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

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

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

Bill Montgomery
Bill Montgomery

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

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

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

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

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

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

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

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

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

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

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

Controversial researcher hired to update prison population study

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

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

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

John Lott
John Lott

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

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

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

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

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

The Academic

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

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

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

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

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

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

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

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

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

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

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

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

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

The Report

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

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

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

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

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

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

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

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

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

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

Amy Kalman
Amy Kalman

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

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

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

‘Work Really Hard’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Polarizing Figure

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

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

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

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

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

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

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

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

High Stakes

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

Bill Montgomery
Bill Montgomery

Montgomery said that’s not the case.

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

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

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

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

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

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

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

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

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

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

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

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