Sentencing reform committee begins work on new legislation

A committee aimed at reforming Arizona’s strict criminal sentencing requirements held the inaugural meeting of what it intends to be a months-long process that will culminate with proposed legislation for the upcoming session.

Arizona’s “truth in sentencing” law, passed in 1994, abolished parole and requires prison inmates to serve at least 85 percent of their sentences. Inmates can qualify for earned release credits that allow them to serve the final 15 percent of their sentences under community supervision. 

A law enacted earlier this year, Senate Bill 1310, allows inmates who were convicted solely of drug offenses to qualify for early release after serving 70 percent of their sentences. 

The bipartisan group of lawmakers that make up the House Ad Hoc Committee on Earned Release Credits for Prisoners didn’t reach any conclusions about what exact changes they want to see, or how far they want to go. Lawmakers instead heard from several people who are in the criminal justice arena, including reform advocates and the Arizona Department of Corrections. 

Rep. Walter Blackman, R-Snowflake, who chairs the committee, said he wants to craft a proposal that will help people who are incarcerated while protecting crime victims and communities, and without raising taxes.

“This is a heavy lift, and it’s a sensitive subject to a lot of people,” Blackman said.

Caroline Isaacs, program director at the Arizona chapter of American Friends Service Committee, a Quaker group that has been a vocal proponent of criminal justice reform, urged lawmakers not to take the “path of least resistance” on issues like excluding violent offenders. 

She also rejected the idea that a far-reaching proposal won’t be politically feasible. If everyone gets behind the committee’s proposal, she said, it will become politically feasible.

“We have done incremental. We will continue to do incremental. But there’s no question that, when we have the kind of thought power and leadership available to us, it is incumbent upon us to do the most bold and wide reaching reform that we can,” Isaacs said.

Rep. Diego Espinoza, D-Tolleson, echoed Isaacs’ comments, rejecting the mantra that politics is the art of the possible. 

“Anything is possible if we put our minds to it,” he said.

On the other side of the debate was Rep. Bret Roberts, R-Maricopa. Roberts, a former detention officer with the Maricopa County Sheriff’s Office, said he doesn’t want to overreach.

“I’m a firm believer in incremental responsibility,” Roberts said.

During his first legislative session earlier this year, Blackman sponsored House Bill 2270, which would have reduced sentencing requirements for nonviolent crimes to 50 percent and for most other offenses to 65 percent. Blackman planned to amend that bill to exclude violent offenders and to require others to serve at least 65 percent of their sentences. 

Isaacs urged the committee to “hold the line” on the original provisions of HB2270. 

While Blackman was adamant that the committee’s final product won’t extend to violent offenders, he said he plans to examine the classification system that determines who is considered dangerous or violent, and is open to changes.

James Hamm, of Middle Ground Prison Reform, urged a more cautious approach. He said his organization is proposing that nonviolent, non-sex offenders be required to serve only 70 percent of their sentences. Middle Ground’s proposal would give county attorneys veto power over inmates they don’t believe should be given early release, which Hamm suggested could win over prosecutors who don’t want any early release at all.

Ron Reinstein, a judicial consultant at the Arizona Supreme Court who spent 22 years as a Maricopa County Superior Court judge and served as a prosecutor before that, said Arizona is an anomaly in having retained its strict truth-in-sentencing requirements, especially for nonviolent offenders.

“We went kind of overboard on truth in sentencing when we went beyond the violent crimes, which a lot of states stayed with, and we went to all felonies,” said Reinstein, who helped craft the 1994 law. 

Reinstein decried what he said has been increased use of “probation tails,” which occur when someone is sentenced to prison for one crime and probation for another, which he said have effectively become a new parole system without the resources that the pre-1994 parole system had. 

And he touted recent reforms in several other states, including Alaska, Georgia, Mississippi, Nevada, Oklahoma and Texas. Reinstein pointed to laws in several states making a person’s first several drug offenses misdemeanors, regardless of the drugs involved, and noted that Arizona is the only state in the U.S. where first-time marijuana possession can be charged as a felony. 

Some states have given judges more discretion to sentence people to probation for drug possession, even when they have prior offenses, Reinstein said. Others have ended the practice of sending people back to prison for technical violations of their probation.

Reinstein said states like Georgia and Louisiana, which has the highest incarceration rate in the U.S. – Arizona’s is fourth in the country – have enacted substantial reforms in recent years, and have seen concurrent reductions in their crime rates. 

Blackman said he’ll look to other states for examples of what kinds of reform Arizona might be able to accomplish. 

One thing that became clear at Monday’s meeting was that, if Arizona reduces its sentencing requirements, the Department of Corrections will to have to increase the availability of programs that inmates must complete in order to qualify for early release.

Karen Hellman, who runs the department’s division for inmate programs and re-entry, said the 13 of the division’s 26 positions for substance abuse treatment counselors are still vacant. That limits the department’s ability to provide the programs that inmates need to qualify for early release under Senate Bill 1310. She was optimistic that the department will soon fill those positions, in part due to a recent salary increase, but said the correctional system simply didn’t have enough resources to treat everyone who needed it at the time SB1310 passed.

If sentencing requirements are further reduced, Hellman said the Department of Corrections will need more resources for major programs such as substance abuse treatment, sex offender treatment, education programs and other re-entry programs. 

“Our demand is far greater than our need,” Hellman said.

As of June, the Arizona Department of Corrections had 42,312 inmates.

Advocates touted sentencing reform, along with broader criminal justice reform, as an idea whose time has come. Nonetheless, some committee members acknowledged that passing any reform legislation won’t be easy.

The criminal justice reform movement went into the 2019 legislative session with an ambitious agenda and a belief that momentum was finally on its side after years of disappointment. But its hopes were dashed repeatedly throughout the session.

Both the House and Senate judiciary committees are chaired by reform critics – Rep. John Allen, R-Phoenix, and Sen. Eddie Farnsworth, R-Gilbert – who refused to hold hearings on most of the proposals, sometimes citing opposition from tough-on-crime Maricopa County Attorney Bill Montgomery. Gov. Doug Ducey vetoed the most substantial reform measure, which would have barred prosecutors from charging people without prior convictions as repeat offenders, after Montgomery and Pima County Attorney Barbara LaWall lobbied against it.

Blackman said he speaks regularly with Allen to keep him in the loop – Allen refused to give Blackman’s HB2270 a hearing last session, and blocked several other criminal justice reform proposals – and has spoken with the Ducey administration about its expectations regarding reform.

During a press conference before Monday’s hearing, Blackman said Montgomery declined an invitation to speak at the committee, but later told the Arizona Mirror that the county attorney never received the invitation due to a miscommunication between their offices. Blackman and Montgomery had a private meeting Monday afternoon, and the county attorney will speak at the committee’s next hearing in September.

Montgomery said he supports a “broad review and focus on programming” for people who are incarcerated.

“Objective data on what is successful should drive policy review, not rhetoric. Politicizing criminal justice reform doesn’t help, either,” Montgomery said. 

Montgomery is currently being considered for a vacancy on the Arizona Supreme Court. Blackman acknowledged that enacting reforms would be easier if Montgomery were no longer county attorney. But if Montgomery is still in office, Blackman said he won’t be dissuaded by the county attorney’s influence at the Capitol. 

Blackman said he respects Montgomery, but doesn’t need his permission to push for reform.

“He may have powers behind the curtain to do whatever he does. I don’t know. But I will do what’s in the best interest of my community and the folks that elected me and the results that we get out of this committee,” Blackman said at a press conference prior to Monday’s hearing. 

The House Ad Hoc Committee on Earned Release Credits for Prisoners will meet next on Sept. 9 to discuss “handoff programs” that aid people who are being released from prison. The panel will meet again Sept. 23, when Blackman said he’ll open the committee up to comments from the public. 

Blackman said committee’s work also includes numerous stakeholder meetings, as well as meetings of subcommittees he created to examine individual issues.