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Issue: Second Chances

Blackman prisoner release bill fails – again

This June 24, 2021, file photo shows, Rep. Walter Blackman, R-Snowflake, right, and Rep. Diego Espinoza, D-Tolleson, talking during a vote on the Arizona budget at the Arizona Capitol. The Arizona House voted June 28 to allow some people convicted of certain crimes to earn time off their sentences for participating in work training, substance-abuse treatment or other prison programs, as Blackman worked for years on the legislation, but the Senate never put the measure to a vote.(AP Photo/Ross D. Franklin, File)
This June 24, 2021, file photo shows, Rep. Walter Blackman, R-Snowflake, right, and Rep. Diego Espinoza, D-Tolleson, talking during a vote on the Arizona budget at the Arizona Capitol. The Arizona House voted June 28 to allow some people convicted of certain crimes to earn time off their sentences for participating in work training, substance-abuse treatment or other prison programs, as Blackman worked for years on the legislation, but the Senate never put the measure to a vote.(AP Photo/Ross D. Franklin, File)

There were plenty of issues taken up during the 171-day legislative session that ended June 30 that everyone knew would be contentious, even in January. However, leaders from both parties did see one major area of potential bipartisan cooperation – revamping the criminal code. 

“Criminal justice has always been a hot thing,” House Speaker Rusty Bowers, R-Mesa, said. “I shouldn’t say always, it has been growing over time among many of our members. … It seems to resonate in our district meetings and elsewhere. It’s not just a one-party issue. We need to look at it that way.” 

House Minority Leader Reginald Bolding, D-Laveen, agreed.  

And it did work out this way – kind of. The House Criminal Justice Reform Committee created this year, headed by Rep. Walt Blackman, R-Snowflake, perhaps the Legislature’s most vocal Republican advocate on the issue, took up a plethora of bills, many of which passed the House. Some became law. But others either stalled in that committee or passed the House only to die in the Senate. 

“We did do some good things this year,” said House Majority Leader Ben Toma, R-Peoria. “Blackman’s earned release credits (bill) – I truthfully kind of had hoped we would find a way to get that across the finish line as well, or some version of that.” 

The session ended on something of a high note and a low note for advocates. Gov. Doug Ducey did sign a long-sought measure to improve the treatment of pregnant inmates and ensure female prisoners are provided with enough feminine hygiene products.  

Ducey also signed SB1294 July 9. The bill allows people to petition for certain criminal records to be sealed and their rights restored – a “groundbreaking” move, according to criminal defense attorney Steven Scharboneau Jr., who has advocated for Arizona to move toward more options for expungement. Arizona did not allow any criminal records to be expunged before Proposition 207, which legalized recreational-use marijuana and took effect this year, instead offering a more symbolic “set-aside” option. The voter-approved initiative allows people to petition for expungement of certain marijuana-related offenses.  

The broader record-sealing legislation takes effect January 2023. 

“The idea that people deserve a second chance is becoming more and more universally accepted as true,” Scharboneau said. 

However, earned release credit expansion, which passed the House 50-8 two days before sine die, never got a Senate vote. Senate President Karen Fann, R-Prescott, said in a tweet the bill failed because a majority of Republicans there opposed it. 

“Defunding the police, lack of probation officers and the list of horrible offenses that allowed criminals back on the street was a bridge too far,” Fann wrote. 

Blackman said the claims in Fann’s tweet weren’t true, and that the bill not only had nothing to do with “defunding the police” but, by reducing the prison population, would have saved an estimated $680 million over 10 years that could have gone back into funding probation and job placement and drug training programs.  

“Every statement she made was inaccurate, because she got bad information, or she knew it was inaccurate and she said it anyway,” he said.  

Blackman said he reached out to Fann, who didn’t return a call from the Arizona Capitol Times, to discuss why the bill didn’t move forward, but she never got back to him – after a week. He asked her in a Facebook post to explain to him how the bill would have defunded the police. In an interview with the Capitol Times, Blackman criticized both her and Ducey, who he said has never met with him to discuss the issue over the three-and-a-half years he has been working on it. Blackman said Bowers is the only person in top leadership who has met with him about it.  

“He is the only one out of the three who has been truly supportive of criminal justice reform, not just through words but through action also,” Blackman said. 

The bill would have let certain drug offenders who completed the bill’s programming requirements earn five days of earned release credits for every six days served, and others would have been able to earn two days for every six days served. A long list of violent and more serious offenders would have been excluded from the opportunity to get earned release credits. 

Currently, certain drug offenders are eligible for earned release credits but others generally need to serve at least 85% of their sentences, due to a truth-in-sentencing law passed in 1993. An initial version of earned release credit expansion passed the House 47-11 in February, but it stalled in the Senate. In late March, Sen. J.D. Mesnard, R-Chandler, revived it as a strike-everything amendment to another bill and subsequently engaged in months of negotiations with law enforcement and other stakeholders to try to craft something that addressed their concerns. 

The year was a mixed bag for Middle Ground Prison Reform Director Donna Leone Hamm. She applauded the passage of a civil asset forfeiture law that requires a conviction before someone’s property can be seized. The end of sentencing people for prior convictions when they are convicted of multiple charges stemming from a singular incident was also a win.  

“That is going to make a major difference in sentencing and in plea negotiations, so that will have an impact,” Hamm said. 

Hamm was surprised that the Legislature didn’t pass the earned released credits expansion, especially after seeing the language from the Second Chances, Rehabilitation and Public Safety Act, an initiative that missed the 2020 ballot after failing to clear signature review. 

“I thought that legislators would be anxious to try and pass a bill on their own rather than allowing the general public to decide what the criminal code would be because the citizens’ initiative proposed a much more liberal package of reforms,” Hamm said. “If that comes up again in 2024 and they still haven’t done anything in the Legislature, then I think they’re going to be very, very sorry.” 

Rebecca Fealk, policy program coordinator for the American Friends Service Committee, said it was confusing and concerning that earned release credits measure didn’t move at the end of session. 

“I do wonder if perhaps this more incremental approach is part of the reason that some of these things are stalling,” she said. “Arizona is so far behind that we really need to play catch up.” 

Fealk did say she was heartened by the passage of a bill to decriminalize fentanyl testing strips, sponsored by Sen. Christine Marsh, D-Paradise Valley. Marsh ran the bill in honor of her son, who died of an overdose last year. 

“Just being able to have a harm reduction approach to people who are struggling with substance use disorder is so important to actually addressing the root causes and issues,” Fealk said. 

Another positive, Fealk said, was HB2162, which will let some Class 6 felons have their offenses recorded as misdemeanors either upon sentencing or if they successfully completed probation. 

Pima County Attorney challenges criminal justice ballot measure in court

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

Barbara LaWall
Barbara LaWall

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

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

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

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

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

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

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

Desai denied there’s anything misleading about the description.

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

Roopali Desai
Roopali Desai

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

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

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

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

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

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

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

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

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

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

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

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

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

Other than LaWall, who is retiring at the end of the year, other plaintiffs are:

– Heather Grossman, a survivor of domestic violence who was left paralyzed when she was shot by someone hired by her former husband;

– Beckie Miller, whose son was robbed and murdered in 1991, prior to the “truth in sentencing” provisions; the lawsuit said none of the three perpetrators served more than three years in prison;

– John Gillis, a former police officer, whose 23-year-old daughter was murdered in 1979 by a gang member who killed her as part of his initiation.

Proposed changes to criminal punishments may be headed to ballot

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A measure that may be headed for the ballot asks Arizona voters if they’re ready to overturn some mandatory sentencing laws adopted decades ago.

The initiative, if approved in November, would carve an exception into laws that limit the discretion that judges have in deciding how long someone should be imprisoned.

Those minimum and maximum ranges would remain in state law.

But it would empower judges to deviate “in the interest of justice” in what are defined as “non-dangerous” offenses, even to the point of suspending sentences and placing people on probation. And they could consider input from victims, family members and experts, and other factors related to the circumstances of the case.

The same measure, dubbed the Second Chances, Rehabilitation and Public Safety Act,” also would allow inmates sentenced for non-dangerous offenses to be released after serving 50 percent of their time. Now the minimum is 85 percent.

And it would end the practice of some prosecutors of “stacking” charges in a way that allows someone to be sentenced as a repeat offender even if they have no prior convictions.

Backers said they submitted 397,291 signatures; 237,645 need to be found valid to qualify for the ballot.

The measure is drawing fire from Pima County Attorney Barbara LaWall, a Democrat.

Barbara LaWall
Barbara LaWall

“Changing the sentencing code by utilizing an initiative such as this provides absolutely no opportunity for any informed hearings, discussion, expert testimony from any affected parties and — the absolutely worst part — is that the victims have no voice whatsoever,” she said. And she said there are specific flaws.

The state’s current policies on incarceration date back to 1978 when lawmakers voted to impose mandatory prison terms for certain crimes.

And in 1993 they approved the “truth in sentencing” law, which says criminals must serve at least 85 percent of their term before being eligible for release. That came after complaints that even when judges were imposing longer terms that inmates were getting out after serving only a fraction.

Attorney Roopali Desai who is involved with the initiative, said the proposed changes are not all that radical.

“What we’re doing is we’re returning to judges the discretion that we all believe they ought to have,” she said.

“That’s why they’re judges,” Desai said. “That’s why we have them on the court in the first place.”

Anyway, she said, this is not a radical change.

Desai said existing law already provides for a range of sentences in given circumstances.

For example, theft of property worth between $4,000 and $35,000 is a Class 3 felony.

Under current law, a judge can impose a prison term of just two years if there are mitigating circumstances. The presumptive prison term is three and a half years, with a maximum term of seven years.

What this proposal would do, Desai said, is give judges more options when the facts “don’t fit the circumstances.”

But LaWall warned there are drawbacks to all that.

“The provisions in this initiative will result in extreme disproportionality in sentencing, identical to what existed prior to 1978,” she said. And that, LaWall said, will allow for the bias of judges to show.

“There are very liberal judges who will now have discretion if this passes to sentence repeat offenders to probation instead of prison,” she said. “On the other hand, other judges will sentence these same offenders to many more years than what the sentencing ranges currently provide.”

And she said there’s something else: the possibility of race becoming a factor.

LaWall said that prior to the sentencing guidelines, educated white offenders routinely were sentenced to probation while individuals of color charged with the same offense often were sent to prison.

“These disparities may not have been intentional,” she said. “But I saw them occur on a regular basis nevertheless.”

Roopali Desai
Roopali Desai

The “stacking” provision in the initiative relates to the fact that prosecutors can seek longer sentences when someone is a repeat offender. But this seeks to change the definition of that.

For example, take the case of an individual who committed three burglaries on three successive days. Current law allows prosecutors to claim the first two as prior offenses to argue for a longer prison term as a repeat offender. This measure would allow prosecutors asking a judge to cite someone as a repeat offender only for prior burglaries for which the person already had been tried and convicted.

LaWall said what that also means is that there is no increased mandatory sentence for people who commit multiple crimes “before the police catch up with them.” In fact, she said, there’s no enhanced penalty for those people who continue to commit crimes while out on bail or awaiting sentencing.

“A person who burglarizes 30 homes in a month is still eligible for probation so long as they keep committing these crimes before they are sentenced,” she said.

State lawmakers actually had voted for that change in 2019 only to have it vetoed by Gov. Doug Ducey, who said he was concerned about “the unintended consequences that may arise from this legislation and the effect these changes would have on victims.”

The other key provision would allow inmates to be released after serving half their times instead of 85 percent. Desai said all the conditions for earning early release credits in the current programs would remain, including good behavior, participation in educational, drug treatment and rehabilitative programs.

There is some precedent for the change the initiative is seeking. Last year, lawmakers approved a measure permitting inmates who have been convicted solely of drug offense to seek release after serving only 70 percent of their time.

Stacy Pearson: A PR pro with no BS

Stacy Pearson
Stacy Pearson

Stacy Pearson used to ask the questions and now she prepares how to answer them.

The senior vice president at Strategies 360 was a reporter before eventually jumping to “the dark side,” where she now works to get initiatives on the ballot. She used to cover education and said it’s depressing how little has changed since then.

She is currently running the campaigns for Smart and Safe Arizona, Invest in Education and Second Chances, Rehabilitation and Public Safety, but she still manages to find time to watch her daughter play beach volleyball and participate in a “mom’s who write class,” which she says is therapeutic.

Originally from Chicago, she has a White Sox hat hanging up in the corner of her downtown Phoenix office and loves to talk about Chicago food, just as long as that food is not deep dish pizza.

Pearson sat down with Arizona Capitol Times to discuss reporting and being married to a police officer while trying to get recreational marijuana legalized.

Are you from Chicago?

Originally yeah, but I’ve been here since I was three.

Are you a deep dish fan?

Thin crust. Definitely thin crust … we are a thin crust family. It’s like a religion.

Outside of the White Sox, are there aspects of Chicago you miss?

The ethnic food. … Any possible type of cuisine you can find in Chicago, and it’s really good.

You used to be a reporter.

I was, yes. A journalism grad. I went to ASU. Then I worked at the West Valley View, which was a really good experience. You’d be amazed at how angry people get when their free newspaper wasn’t dropped off at the time. It was really, really interesting

What made you want to jump to the dark side? 

Hilariously, this totally dates me, but I was doing a story on kids that had gotten tangled up with Napster and I was sitting across from this crusty central casting curmudgeon journalist who had retired from the Philadelphia Inquirer named Bruce, and he’s staring … and, of course, I’m late past deadline, but he’s glaring at me. I’m finally like, “Bruce, what?” And he was like “the definition of irony. You’re about to give away a story for free about the music industry no longer giving away music for free.” And there’s this minute where I’m like “Oh, no, I’m wasting my life. What am I doing?” So then shortly thereafter, I got a job at the State Tourism Office, which was really fun.

Did you report on a specific beat?

Education and military affairs, which ironically, I have no military experience. And it was a time when F16s were falling out of the sky. There were like nine crashes in a year or two years, something like that. So I think the Air Force Base got very lucky in how little I knew, or the questions I thought to ask about what was happening out there.

So as someone who once covered education and now deals with it in your current job via initiatives or what have you, what have you noticed has improved since you were reporting on it? Or has nothing improved since then?

So I think that’s probably the most depressing part is it is really the same issues that I was covering which at that time were failing infrastructure at schools, it was the Students FIRST time when they were looking at ways to make funding more equitable. It’s all still the same and we still have infrastructure needs. We still have class sizes that are too large. We have recruitment and retention issues in the profession. A lot of this is exactly what was being discussed then. I think the difference though, the charter schools were just in their infancy. So we’ve certainly cycled through good ones and great ones and ones that didn’t make it. So it’s been interesting to watch that unfold.

Since you jumped into the PR world, what are some of the biggest differences you can appreciate more now being on that side of the aisle?

I think one of the most interesting things is you always knew as a reporter, people were organizing a way not to call you back. I didn’t realize it was that coordinated. … I mean, there are meetings about calls, about questions, and trying to get clients and campaigns as prepared as possible for questions reporters have. There’s a lot of work going on in the back end.

What is it like going from asking those questions to preparing how to answer them? 

It totally depends on which journalist, but there are a handful of journalists in the market that when they call you know you’re in trouble Like Robert Anglen, for example at The Arizona Republic. If Robert’s calling and asking questions about anything, he already has the answers. … It really depends on the reporter and what the story is, but I think we’ve got a pretty incredible amount of talent in the market, in journalism, across the board.

Are there certain reporters who you feel like constantly get things wrong or they’re just out to get you?

We’ve been really lucky. I haven’t had any adversarial relationships with reporters. I mean, I understand the job that they’re trying to do and I think I have the reputation that I don’t BS reporters. If there’s something that I don’t want to talk about, I can say that “Hey, we’re not going to discuss that.” … There’s no point in misleading if we’re all stuck here on this planet together.

You used to work for Jason Rose, who is a bit of a crisis management specialist. What are some of the worst things you’ve heard people say to the media that you would have advised against? 

I think anytime a legislator claims legislative immunity, things are going off the rails. Something very bad has just happened. Legislative immunity is probably the worst one.

Have you ever considered running for office?

No, I never considered running for office. I lost for the freshman class president in 1991 and I really never recovered. I’ll never do that again.

You’re married to a cop. What’s it like working on the push to legalize adult-use marijuana, how does that dynamic work? Do you ever take work home with you?

My husband’s the president of the Mesa Police Association. We’ve got a couple of lines that we have crossed this cycle. Marijuana being one and criminal justice being another. I do take that work home and our daughter is going to be 18 in October so this is going to be the first election she can vote in, which is gonna be really interesting. But yeah, my husband’s been a street crimes sergeant for about 17 years now, so it’s been interesting. He doesn’t spend a whole lot of time dealing with marijuana arrests anymore. I mean, he spends a ton of time with fentanyl and some of the more lethal drugs that everybody sees today.

If there was a movie made about Arizona politics, what would the story be?

I think [former Sheriff Joe] Arpaio’s Weekend at Bernie’s run would be really, really interesting to watch. I’m pretty sure he’s reverse aging so I don’t know what’s happening there, but I think that would be really interesting.