2014, Administrative Law Judge Tammy Eigenheer recommended to drop the case against Horne and Winn.
McIntyre said Eigenheer found Horne and Winn’s testimony to be credible, and he could find no substantial evidence to overturn those findings.
Kathleen Winn
A focal point of the case against Horne and Winn was a series of emails she had sent to political consultant Brian Murray on Oct. 20, 2010, in which she told the consultant that “we” didn’t like how many times Business Leaders for Arizona, the independent expenditure group she ran, had mentioned Democrat Felicia Rotellini, Horne’s 2010 general election opponent, in its ad. She had also commented that she has “several masters” to answer to and had two “strong personalities” debating the ad’s content. The Yavapai County Attorney’s Office concluded that she must have been referring to Horne.
But McIntyre said the evidence does not reveal any actual communication between Horne and Winn, and the record supports the conclusion that those “strong personalities” did not include Horne.
McIntyre added that the investigation was “not a search for the truth, but rather, only intended to shore up conclusions already drawn.”
Horne’s attorneys, Dennis Wilenchik and Jack Wilenchik, said the “oppressive cloud” hanging over their client has been cleared.
“This case was brought by an overzealous prosecutor who chose to act as ‘judge, jury and executioner’ and to overrule a judge. Justice has finally prevailed for the former Attorney General,” they added.
Late in the 2010 race, Business Leaders for Arizona had run roughly $500,000 worth of attack ads against Rotellini. Investigators from the Maricopa County and later the Yavapai County attorney’s offices concluded that Horne and Winn had illegally coordinated in creating the campaign commercials. Polk ultimately fined the pair $400,000.
Maricopa County Attorney Bill Montgomery’s October 2012 announcement of the coordination allegations was a political bombshell that hounded Horne for the remainder of his term as attorney general. Many believe that this charge, along with allegations by a former staffer in 2014 that Horne had been running his re-election campaign out of the Attorney General’s Office, helped lead to Horne’s defeat in the Republican primary by Mark Brnovich, who went on to win the general election race.
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
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
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:
Myth: Arizona 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.
Myth: 95 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.
In training materials recently obtained by the ACLU of Arizona, the Maricopa County Attorney’s Office (MCAO) refers to the people it prosecutes using the slur “crazy” and paints people with psychiatric disabilities as liars and obstacles to winning a conviction – not as human beings worthy of respect.
One training presentation explains Rule 11, a court-ordered process to determine if an accused person is competent to understand court proceedings and the charges against them. It begins with a slide reading “Rule 11 OR Exactly how crazy do I need to act to get out of here?”
Another training on mental health in homicide cases is titled: “Mental Health: Look at me, I’m CRAZY!”
Jared Keenan
These documents are telling: in the Maricopa County Attorney’s Office it is apparently acceptable to train prosecutors to dehumanize some of the most vulnerable people they prosecute.
When new prosecutors are told to immediately assume the people they’re prosecuting are lying or exaggerating, it surely becomes much easier to throw them in prison, or to not care that they’re sitting in jail without access to the mental health treatment they need.
It’s particularly concerning given the statistics regarding people who are incarcerated in jails and prisons. The presenters are dehumanizing a large proportion of the people they prosecute.
According to statistics from the Arizona Department of Corrections, about 29 percent of people currently in prison require ongoing mental health services. Nationally, about 56 percent of people in state prisons currently have a mental health disability.
What is equally troubling is how difficult it was for the ACLU of Arizona to obtain these training materials.
In May, we sued former Maricopa County Attorney Bill Montgomery after he ignored our public records request for over seven months.
We asked for basic information about how the office functions: policies, procedures, staff rosters, budget figures, and data on how the office resolves criminal cases.
Once the lawsuit was filed, MCAO slowly started releasing some of these public records. But MCAO, was still withholding some critical information, including these training materials.
It wasn’t until after Gov. Doug Ducey elevated Bill Montgomery to the Arizona Supreme Court that the Office released the insensitive training materials.
It shouldn’t take a lawsuit for the public to find out how they will be treated by their elected county attorney and the prosecutors who answer to them. But across the country, prosecutor’s offices are notorious for hiding public information, and the Maricopa County Attorney’s Office is no different.
Allister Adel was recently appointed to replace Montgomery as the head of MCAO.. In one of her first statements to the press, Adel said she is a “big believer in transparency.” Yet her office continues to withhold many general office policies that guide how prosecutors do their job, thwarting the right of Arizonans to monitor the performance of the government officials in her office. Rather than continuing Montgomery’s policy of hiding what MCAO does, Adel should stand by her own advice: “If we are doing our job right, we have nothing to hide.”
In 2020, Adel will run for election along with several other candidates in what is already turning out to be a contentious race. We look forward to sitting down with Adel, and all county attorney candidates, to find out whether they will condemn the use of offensive language in training materials and forcefully reject the mindset such language reveals.
We also want to know if the county attorney candidates will commit to making the office more transparent by promptly responding to public records requests, posting policies, procedures, and sentencing data online in an easily accessible database, and implementing a plan to meaningfully communicate with the public, and more specifically, with those communities most impacted by incarceration, like those with mental health disabilities. Ultimately, it will be up to the voters in 2020 to hold their elected county attorneys accountable.
Jared Keenan is the criminal justice staff attorney with the American Civil Liberties Union of Arizona. He can be reached at [email protected] or on twitter at @realJaredKeenan.
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