AG says state required to fund schooling only for minor inmates


A new opinion from Attorney General Mark Brnovich is leaving dozens of young adults who are locked up in Pima County jail without the funding to help them complete a high school diploma.

Brnovich acknowledged that state aid is available for school districts for anyone younger than 22. And Pima County School Superintendent Dustin Williams said his office runs a state-recognized school district for anyone younger than 22 who is locked up.

But Brnovich said he reads the law to require the state to provide funds only for those younger than 18.

The only exception, the attorney general said, is when the person in county jail has a disability. In those cases state aid runs through age 21.

Monday’s opinion drew an angry reaction from Williams who said the cutoff of state dollars has left more than four dozen students in his district without education opportunities.

“How in the world are we not educating probably the most neediest kid and start to tackle this school-to-prison pipeline and start to tackle this recidivism that is out of control,” he told Capitol Media Services.

“I would reckon to bet that 100 percent of the taxpayers don’t want these individuals just sitting there doing nothing all day,” Williams said. “I think they would prefer if they were getting an education or finishing up on some school while they’re incarcerated.”

An aide to Brnovich defended the opinion.

“We follow what the law says, not what we want it to be or what we think it should be,” said Ryan Anderson.

At the heart of the battle is a state law which says that all schools shall admit all children who are between the ages of 16 and 21 who reside in the district and who have not graduated from high school.

Williams, as county schools chief, runs an “accommodation” school district for youngsters who are locked up, complete with a principal and teachers. That makes his district eligible for state aid, just like any other district.

He said it’s bad enough that state law pays him just 72 percent of what other districts get, a figure that comes out at about $3,100 per student per year.

“I lose 28 cents on every kid,” Williams said.

Williams said he he worked with Sen. David Bradley, D-Tucson, last year to get the same funding as other districts. That bill cleared the Senate Education Committee but never got any farther.

As it turned out, the state Department of Education, changing its auditing procedures, concluded that he was entitled to no funds at all for those who have turned 18.

The Pima County Attorney’s Office disagreed, issuing its own formal opinion in a bid to get the dollars restored. But Brnovich, by law, gets the last word.

The result, said Williams, is that the program for about 50 youngsters in that age group has gone away.

“Now we’re not getting anything and those individuals are just sitting there,” he said.

But Brnovich, in his opinion, said the legal issue boils down to the wording of state laws: Counties are required to provide education services to incarcerated youths only until they reach age 18, with the exception of those with disabilities.

“Their meaning is clear: State funding is available only for the two categories of prisoners to whom county must offer a jail education program,” he wrote. And Brnovich said the fact that schools are required to admit anyone through age 21 does not mean the state has to provide aid if the school is run as part of a jail.

Williams said that with the state funding gone he is pursing alternatives to help those who are locked up but 18 or older get a chance for a diploma.

One, he said, would be to try to earn a GED high school diploma through online courses offered through Pima Community College. But Williams said that should not be necessary.

“We’re a full-on district school,” he said. “I’ve got principals and teachers and experts, all certified.”

More to the point, Williams said Arizona should be doing more to help ensure that all students have a chance to get a diploma.

“We need to be progressive in this state, and we need to be progressive towards incarcerated individuals, period,” he said.

Williams also said he hopes to convince Gov. Doug Ducey to pursue a change in the law.

“He has said that the direction of the state (that) he wants to focus on incarcerated youths,” Williams said.

Arizona gets high marks for pretrial justice system, but money bond still in use

Arizona found itself at the higher end of nationwide rankings for once after the Pretrial Justice Institute awarded the state high marks for its pretrial system.

According to the first State of Pretrial Justice in America report released November 1, Arizona was one of only eight states in the country to earn a B, a grade that was based on three factors: the state’s rate of pretrial detention, the extent to which counties are employing a validated pretrial assessment tool and the extent to which the state has functionally eliminated the use of money bond, which Arizona has not yet done.

However, the state’s pretrial detention rate sits at 16.7 per 10,000 residents, according to the report, and all 15 counties use a validated risk assessment tool. The point of such a tool, said Cherise Fanno Burdeen, the institute’s CEO, is to guide judicial discretion to avoid a “disparate impact on poor people and people of color.”

New Jersey claimed the only A grade, while the nation as a whole received a “quite dismal D.”

“Arizona is on the right track,” Burdeen said. “As the report says, this takes into account current conditions.  A few years ago, New Jersey would have gotten an F. And here they are in 2017 with an A. So, Arizona could very quickly advance this grade.”

The rest of the country has a long way to go in comparison. Ten states received a C, 13 received a D and 17 fell to the bottom of the pack with an F.

Dave Byers, administrative director for the Arizona Supreme Court, said the grade recognizes the hard work done by the courts over the past few years, particularly efforts by last year’s fair justice task force.

As for the points lost on the elimination of cash bail or lack thereof, Byers said he and other experts have not been able to figure out a way to eliminate money from misdemeanor cases completely.

“I’ve talked to them, and no one can figure this out,” Byers said.

Byers said the state Constitution allows a person who has committed a felony to be detained without the use bail if they are a high risk to the community or flight risk. The Constitution does not extend that to misdemeanor offenders.

For example, someone who has been arrested repetitively for drinking and driving and will not stop gets charged with a misdemeanor case. The judge presiding over that case may easily recognize that individual poses a high risk of getting back in the car and hurting someone, but the judge has no way of holding the person without imposing a high money bail.

On the felony side, money bail has not been entirely eliminated either, Byers said. But judges are now equipped to assess risk.

“It appears that in order to completely eliminate money out of the whole system, you’d have to change the Constitution,” Byers said. “And that won’t be easy because there will be a big debate.”

Until that can be done, the court’s task force has made progress on its original 65 recommendations, not only with regard to bail reform but also fines and fees.

Rep. Eddie Farnsworth (R-Gilbert)
Rep. Eddie Farnsworth (R-Gilbert)

Several bills that came out of the court’s efforts died during the last legislative session when House Judiciary Committee Chairman Eddie Farnsworth, R-Gilbert, refused to hear them.

But Byers said legislation will be brought back for consideration to address matters like judges’ discretion in imposing fines that offenders may not be able to cover.

“We know we’re changing a culture, and that’s a big effort that will go on for years,” he said. “Whenever you go to change a culture, you have to expect resistance and doubt. But I’ve been amazed at how many judges are embracing this. They’ve seen these problems for years, and they’re just happy we’re doing something about it.”

The Criminalization of Politics


American politics have become criminalized. A steady drum beat of words and deeds — from “lock her up” chants, to prosecutions of President Trump’s associates, to Trump pushing for Joe Biden’s indictment — has eroded the bright line between politics and the criminal law.

This is deeply troubling for several reasons.

First, criminalizing politics conflicts with the bedrock principle that the rule of law applies equally to all people. Entangling the passions of politics with the criminal law leads to treating people differently based on their political affiliation — instead of on their guilt or innocence. This is antithetical to even-handed justice.

The examples of this criminalization are endless. Republicans want to lock up Hillary Clinton for her email practices and prosecute Obama administration officials for investigating the Trump campaign. Democrats, meanwhile, want Michael Flynn in prison and Trump indicted in New York the day he leaves office. And so on.

In American politics the messenger matters more than the message, the actor matters more than the act. This is diametrically opposed to the basic premise of the rule of law — that all people must be treated equally and their specific alleged misdeeds are what matter.

William Cooper
William Cooper

Second, criminalizing politics accelerates a disturbing trend toward ever more political polarization. It ramps up the stakes from treating opponents like political rivals to treating them like personal enemies.

True, fierce domestic politics is nothing new. It is woven into the fabric of our democratic system. But ultimately we are one nation in a dangerous world. Our political disputes should not consume a disproportionate amount of our national bandwidth. Nor should they undercut our ability to respond to the many foreign threats we face. If looked at from a global perspective, Americans’ interests overlap far more than they diverge.

Put simply, Americans should focus our political energy on winning elections and setting policy, not sending officials we don’t like to jail.

Finally, criminalizing politics deters talented people from entering the political arena. The United States government already has a personnel problem. We shouldn’t further dissuade quality people from entering government because imperfections and ambiguities in their past might be shoehorned into politically motivated criminal accusations. The downside for winning office should be losing the next election, not getting indicted.

These concerns about the criminalization of politics must be looked at in context. It is true that entering the government should neither absolve someone from past crimes nor serve as a license to commit new ones. And one aspect of even-handed justice is to prosecute not just the weak and anonymous but also the powerful and well known.

Striking the right balance is hard. But there should be a strong presumption in favor of leaving politics – and its inherent passions and prejudices – at the courthouse door. Criminalizing politics doesn’t just poison our government and undermine our justice system. It imperils our nation as a whole.

William Cooper is a California-based attorney.