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Arizona Prison Sentences Among Toughest for Many Crimes

Posted by Craig Penrod | Sep 09, 2013 | 0 Comments

by Bob Ortega – Oct.  9, 2011  12:00 AM
The Arizona Republic

Whether it's putting a shoplifter behind bars for three years or a child-porn user away for 200 yeasrk, Arizona imposes among the longest, harshest sentences of any state in the country for a wide variety of crimes.

Politically, that has been popular, but the practice carries a hefty price  tag. This year, the state will spend more than $1 billion to keep prisoners  behind bars, and that figure will balloon if Arizona carries out plans to build  or contract for as many as 6,500 new prison beds over the next five years.

Many other states, to cut costs as budget deficits have soared, have adopted  sentencing alternatives over the past decade that have slashed their prison  populations.

They diverted non-violent offenders into drug- or alcohol-treatment programs,  increased tightly supervised probation, and took other steps that experts say  save money while helping cut the likelihood that convicts will reoffend.

Nationally, crime rates have been falling for decades. Even with more  convicted criminals on the street, many of these states have seen their crime  rates fall as far or farther than in Arizona, where the prison population has  climbed 50 percent over the past decade.

But those calling for similar reforms here have been unable to persuade  Arizona's political leaders to give up their tough-on-crime stance.

“We incarcerate 40,000 people; Washington has a slightly larger population  than Arizona and it has 18,000 prisoners,” says Rep. Cecil Ash, a Mesa  Republican and sentencing-reform advocate. “Bottom line, we're spending a huge  amount of money when we have better alternatives.”

But Ash has found almost no support in his own party for changing  sentencing.

Former House Speaker Kirk Adams says he and most other legislators agree with  prosecutors that Arizona's tough sentencing laws are the reason for the state's  falling crime rate.

“If we're talking about having some people not go to prison, or letting some  out earlier, it's natural lawmakers would want to proceed very, very carefully,”  he said.

Over the past three decades, Arizona's population has leapt one and a half  times to just under 6.4 million people. The state's prison population has grown  five times as fast.

In 1980, one out of every 749 people in Arizona was behind bars. Today, it's  one out of 159, based on U.S. Census and Arizona Department of Corrections data.  Arizona has the highest proportion of people in prison of any state in the West  and ranks sixth in the country. The U.S. has the highest rate of incarceration  in the world.

One big reason for the high rate across the country, and especially in  Arizona, is a series of “tough on crime” and “truth in sentencing” measures that  lawmakers began adopting in the 1970s and continue to enact. Those laws have  sent more people to prison for longer periods of time.

Arizona politicians from former Gov. Fife Symington to Maricopa County  Sheriff Joe Arpaio have campaigned on the belief that putting more bad guys away  for longer keeps communities safer.

But the numbers don't back that up. Despite a high incarceration rate,  Arizona also has had some of the highest crime rates in the country, averaging  between sixth and seventh among all states and the District of Columbia over the  past decade, according to FBI data. A study soon to be released by the Arizona  Criminal Justice Commission will report that Arizona's murder rate rose last  year, and that rape has risen over the last decade, even though both those rates  have fallen nationally.

Over the past few years, some two dozen states – including the traditionally  punitive state of Texas – have passed sentencing and other criminal-justice  reforms, many specifically aimed at cutting prison populations.

Reforms include scaling back or eliminating mandatory sentences, giving  judges more discretion in sentencing, creating commissions to study sentencing  practices, and adopting so-called “evidence-based practices.” These policies  encourage probation for non-violent offenders, electronic monitoring and  community-based rehabilitation programs. Criminologists credit such reforms for  reducing crime and prison populations.

But the Arizona Legislature has moved mostly in the opposite direction,  rejecting efforts at sentencing reform. Last session, after being lobbied by  Maricopa County Attorney Bill Montgomery and other prosecutors, leaders buried  bills by Ash and another member of their own Republican majority who proposed  reforms – creating a sentencing commission, expanding rehabilitation practices -  similar to those adopted in Texas, Michigan, Kansas and New York. They also  rejected a bill for a study of sentencing reforms. Arizona prosecutors and most  Republican lawmakers insist that tough sentencing laws are essential to fighting  crime by ensuring violent criminals get long sentences that keep them out of  society.

Lawmakers did pass bills that increased sentences for child prostitution and  sex crimes involving children, and created new crimes relating to human  smuggling. Sponsors said the public supports tough measures for such crimes.

Spending on prisons rises

But putting more people in prison for longer is costly. Last year, as the  state slashed spending on education, health care and almost every other area,  the Department of Corrections was the only agency to see a budget increase.

In 1979, the state spent 4.3 percent of its annual budget on Corrections;  this fiscal year, Corrections will take 11.2 percent of the budget. By contrast,  over that time period, Arizona's spending on higher education dropped from 19.1  percent of the state budget to 10.5 percent.

The Corrections Department plans shortly to award one or more contracts for  up to 5,000 more private-prison beds. The state's auditor general projects that  those contracts will cost an additional $585 million over the next five years.  And if further planned expansions to add 1,500 more prison beds go ahead, those  would add nearly $400 million more in spending over the next five years,  according to the auditor general.

Those kinds of mounting costs have led leaders in other states to push for  sentencing reforms, saying it isn't a question of being soft or hard on crime  but of being smart on crime.

“We recognize the need to have public safety, but at the same time we have to  make the best use of our money,” said Texas state Rep. Jerry Madden, who  spearheaded a series of bills in his state that diverted people from prisons  into mental-health, alcohol- and drug-treatment programs, increased community  supervision and the use of electronic monitoring for non-violent offenders.  Those changes are credited with reducing the need for thousands of prison  beds.

“When I arrived at the Legislature, I had one message from my speaker: ‘Don't  build new prisons; they cost too much,' ” Madden said.

The new treatment programs and other measures cost $241 million but saved far  more. Texas scrapped plans to spend $523 million on new prisons in 2008 and  2009, and saved $36 million a year it had been paying to house prisoners in  county jails. The changes also helped cut the recidivism rate. Madden notes that  treating underlying mental-health, drug- and alcohol-addiction issues helps  remove some of the triggers that lead to crime.

Shifting priorities

Travis Pratt, a criminologist and criminal-justice professor at Arizona State  University, believes cost issues will eventually drive change in Arizona,  too.

“Most states that have started to back off from the get-tough approach  haven't done so because of some ideological shift; they've done so because  they're broke,” Pratt said. “They don't want to be less punitive, but they  recognize that they've hit the fiscal limits of that agenda.

“Arizona will eventually hit that. It will become too expensive to maintain  one of the highest incarceration rates in the nation.”

While “policy makers found long ago that there's political capital to be  gained by being tough on crime – the same philosophy that gets Arpaio elected  and re-elected – that's not at the top of the political agenda anymore,” Pratt  said. “Now it's all about the economy, jobs, health care. Crime is slipping down  the list, and policy makers won't get the same political capital out of the  issue as they did in the past.”

Others aren't so sure.

“We see a lot of pushback, even against things we know will work here,  because right now the system is very favorable to prosecutors . . . and the  benefits of sentencing reform are more difficult to see, so politically it's a  tough sell,” said ASU law professor Carissa Byrne Hessick, who has worked on  sentencing-reform proposals.

“The prosecutors in this state seem to be well-organized, and they're very  opposed to any sentencing changes,” agreed Donna Hamm, a prison-reform activist  and former state judge. “Judges don't have a lot of power over the length of  sentences . . . there are a lot of mandatory minimums that have to be imposed.  So the prosecutors are really driving that engine, because they decide which  charges will be filed and which ones won't be.”

Kim MacEachern, staff attorney for the Arizona Prosecuting Attorneys'  Advisory Council, agrees with Hamm on one point: Prosecutors see no need for  change.

“When we look at who is in prison, we believe the right people are there,”  she said. “And that has to be playing a role in the decrease in the crime  rate.”

Most criminologists, however, don't agree with that assessment.

“The research shows that incarceration is way overrated in terms of its  ability to control crime. The ups and downs in the crime rate have a low  correlation with incarceration rates,” said Mona Lynch, director of the Center  in Law, Society and Culture at the University of California-Irvine. Five other  criminologists interviewed for this story agreed with Lynch, saying that scores  of studies have shown that it's possible to lock up fewer people while still  cutting crime.

A 2010 analysis of more than 400 studies for the National Institute of  Corrections found not only that the longer the sentence, the more likely a  convict is to reoffend, but that rehabilitation succeeds far more often in a  community rather than prison.

Tougher penalties

Arizona has had a well-deserved reputation for handing down tough sentences  since territorial days. But beginning in 1978, state lawmakers began to adopt an  ever-wider variety of laws that increased the number of crimes, imposed harsher  penalties and reduced the ability of judges to use their own discretion in  handing down sentences or revoking probation.

Much of this coincided with nationwide sentencing trends, but as Lynch, the  criminologist, describes in her book, “Sunbelt Justice,” Arizona led rather than  followed in tightening the screws.

These changes included, in 1978, presumptive sentencing, which imposed  specific ranges of sentences for each type of crime. The idea was to make  sentencing more consistent, but the change also put more power in the hands of  prosecutors, who decide what violations to charge. Another change, mandatory  sentencing, imposed specific longer sentences and eliminated the option of  probation for violent crimes, sex offenses, repeat offenses and certain drug and  DUI crimes.

Under those laws, in 1988, Jay Martin Jonas of Bisbee was sentenced to 25  years in prison for selling a marijuana cigarette, for a dollar, to a  14-year-old juvenile delinquent. He got 22 1/2 years more tacked on for  agreeing to fence a handgun the boy had stolen. Jonas, then 21, had a prior  felony, so the two sentences were imposed consecutively without any possibility  of parole.

On appeal, Arizona Supreme Court Justice Robert Corcoran, writing for the  majority, noted that Jonas' sentence “is among the harshest in the nation,” but  he upheld it. In his dissent, Justice Stanley Feldman replied, “Actually, it's  the harshest. Arizona is the only state that would or could incarcerate a  first-time seller of one marijuana cigarette to twenty-five years in prison  without parole to be served consecutively to any other sentence imposed.”

Jonas' attorney eventually won him some relief. He was released last year,  after serving 22 1/2 years in prison.

“Sometimes,” said Feldman, now in private practice, “common sense tells you a  thing is so unjust it violates the Eighth Amendment,” which bans cruel and  unusual punishment. He said Arizona's criminal code can and does result in  sentences that are “counterproductive, unjust and create too much expense.”

Prosecutors wield more power

In 1993, Arizona adopted “truth in sentencing” laws. These abolished the  ability of parole boards to award early release for new crimes. They required  offenders to serve at least 85 percent of their sentence before being eligible  for community supervision; and required serving 100 percent of the sentence for  many felonies. Before, inmates typically had been eligible for parole after  serving from half to two-thirds of their sentences. While most states adopted  “truth in sentencing” laws for violent crimes, Arizona was one of only four to  impose the rules on non-violent crimes.

Another change greatly reduced the option to let sentences run concurrently,  as most states allow, when someone is convicted on more than one charge. It made  consecutive sentences the default option and mandated them for certain crimes,  including most crimes against children.

For Phoenix teacher Milton Berger, who was convicted in state court in 2003  on 20 counts of possession of child pornography, each with a mandatory minimum  of 10 years, the consecutive-sentencing rule put him behind bars for 200 years  with no parole. If Berger, now 61, reaches the median life expectancy for a man  his age – 81 – Arizona taxpayers will spend more than half a million dollars to  keep him in prison. Berger took his chances at trial because the plea bargain he  was offered – 40 years with no parole – would essentially have been a life  sentence.

In contrast, Deewayne Bowdoin of Willcox was prosecuted in U.S. District  Court in Phoenix for possession of child pornography last year. He received five  years in federal prison, “a just sentence for his role in the sexual  exploitation of children,” said then-U.S. Attorney Dennis Burke.

Critics say Arizona's mandatory-sentencing laws, meant to provide  consistency, instead have moved discretion out of the hands of judges and into  the hands of prosecutors, giving them enormous leverage to pry plea bargains  from those accused and resulting in huge disparities.In the last fiscal year,  plea bargains accounted for 95.6 percent of all felony criminal convictions in  Maricopa County; only 1.6% of felony criminal cases filed went to trial,  according to court records.

“Sentencing is nearly all done by plea bargaining instead of before a judge  in open court,” said Pima County Public Defender Robert Hirsh. “The deal is  always driven by the risk of a higher sentence.”

In 2009, William Johnson was charged in Maricopa County with felony  shoplifting. To avoid a sentence of 10 years at trial, he agreed to plead guilty  and received three years in prison for stealing a $3 bottle of wine. The plea  bargain was considerably longer than the norm for similar crimes in most states,  say defense attorneys.

States cut costs, decrease crime

While many states went down the same sentencing path as Arizona, in recent  years most have walked back from such practices. Even the few states with higher  incarceration rates than Arizona, such as Mississippi and Texas, saved money by  cutting prison populations while also seeing deep drops in crime.

New York cut its prison population by 20 percent over the past decade, and  New Jersey by 19 percent, while both states saw overall crime rates fall by  similar rates as in Arizona and violent crime rates fall farther. Both states  scaled back mandatory sentences for drug offenses and gave judges more  discretion to send offenders into drug-treatment programs.

Mississippi, in 2008, brought back parole and scaled back mandatory sentences  for a variety of non-violent offenses, retroactive to 1995. Over the next year,  the state released more than 3,000 prisoners on parole an average of 13 months  sooner, saving more than $40 million. Mississippi also saved roughly $12 million  a year by expanding the use of home arrest with electronic monitoring. Its crime  rate fell nearly 7 percent.

Many other states, including Georgia, Kansas, Florida, Michigan, North  Carolina and South Carolina, have taken similar measures. Across the country,  crime rates have been dropping for years, even as “we see an increasing trend of  states turning to alternative sentencing measures and reforms,” said Judith  Greene, director of Justice Strategies, a non-profit group that studies  incarceration policies. Like ASU's Pratt, she said the budget crisis has been an  impetus; but with the declines in crime “people are a little less ready for the  kinds of old, knee-jerk solutions proposed when crime was rising and people were  feeling a desperation about what to do about it.”

After peaking in October 2009 at just under 40,800, Arizona's prison  population has dropped by about 700 inmates; officials say changes in probation  practices are sending fewer people back to prison for minor infringements of  probation.

Arizona's auditor general, in an audit last year, said the state could cut  its prison growth by adopting sentencing reforms other states have put in place,  and by expanding who is eligible for the diversion program voters created in  1996 through Proposition 200. Except for methamphetamine users, who are  excluded, that proposition requires first- or second-time non-violent drug  offenders to be put on probation and sent to a treatment program instead of  prison. A 2006 Arizona Supreme Court study estimated this measure keeps more  than 1,000 people a year out of prison, at an annual savings of about $11.7  million. ASU's Hessick said extending the program to meth possession could save  $6 million a year more.

State legislator Ash said he plans to propose sentencing reforms again next  session, for the fourth year in a row.

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The above article details how Arizona imposes some of the longest sentences  of any state in the country for a wide variety of crimes.  Vehicular crimes in general carry prison sentences that are grossly disproportionate with most of the rest of the country.  A typical mandatory sentence for a motor vehicle accident resulting in the death of another when the driver is impaired is 10 years in prison irrespective of a person's lack of criminal history or standing in the community.  Yes.  Even Mother Teresa would have gotten a decade in prison if she got in an accident after a couple glasses of wine and her passenger, who was equally or more impaired, didn't fasten his or her seat belt.  Lengthy prison terms should be imposed on bad people, not good people who had a bad day.  No legitimate societal purpose is served by our one-size-fits-all mandatory sentencing code.

If you find yourself facing criminal or DUI charges, contact the lawyers at the Law Offices of Craig W. Penrod for a free initial legal consultation.  Craig Penrod has been certified by the State Bar of Arizona as a criminal law specialist and The Law Offices of Craig W. Penrod has been involved in criminal and DUI defense for more than 20 years.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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