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.