ARIZONA HOUSE OF REPRESENTATIVES

Forty-ninth Legislature – First Regular Session

HOUSE STUDY COMMITTEE ON SENTENCING

Minutes of Interim Meeting

Tuesday, December 15, 2009

House Hearing Room 5 -- 9:00 a.m.

Chairman Ash called the meeting to order at 9:05 a.m. and attendance was noted by the secretary.

Members Present

Representative Cecil Ash, Chairman

Representative Doris Goodale

Representative Laurin Hendrix

Members Absent

Representative Bill Konopnicki

Representative Kyrsten Sinema

Representative Anna Tovar

Opening Remarks

Chairman Ash introduced the Members and staff in attendance.  He related that the purpose of the Committee is to review and assess Arizona sentencing laws.  Many years ago, he was a Deputy Public Defender in Maricopa County where he saw some of the benefits and problems with the current sentencing structure.  He indicated that the first duty of sentencing is to preserve public safety, but there are other purposes of the sentencing laws, including incapacitation of the offender and rehabilitation so society is protected once offenders are released from custody.

He advised that Kathy Waters will not be speaking.  Representative Sinema is out of town and Representatives Konopnicki and Tovar are ill.

Representative Goodale indicated that she worked for 33 years in the Mohave County Probation Department where she was the Assistant Chief Probation Officer in charge of adult probation services.  She has also been a crime victim.  She has seen the results of a good probation system that carefully monitors offenders in the community, people going into the prison system and how the system works and families whose loved ones have gone to prison.  She related concern that nearly 1 in every 33 citizens in Arizona is incarcerated, which means something is critically wrong with the system.  Incarceration is also a very expensive option.  She added that she is strongly against drug abuse and drug crime, and she is excited about the good work the Committee is going to do.

Representative Hendrix remarked that he has been working for the last few months with
Director Charles Ryan at the Arizona Department of Corrections (ADC), discussing the challenges of prison overcrowding.  He is interested in hearing about the home arrest program.  He has no preconceived notions about what needs to be changed, and he has an open mind to more information about how to modify the current sentencing system.

Presentations on Sentencing

Rudolph J. Gerber, Retired Judge, Arizona Court of Appeals, representing self, made the following points:

• According to the Bureau of Justice statistics, the incarceration rate in Arizona is 100 more than the national average of 507 for every 100,000 people, which makes Arizona the seventh most punitive jurisdiction in the world, at an annual cost of about $30,000 per inmate.  Approximately 99 percent of inmates return to society, but many are so incapacitated by their prison experience that they commit further crimes, end up on welfare or become homeless, which is another drain on taxpayer resources. 
• In the early 1970s before mandatory sentences, someone could receive a sentence of
  5 years minimum to 30 years maximum, but there was a lot of discretion in that policy.  Now the system has gone to the other extreme with mandatory sentences, a philosophy that assumes everyone who commits the same crime is equally culpable, which is false.
• Marijuana should be decriminalized or at least ignored.  More than 20 states adopted medical marijuana procedures, yet statistics show that tobacco and alcohol cause more deaths and health problems, not only than marijuana, but serious hard drugs like heroin and cocaine.   
• According to ADC, about half of the inmates in Arizona are incarcerated for first-time, non-violent offenses.  The state could save much money and criminal education by putting most of those offenders in jail or placing them on probation.
• Once criminals are past the crime-prone ages of 16 to 24, age takes its toll on criminal behavior, so to incarcerate people for long sentences into middle-and-old-age reflects diminishing resources and diminishing returns.
• A dominant theme in the state’s correctional policy since the early 1970s has been the politicizing of corrections, i.e., using the sentencing policy in order to obtain votes.  The latest book on the subject is Sun Belt Justice: Arizona and the Transformation of American Punishment by Mona Lynch.  Judge Gerber provided a copy and encouraged the Members to read it, noting that it is not complimentary to any players except Representative Konopnicki.

Judge Gerber encouraged the Members to consider establishment of a study commission comprised of different interest groups and to enact more crime designations as open-ended rather than fixed felonies in order to motivate inmates and offenders to do well on probation and in prison, thus avoiding the stigma of a felony conviction.  He added that given the current “wars” in Maricopa County, consideration should be given to finding ways to take politics out of the criminal justice system, perhaps by having prosecutors and judges appointed rather than elected.

In response to a question, Judge Gerber indicated that in conversations over lunch years ago with colleagues in Superior Court and the Court of Appeals, dismay was expressed at procedures in Arizona, including but not limited to sentencing procedures.  Those familiar with European systems said they would rather stand trial in a European court than an Arizona court. 

In response to another question, Judge Gerber said, in his view and that of real experts, most of the sentences in Arizona for all crimes are too long, but those who deserve particular attention are drug offenders and battered women.  Battered women who kill battering boyfriends or husbands do not deserve to be treated like premeditating, first-degree murderers.  Experts believe a good policy for drug offenders is a “carrot and stick” approach where treatment is made readily available for those who want it and jail or prison is available for those who do not do well in treatment.  There is not a comparable balanced system in Arizona.

Chairman Ash noted that constituents indicated that mens rae (guilty mind) appears to have gone out of the law in some cases.  Judge Gerber replied that the area of strict liability that is the most egregious in this state is felony murder where a person is penalized with a first degree murder conviction when a death occurs during the commission of any designated felonies, some of which are very serious and some of which are less serious.  Felony murder lacks the principal notion of mens rae.  The trend in the Model Penal Code and in states that revised the
Criminal Code is to abolish felony murder or make it a lesser degree of homicide. 

Carissa Byrne Hessick, Associate Professor, Arizona State University Sandra Day O’Connor College of Law, opined that the current sentencing system in Arizona leaves a bit to be desired.  There are mandatory minimums for many, but not all crimes, and additional mandatory sentences are built in such as presumptive sentences and aggravated sentences; however, these are all sentences where judges have very little discretion to decide what sentences to impose.  There are three reasons why mandatory minimum sentences are not the best sentencing policy
(Attachment 1):   

• Mandatory minimum sentencing systems are poorly designed to reduce crime rates. 
• Mandatory minimum sentencing systems result in disparate sentences.
• Mandatory minimum sentencing systems are often inconsistent with public opinion. 

Ms. Hessick recommended creation of a sentencing commission that would give the Legislature state-specific information about detailed voter preferences, crime control measures that have worked or not worked and cost effectiveness of a particular sentencing policy.  Such a commission would also generate studies and new information in response to requests from the Legislature in order for legislators to enact sentencing policy or revise existing sentencing policy.

In response to Chairman Ash’s question about research showing that increasing the number of police officers has more of an impact at reducing crime than spending on prisons, she indicated that there are several studies, but she referenced two in the handout (Attachment 1).

In answer to a question about prosecutorial decision making, Ms. Hessick responded that much is owed to prosecutors’ good judgment and discretion but she does not believe problems are due to bad faith on their part or to not doing the job appropriately.  One benefit of a sentencing commission is that it could include representatives from prosecutors’ offices in order to obtain original data and research from Arizona to track precisely what is happening and possibly change sentencing policy in order to account for the very difficult decisions prosecutors have to make.

Chairman Ash stated that, having worked with prosecutors for a number of years, he knows there are some wonderful prosecutors with integrity, but there are also some with nefarious motives.  The current system allows prosecutors who may not have the best knowledge to take advantage of the mandatory sentencing system.  Ms. Hessick answered that the mandatory sentencing system, just as any system that asks people to make major decisions that are not necessarily subject to  external checks or scrutiny, could always be abused.  Many of her students will soon be prosecutors.  Most have good interests at heart, but as 22 or 23-year-olds they may not have the best judgment in the world.  Also, the workload of prosecutors is sometimes so high that even supervisors do not have a full picture of what is going on.  Many prosecutors’ offices have tried to deal with these issues by taking discretion away from individual prosecutors, but that also causes problems because the system depends a lot on prosecutorial discretion, and if that is not allowed, other types of injustices occur. 

Paul W. Ahler, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council (APAC), stated that this is a very important issue, not only for prosecutors, but for all citizens.  He advised that he worked in the Maricopa County Attorney’s Office for 23 years, and from 1993 to 2004 he was Chief Deputy to then County Attorney Rick Romley where he oversaw the Criminal Division where over 300 Deputy County Attorneys handled criminal cases in
Maricopa County.  A number of significant developments occurred in those 23 years:

• In 1989 a constitutional amendment gave victims certain rights, which was a huge change in the criminal justice system.  Legislation followed and the Supreme Court added criminal rules to implement those changes. 
• In 1994 Arizona had a significant rewrite of its sentencing code and implemented truth-in-sentencing, which reduced the length of sentences on most offenses but required implementation of 85 percent of the sentences, so victims could be told that the defendant will serve a specific amount of time, which could not be done before. 
• In 1996 significant changes were made to the juvenile justice system, particularly in relation to serious and repetitive offenders, which gave prosecutors the ability to direct file in Superior Court as adults on many of the most serious juvenile defendants.  

He noted that when he worked with Rick Romley, the strategy was to remove serious offenders from the streets, i.e., sex offenders, dangerous offenders who use weapons or cause serious physical injury and offenders with prior felony convictions.  The belief was that incapacitating the worst offenders would decrease the crime rate and make communities safer.  From about 1995 on, there was a significant drop in the crime rate in Arizona as the incarceration rate climbed significantly because those types of offenders were placed in prison.  Even with that said, almost 75 percent of felony offenders convicted in Arizona end up on probation.  The Administrative Office of the Courts reported that in 2007 over 82,000 defendants were on probation, so prosecutors are not sending everyone to prison.  Most people convicted in Arizona, at least for the first felony offense, end up on probation.

Mr. Ahler opined that any meaningful review of the sentencing code should begin with a review of the prison population.  APAC asked Dr. Daryl Fisher, a former Research Manager at ADC, to find out who is in prison in order to make recommendations to the Committee and others about how the sentencing code is working.  Dr. Fisher is in the preliminary stages of the study, but a snapshot of inmates in prison as of September 30, 2009 (slightly over 40,500) revealed some determinations that are important: 

• Over 83 percent of the 40,500 inmates have a prior felony record.  Many have more than one felony conviction, and thousands are on second or third commitments to ADC. 
• Of the remaining 16 percent (about 6,600), a large percentage are sex offenders who are in prison for violent offenses or drug trafficking. 
• A very small percentage (slightly over 2 percent) are first-time offenders for drinking under the influence (DUI), drug possession or property-related offenses. 
• Almost one-fourth of ADC inmates (slightly less than 10,000) have some gang affiliation as identified by ADC, which is a very strong indicator for future violence.

Mr. Ahler stated that he was surprised to learn about the wealth of information ADC has on inmates: 

• Extensive records on sex offenders, not only for felony convictions but also misdemeanor convictions and arrests.
• A database on inmates with a history of institutional violence, not only against other inmates but against ADC personnel. 
• Extensive recidivism studies done by ADC over the years. 
• Risk assessments on every inmate at ADC, which are continuously updated. 

Mr. Ahler submitted that ADC needs to be a very strong player with the Committee.  Any portion of the prison population that the Members believe could be better served in the community should be looked at to make sure that population will not be a threat if released into the community.  Trying to gauge the future potential danger of an inmate is extremely difficult, but disastrous consequences can result if public officials make wrong decisions.  He offered to share the research done by Dr. Fisher. 

When asked his opinion about the creation of a sentencing commission as a potential way to take politics out of this issue, Mr. Ahler responded that as long as all of the interested parties are brought to the table and all of the information that is needed to make better decisions is obtained, a sentencing commission may be a good option.

Representative Goodale expressed concern about the fact that prosecutors have tremendous caseloads, at least in Mohave County, and may not have time to sufficiently prepare for cases.  Mr. Ahler replied that all prosecutors’ offices suffer under those constraints in these difficult budget times, and it will probably not get any better in the next few years.

In response to questions, Mr. Ahler explained that there is a provision in law for situations in which a defendant is sentenced on two different charges.  For the first charge the individual goes to prison and for the second the individual is on probation for a period of time upon release from prison.  He does not know the number of people on probation, but ADC probably does.  Some defendants are on parole from before 1994 or on community supervision, and he can provide that number.    

Chairman Ash surmised that more prosecutors and defense attorneys would be needed in order to modify the mandatory sentencing structure so people are not forced to plea bargain.  Mr. Ahler responded that the trial rate was probably higher prior to mandatory sentencing, so returning to a system like that, which prosecutors do not recommend, would entail more trials and more people.

Chairman Ash stated that it has been his experience that offenses are charged in such a way that a person’s right to trial is taken away.  For example, an 18-year-old charged with sexual exploitation of a minor is given the opportunity to go to trial, and if he loses die in prison, or accept a plea offer from the prosecutor.  Judge Gerber in his Law Review article indicated that decisions of prosecutors often recently graduated from law school are discretionary, disparate, unregulated, hidden from public scrutiny and judicially unreviewable.  He said judges with experience and expertise in the law often have their hands tied by young prosecutors out of law school, which does not seem fair.  Mr. Ahler stated that in Maricopa County, the parameters of plea bargaining with dangerous and repetitive offenders were set by the County Attorney so that young people out of law school did not have unbridled discretion.  There was also a mechanism in place for defense attorneys who believe the results of a particular case are unjust to make an argument to prosecutors.  Additionally, there was a fairly rigorous review by peer and division level supervisors.   

Chairman Ash surmised that he saw many cases where the judge’s hands were tied when something else would have been more just than what the prosecutor proposed.  Mr. Ahler replied that he has seen cases where judges disagreed with prosecutors’ decisions, but he believes mandatory sentencing has incapacitated the worst offenders and decreased the crime rate, which is evidenced by legitimate studies by the Bureau of Justice Statistics and annual information compiled by the Arizona Department of Public Safety.

Steve J. Twist, President, Arizona Voice for Crime Victims; Adjunct Professor, Arizona State University Sandra Day O’Connor College of Law, representing self, stated that in 1977 and 1978, he was counsel for the House of Representatives and the principal staff author of the new Arizona Criminal Code which introduced into the Arizona criminal justice system mandatory sentences for repeat and violent offenders.  A review of armed robbery rates after enactment of mandatory sentencing laws for armed robbery in the mid-1970s showed that armed robbery rates decreased; therefore, in 1977 and 1978 a bipartisan Legislature looked at the unfair outcomes of what was characterized in the criminal justice system as a sentencing policy of indeterminate sentencing whereby judges had discretion to impose sentences from probation to life in prison, and determined that more severe crimes should carry more severe penalties.  Since 1978 there has been continuing debate about the affect of the mandatory sentencing laws, and many times he has heard that Arizona sentencing laws are so draconian that huge numbers of first-time violent offenders are sentenced to prison even though there are no public safety benefits.

He stated that testimony before the Legislature year after year on criminal justice policy is driven by the political views of speakers and not hard science.  He agreed with Ms. Hessick that the Legislature needs a continuing source of information, but pointed out that one of the original purposes of the Arizona Criminal Justice Commission (ACJC) that has not been met is to regularly provide information to the Legislature about the Arizona criminal justice system.   The impact of the mandatory sentencing laws should be studied year in and year out by renewing the charge of the ACJC to provide information to the Legislature on an ongoing basis with a thoughtful series of questions that allow legislators to see how the system works. 

Mr. Twist relayed that Morgan Reynolds, a University of Wisconsin trained economist, did some work through the National Center for Policy Analysis, which demonstrated the deterrent effect of America’s, Texas’ and state after state’s increasing incarceration rate and its beneficial effect on crime rates.  One thing that has not been mentioned is the number of crimes averted by more stringent sentencing policies.  The National Institute of Justice and the Bureau of Justice Statistics have valuable information not only on the cost of incarceration, but also the cost of crime to society, i.e., families who suffer, neighbors who buy burglar alarms and bars for windows, cost to the health care system, etc. 

In conclusion, Mr. Twist asked that the Committee consider using the ACJC as a vehicle to obtain information in order to make decisions about what is happening in the criminal justice system based on real science. 

Representative Goodale recalled that the ACJC was extremely resistant about allowing anyone from the public defender’s office to sit on the Commission.  Mr. Twist said he believes that is still true and the right policy.  Legal and public defenders’ perspectives are regularly conveyed to Members of the Legislature.  After further discussion about the makeup of the ACJC, Mr. Twist noted that the ACJC would need funding.

Chairman Ash expressed concern because 90 legislators, most of whom have no experience with the criminal justice system, tied judges’ hands so they cannot deviate from what the Legislature set up in very abstract circumstances.  Mr. Twist replied that he understands that concern, but when the courts had unbridled discretion to exercise sentencing authority anywhere from probation to life imprisonment, there was a history of unfairness in that similar offenses resulted in dissimilar sentences.  Experience has shown, and the Legislature representing the people said, that mandatory prison sentences are appropriate for violent offenders, repeat offenders and sexual offenders, and those are the cases for which most people go to prison.  Most people convicted of felonies in Arizona received probation (75 to 80 percent) before and after
October 1, 1978, and that is the type of information the Legislature should be given every year.  Most people have the sense that individuals are incarcerated forever because of mandatory sentences, but the most recent Corrections at a Glance shows the average length of time served at ADC is 20 months.   

Chairman Ash commented that public safety is a primary concern and a core function of government, and the interests of victims need to be protected.  In his experience, families of offenders suffer as a result of the offender’s actions.  He wants to take everything into account and will do everything possible to find hard evidence that is available because he does not want to make this an emotional decision.

Christina Phillis, Attorney Manager/Juvenile Public Defender, Maricopa County, stated that she previously worked in the Public Defender’s Office and she was a defense attorney for
17 years, so she would welcome the opportunity to be part of ACJC.  She has concerns about community safety and it is in the clients’ best interest to find ways to keep them from being a continual part of the criminal justice system.  She suggested 10 areas to consider for possible changes:

• Amend A.R.S. 13-3553 relating to sexual exploitation of a minor so possession of a certain amount of child pornography is a Class 6 felony, but distributing, manufacturing or involving children in pornography in any way remains a Class 2 felony. 
• Martin Berger, a teacher who had 20 pictures of child pornography on his computer was sentenced to prison for 200 years (10 years for each picture) but would have only received 25 years in prison if he had sexually assaulted a child. 
• Juveniles could be charged with a Class 2 felony for “sexting,” which is going on in all of the schools. 
• Some pornography sites download large files of pictures, which could include pictures involving children, so anyone who downloads the files but was not searching for those pictures now has those involving children on their computer.  If the computer is taken somewhere to have the pictures removed, that person will be turned over to the police and charged with a Class 2 felony.
• Change the designation of Class 6 felonies to misdemeanors initially, which can currently be earned in some instances, but if the person fails on probation, then it would be a felony.  People with one or two felonies on their record are prevented from obtaining jobs, housing, food stamps and loans to attend school, which also affects their family and makes it more difficult to change their life.  With a misdemeanor in the beginning, they would still be able to get a job, etc.   
• Allow some Class 4 and 5 felonies to be open felonies that could possibly be designated misdemeanors, such as some drug offenses that qualify under a Class 4 felony.  People who get off drugs and turn their life around should have an opportunity to have that designated a misdemeanor in order to move forward and take their family with them.
• Reclassify some Class 6 felonies as possible misdemeanors, such as possession of marijuana if the person is under the age of 21, some thefts and maybe some assaults. 
• Look at A.R.S. 13-702.02 relating to sentencing for more than one offense at the same time that occurred in separate instances.  Currently the second offense is heightened to give the person more prison time.  Making that happen after the third offense would be better because sometimes until a person is called to the attention of the justice court their crime spree continues, but once the person is caught, they start making changes because they are held accountable and know someone is watching them.  Rather than punish people up front for as long as possible they can be given an opportunity to turn their lives around. 
• Amend A.R.S. 13-702.02 so prior historical felonies are not used to enhance sentences when there is a very lengthy period between the prior crime and the new offense. 
• Amend A.R.S. 13-921 and 13-923 so juveniles convicted in the adult system who go to prison can apply to the court to have their record expunged, terminate probation and be taken off the sex offender registry and community notification, which is allowed for those placed on probation.  In Simmons v. Roker the U.S. Supreme Court acknowledged that someone under the age of 25 is still in the formative years and the last part of the brain to develop is logic and impulse control, which is probably why many youths enter the criminal justice system, but few people do in their late 20s, 30s and 40s. 
• Allow judges to have full discretion outside the guidelines in sentencing juveniles in the adult system.  Judges look for the best outcomes for juveniles who are likely to turn their lives around, but not if they are sent to prison for 25 years at the age of 16. 
• Automatically restore a citizen’s rights upon completion of probation or prison so the person can reintegrate into society and not commit more crimes.   
• Expunge or seal someone’s record once a person is crime free for a significant period of time for specific crimes to give people hope and something to work toward. 

Discussion followed concerning mens rae in relation to someone having child pornography on their computer.

Billy Little, Colonel, United States Air Force Reserves, Pentagon Air Force Surgeon General’s Office; Maricopa County Public Defender, stated that last week he met with a man who was a former Flagstaff police officer before spending three tours in Iraq as a Marine sniper.  He is now unemployed and they met to discuss domestic violence charges against him.  The man said he did not remember much about the incident because it was during a blackout.  The man related an incident in the City of Rumadi where he was trying to maintain security and shot a figure taking a weapon to someone else who turned out to be a child about five years old, which he cannot forget.  He also saw his own father killed right beside him, and he was shot three times and is now disabled.  Colonel Little said according to the Rand study, about 600,000 veterans are returning with similar problems and services are available from the federal government that would not cost the state anything.  People like this man who suffer from post traumatic stress disorder (PTSD) or traumatic brain injury (TBI) are very receptive to treatment.  These people can turn their lives around and do not need to go to prison; however, a change in the sentencing structure in Arizona is needed to allow judges to give these people some time in jail, but also require treatment for PTSD or TBI and assign someone to follow-up. 

Colonel Little provided draft legislation (Attachment 2) and indicated that initiatives are being worked on for a Veterans Court, which will specifically handle some of these cases.  Some of the draft legislation mirrors the current Rule 11 process for people who are troubled that the state does not want to prosecute because they are not mentally competent, but most of the language was taken from statutes already enacted in Minnesota (78 percent) and California. 

In response to a question, he agreed to provide the legislative history for the Minnesota language to Representative Hendrix.

Matthew Lowen, Steering Committee Member, Arizonans for Public Safety and Fiscal Responsibility, said sentencing and corrections across the country are changing rapidly due to the need to cut budgets and improve outcomes for communities, families and individuals who have been incarcerated.  He conveyed the following:

• According to the latest numbers from the U.S. Department of Justice, between 2007 and 2008 Arizona had the second highest percentage increase in prison population in the entire country; in fact, between the years 2000 and 2008 Arizona’s prisoner population grew 49.3 percent. 
• Arizona doubled corrections spending between 1997 and 2007 and current corrections spending stands around $1 billion, or almost 10 percent of the general budget. 
• The bulk of this growth is due to higher rates of incarceration for less serious offenses.  The most recent Corrections at a Glance from 2009 found that 52.5 percent of the state’s prisoners were convicted of non-violent offenses and 26 percent are due to drug and alcohol convictions. 
• Without reform, if current trends continue, Arizona’s prison population is projected to increase by more than 43 percent by 2017, requiring at least 17,000 new beds, additional expenditures in operating costs and $3 billion in construction costs, according to the
  Pew Public Safety Performance Project. 
• Truth-in-sentencing policies eliminated the parole review system in which corrections officials were able to assess an individual’s degree of rehabilitation and risk to the public to determine which prisoners can be safely released, which assures that people stay in prison longer, creating the bottleneck in the system that exists today.

Penny Pestle, Steering Committee Member, Arizonans for Public Safety and Fiscal Responsibility, provided a report called The State of Sentencing 2008 Developments in Policy and Practice (Attachment 3).  She stated that the cost of the truth-in-sentencing policies in place, both financial and human, and a lack of evidence that these policies are reducing crime have led many states to reconsider and explore a broad range of reform possibilities: 

• A number of states are doing things like releasing infirm and elderly inmates.
• Some states are embarking on early release programs of mostly low-level and non-violent offenders, many with drug offenses. 
• Judicial systems are increasingly using diversion programs in lieu of incarceration, including highly sensitive electronic surveillance coupled with home arrest. 
• Another diversion approach is drug and mental health courts, which are used to some degree in Arizona, but have the potential for expansion. 
• Probation and parole systems are being modified, which is happening in Arizona with SB1476, probation facilities; safe communities act (Chapter 298, Laws of 2008).  The legislation provides that if probation revocations are reduced in a particular county, that county receives an incentive to continue that kind of work.  It is a performance-based approach to reducing parole revocations, which accounts for a number of the prison population.

• In 2007 Kansas politicians passed SB14, which enacted a modest program that offers a
  60-day earned credit for successful completion of one of four rehabilitative or educational programs.  Since the reforms took effect there has been a 35 percent decrease in crime among parolees who participated in the re-entry programs and parole revocations are down by 45 percent.  These measures are expected to revert $80 million in state spending over the next five years; $7 million of the savings is being plowed back into substance abuse programs, improvements in community supervision and focus on high crime areas.  
• In 2007 when Texas was faced with a $523 million decision to build more prisons, a bipartisan coalition of legislative leaders decided to change.  (State Representative
  Jerry Madden and Professor Mark Levin, Texas Public Policy Foundation, are willing to testify to the Committee about their process.)  Texas determined to emphasize substance abuse treatment within prison as part of diversion programs.  Probation terms for drug and property offenders were cut in half with an emphasis on enhanced programming with supervision during the years when those under supervision more often reoffended.  The state ended up saving half of what it would have spent on new prisons while vastly expanding resources to stem problems at their roots.  Also, Texas passed legislation in 2009 to establish a comprehensive re-entry plan for all prisoners leaving corrections facilities with the goal of reducing recidivism.
• The Colorado Legislature will be considering legislation to provide for judicial discretion in releasing some prisoners early.  In addition, legislators will be considering reduced penalties for marijuana, small amounts of cocaine and certain prescription drugs, with the exception of date rape drugs.  The primary motivation is to reduce prison costs while enhancing safety.
• The State of Washington does a good job looking at the entire cost picture around prisons and crime.  When looking at a program like early release, not only are savings and investment into ancillary programs to keep from reoffending reviewed, but also the cost of crime.

Ms. Pestle proposed a comprehensive overhaul of the sentencing laws in Arizona, including redefining felony classes, increasing diversion programs, using house arrest and providing for work release; in the short term, an early release policy coupled with robust prisoner re-entry programs, of which she has several drafted, can be made available to the Committee.  Any changes should focus on the following goals, which are not mutually exclusive:

• Appropriate punishment, if called for, that is not overly harsh and allows for real and successful re-entry into society when sentences expire.
• Rehabilitation of perpetrators who have a chance to straighten out if given the right environment.
• Safety and cost savings for society in terms of evaded personal and property harm.
• Cost savings for taxpayers in terms of minimizing corrections and parole personnel and facilities needs.
• Restorative justice for victims who have been harmed by perpetrators.

Paul Lovelis, Project Coordinator, Pima County Public Defenders Office, read written testimony on behalf of Robert Hirsh about the unprecedented growth and cost of incarcerated inmates in Arizona in the last decade despite evidence reflecting concomitant public safety with increased prison populations, Arizona’s sometimes unfair mandatory sentencing laws and the need to change the approach for low-level offenders (Attachment 4).

Mr. Lovelis opined that the ACJC has already been charged with the mission of providing information to the Legislature on how to have a better, productive and efficient criminal justice system, but it is disconcerting that 58 percent of the ACJC is represented by law enforcement and 42 percent by judges or politicians (although only two are judges).  A sentencing commission is the way to go and the ACJC already has an efficient staff.  A well-balanced commission would be an effective way to look at the criminal justice system and determine whether or not it is efficient. 

He encouraged continuation of these meetings, noting that there are many statistics available on evidence-based practice.  He added that Texas changed its mandatory sentencing laws, and in the past three years decreased the incarceration and crime rates, so Mr. Twist’s comment that the crime rate going down is based upon incarceration rates going up is false.

Public Testimony

Donna Hamm, Executive Director, Middle Ground Prison Reform, stated that from 1989 to 1991 the Legislature authorized several thousand dollars for the Knapp Study on sentencing, and unfortunately, very few of the recommendations made in the report were ever implemented.  In 2003, Middle Ground participated in a report titled Dollars, Sentences and Long Term Public Safety (Attachment 5), which she asked the Members to consider. 

She explained that after the Oklahoma bombing, U.S. Congress passed the Anti-Terrorism and Death Penalty Act, which contained a provision offering states money that was available for six years to pass Criminal Codes with an 85 percent mandatory minimum for violent offenders.  Arizona passed the Criminal Code requiring that all offenders, violent and non-violent, serve at least 85 percent of their sentences.  After 1994, the rate of growth in prisons increased enormously and what Arizona did was far beyond what U.S. Congress authorized.  When the money went away, the Code was not changed, which is how the state arrived at the present crisis where the prison population is significantly increasing, overwhelming the resources of ADC and not serving the needs of the public in terms of long-term safety.  She made the following points:

• In looking at changes to the Criminal Code, consider not just Title 13 but also Titles 31 and 41, which control the prisons and administrative operation of the prisons. 
• There are enhancements, aggravated sentences, and there is a provision in law requiring judges to consider all sentences when there are multiple counts on the presumption that the sentences will be served consecutively.  She would like to see that provision removed so judges are allowed to determine if the sentences should be concurrent or consecutive. 
• Perhaps some of the enhancements, aggravations and mandatory sentences should remain, but maybe the length of some sentences should be reviewed in the Criminal Code Sentencing Chart.  There is an enormous social cost to families and children of prisoners as well as the collateral consequences.
• All of the release mechanisms in law were complicated but not concealed.  It is remarkable that prosecutors could not understand how to calculate someone’s sentence who would be eligible at 50 percent parole or at two-thirds hard time.  Also, that seems like an odd reason to get away from incentives for good behavior.
• Dr. Daryl Fisher also produced reports when he was with the ADC showing that when an early parole release option was available, it worked very well in controlling overcrowding, and recidivism rates for that program were not alarming.  Early release options should be looked at to relieve overcrowding.
• The ADC should not be a partner in the plan to overhaul the sentencing code, but should be used as one of many resources since ADC produces statistics that, in her opinion, are questionable.  Everyone should be brought to the table in order to hear points and counterpoints, which has not always happened in these kinds of sensitive issues. 

Mrs. Hamm offered her assistance as a resource to the Committee.

Chairman Ash stated that he intends to have the views of all parts of the criminal justice system represented.  Many new technologies have been developed in the last 10 years, which will continue.  He is looking for evidence-based practices.  He noted that Director Ryan was asked if he would like to present but his attitude is that ADC is not an advocate; the agency’s job is to enforce the laws, so perhaps at a later date ADC may have some input. 

Chairman Ash surmised that all people who wish to speak are in favor of improving the criminal justice system. 

Chairman Ash announced the names of those who signed up in favor but did not speak:

Michelle Ahlmer, Executive Director, Arizona Retailers Association

Jodie Larson, representing family, testified that her father is in prison for a first-time, non-violent offense for illegal control of an enterprise.  He is 63 and he was not convicted but forced to sign a plea.  He will be on three years probation after release from prison.  Before he was incarcerated he had to wear an ankle bracelet for a year-and-a-half that did not count towards time served.  She stated that ADC has grown to be the largest item in the state budget, requiring $1 billion or more and adoption of the truth-in-sentencing laws created this monstrous agency.  Mandatory sentencing laws have stripped judges of authority and placed many Arizona citizens in prison for unreasonable lengths of time, when many could be better served by probation, community service or rehabilitation programs. 

She continued that many inmates in the ADC system are incarcerated in minimum security facilities, and every day thousands are put on buses or vans and dropped off in cities, towns, colleges, schools, and private industries where they interact with the public.  These are men that, in most cases, are breadwinners for families who are now on welfare because their husband or father is in prison.  The state suffers because it now has to pay at both ends.   

Ms. Larson proposed a revision of the sentencing laws to give authority back to judges instead of overzealous prosecutors and allow non-violent inmates who have served at least 50 percent of their sentences to be released to the community through community service programs or, if necessary, GPS bracelets, in order to rejoin their families and become productive members of society.  This would drastically reduce the number of inmates, prison facilities could be closed and officers and support staff could be reduced, which would decrease ADC’s budget considerably.  She also proposed that the Legislature take aggressive action so the Bureau of Immigration and Customs Enforcement is responsible for illegal aliens and not the state.

When Chairman Ash asked about the statement that her father was forced to sign a plea,
Ms. Larson responded that his attorney requested $150,000 to begin a trial and the prosecutor said he would go to prison for 30 years or more if he lost.  Illegal control of an enterprise was basically a breach of contract with some clients so the severity of the charge was ridiculous.  The family did not have $150,000 and did not want to chance her father possibly losing and facing
30 years in prison, so he accepted the plea bargain.

Kathleen Mayer, Deputy County Attorney, Pima County Attorney's Office, made the following comments:

· Take the references to hard science seriously.  Look at who the criminals are, why there are so many, and at the definition of non-violent because victims of crimes have different perspectives on violence.  For example, property crimes seem to fall into the low-level offense category as not much of a threat to society, but burglars are the most repetitive criminals in society and burglary victims are devastated by the loss of safety in their own homes, violation of the personal integrity of the space of their families and theft of items that cannot be replaced.  Those kinds of things should be kept in mind when considering whether a burglar’s sentence should be shortened.

· APAC is proactively looking at how to deal with the “sexting” issue so teenagers are not charged as Class 2 felons. 

· For people who possess child pornography on a computer, it has to be proven that the defendant kept the image on his/her computer or downloaded the image, which can be done with advanced technology.  A case cannot go forward if someone inadvertently downloaded files and images came up that the person did not know about.  There is an exemption from prosecution in Title 35, so if that happens, the person can call law enforcement to say it was done inadvertently and they are on the way to see computer people to have it wiped out of their drive. 

· In the last study done by the Sex Offender Treatment Program, only 24 percent of
215 defendants admitted to having one hands-on victim even though all that was known about them was that they had child pornography on their computer.  After going through treatment and polygraphs, the 215 offenders had 3,000 hands-on victims that were never reported to law enforcement.  This is the kind of information (hard science) that is needed before deciding to adopt the recommendation of Ms. Phillis to make possession of child pornography a Class 6 felony. 

· She does not have a major quarrel with a number of comments Ms. Phillis made and she would be glad to engage in dealing with some issues that are a problem.  For example, her office is committed to a broader drug treatment diversion program that would be expanded to those whose criminal history is based on substance abuse, but ADC needs to have more money for rehabilitation and re-entry programs, and a lot more money will be needed in communities to support these individuals who would not be occupying a prison bed. 

In response to a question about the Berger case mentioned by Ms. Phillis, Ms. Mayer acknowledged that if Mr. Berger was convicted of possessing individual images, those do carry mandatory consecutive sentences.  Whether or not he would have received 200 years for molesting a child would depend on the degree of molestation and the number of times.  If he molested a child once, he would not receive 200 years.

Camille Tilley, Arizona Coalition for the Wrongfully Convicted, stated that she became involved in the criminal justice system when her daughter was falsely accused of a crime and arrested by a Scottsdale SWAT team at her home.  She was sentenced to 11 years flat time, not counting the two years she was on GPS.  Her daughter was a new hire nurse at a high school and she did not realize how at risk anyone in the caregiving field is for false allegation.  Her daughter is not a child molester, but the State of Arizona, Scottsdale Police, county attorneys who did not do their job and high-priced defense lawyers failed to investigate or do anything because mandatory minimum sentencing is the weapon that is used.  When her daughter went to trial, a 15-minute break was taken when the judge had not even heard the entire interrogation tape, so he could return with an answer.  The judge returned with two Class 2 felonies on a single incident and her daughter was taken from the courtroom.  Her attorney never prepared them for what would happen. 

She stated that she wants to be part of the ongoing dialogue.  Chairman Ash was the only state legislator to even listen to her.  He attended the Freedom March for the Wrongfully Convicted and he was the first speaker.  She conveyed that she attended a meeting of the ACJC where sheriffs from all of the counties, the Attorney General, the head of the ADC and the
County Attorney spent the afternoon debating how to handle grant money if an application is turned in one minute late.  Maricopa County and the more powerful officials took control and stated that if an application is one minute late, the applicant cannot receive grant money.  She added that she has a website, “Justice for Courtney Bisbee,” and she advocates for young professionals not to come to Arizona to teach, be a nurse or anything else until the laws are changed.

Eugene Thomas, representing self, said he has a son in the ADC system.  The United States of America is at the top of the list in the world for placing citizens in jail, and Arizona is one of the few states that enforce 85 percent on minimum security prisoners.  From his experience in working with troubled youth, rehabilitation, not incarceration, is the key the Committee should consider.  He explained that his son, Mike, was charged with a first-time DUI, but because of other circumstances, such as driving on a suspended driver’s license and a prior marijuana conviction, he was facing six years with a plea agreement or 10 years if he went to court.  The judge said if he went to court he would be convicted. He told the judge it is beyond his comprehension that a young man can be facing six to ten years for a first-time DUI.  The judge asked the prosecutor if he would withdraw the plea agreement if the court wishes to lower the sentence from six to four years, and the prosecutor said yes. 

Mr. Thomas remarked that home arrest is an excellent alternative to prison.  His son was in Florence where his family could visit, but about a year ago, he was moved to Oklahoma so he cannot even see his children anymore.  Mr. Thomas recommended doing something about non-violent offenders as soon as possible so they can get out of prison and go back to work to support their families.

James Hamm, Director, Legal and Program Services, Middle Ground Prison Reform, stated that he was in prison from 1974 to 1992 for first degree murder.  His sentence was commuted and he was placed on parole and given absolute discharge in 2001.  He earned a Bachelor’s degree in sociology while he was in prison, but that program ceased when he graduated because it became public.  He earned a law degree at Arizona State University and he works as a criminal justice consultant and paralegal for a defense attorney.  He indicated that he does not have high hopes for what is going on because the law enforcement community, prosecutors and judges have vested interests.  ADC is short on money and staff and does not have the resources to accomplish things.  Most of all, nobody is really interested in trying to figure out what can be done to ultimately reduce crime in society because it involves taking a serious look at corrections and rehabilitation.  He submitted that the Committee will make some changes, and hopefully, some of the suggestions in the report from 2003 that are still viable today will be included. 

Shawnelle Cooper, representing self, advised that her husband has been incarcerated since February 2008.  He had a substance abuse problem in the past, and during a relapse in 2007, he used poor judgment in choosing friends and became involved in illegal activity.  At the time of his sentencing for non-violent, low-level charges, the presentence report compiled by the Probation Department recommended he serve three months in jail and two years of intense probation.  The judge said she agreed with the presentence report and recommendation; however, her hands were tied.  The prosecutor informed the judge that if she deviated from the plea agreement of three-and-a-half years, he would appeal the case and take it to trial where her husband would lose due to his cooperation and admission of guilt, and he would be sentenced to serve from 11 to 27 years.  The prosecutor said the only other option was to go to trial and they did not have $50,000 to do that. 

She continued that Arizona’s truth-in-sentencing laws should allow judges to consider underlying facts in a case when imposing a sentence.  Her husband did the wrong thing and owes a debt to society, but he could have repaid that debt without spending time in a state facility.  She is also disturbed to know that when an illegal alien commits a non-violent, low-level felony in Arizona and is sentenced to prison, the government often exerts its authority to deport the person after just 50 percent of the sentence is served.  Although this avoids spending even more money to house the inmate, it is not fair to U.S. citizens who must serve a mandatory 85 percent of their sentence.  It is time for Arizona to reduce the 85 percent mandatory minimum requirement for low-level offenders. 

Ms. Cooper added that she and her daughter receive food stamps, day care assistance, cash assistance, and medical care through the Arizona Health Care Cost Containment System.  Her daughter has two respiratory and lung diseases requiring hospitalizations, emergency room visits and constant medical care, so in addition to the cost to incarcerate her husband, the state is spending more than $2,000 per month to support her family, which would be eliminated if her husband was home working.  She urged the Committee to affect the kind of changes in the sentencing code that will result in fairness in sentencing and reduce corrections spending while maintaining a high level of public safety.

Karen Bennett, representing self, Gilbert, related that she opposes mandatory minimum sentencing.  She is the mother of a daughter now serving a seven-and-a-half year sentence due to the fact that she was the victim of domestic abuse.  For the rest of her life she will be considered a felon and will no longer be able to hold a license in the medical field that she worked in prior to the assault on the person who was abusing her.  She will leave prison as a 30-year-old and will probably feel left behind when she sees that family and friends moved on in their lives, married and had children.  Hopefully, she will not rush into another bad relationship because prison does not offer rehabilitation for victims of domestic abuse.  She said the year prior to sentencing her daughter stayed home on house arrest with no incidences, which is a good alternative for people in these situations.  Any sentences that are handed down are not only to the person who goes to prison; her family is also serving the sentence and her daughter has been gone for 14 months.  She asked the Members to take a serious look at the judicial system, which needs to be fixed. 

Chairman Ash thanked everyone for participating, noting that he is troubled by the fact that more Members are not present, but he hopes they will review the recorded version.  He indicated that there will probably be more hearings, which will be noticed on calendars at the Legislature, or an email can be sent to him to be added to a list of people for his assistant to advise about future hearings.  His office is open to all citizens of the state who have a personal issue to discuss or wish to present evidence for a position. 

Without objection, the meeting adjourned at 12:37 p.m.

                                                                        _______________________________

                                                                        Linda Taylor, Committee Secretary

                                                                        January 5, 2009

(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)

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HOUSE STUDY COMMITTEE ON SENTENCING

December 15, 2009

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