As a legislator, one of the goals I envisioned for lawmakers to accomplish was some needed modifications to the criminal justice system. A number of states are saving millions of dollars by implementing evidence-based practices to improve their criminal justice systems, while at the same time they have also seen their crime rates go down. That's a win-win situation worth looking at.
While there are many different opinions about the need for changes to the criminal justice system, I believe we can all agree in general on a goal of improving what we have. We have seen right here in Arizona as well as other states, that it is possible to save millions of dollars without risking an increased crime rate. No system is perfect, but I think we should examine what seems to be working well both from a cost-effectiveness standpoint and a crime-reduction standpoint.
Most of the criminal justice system procedure that we have now was established in 1978 when the criminal code received its last major revision. Now, 30-plus years later, we have some results to look at and evaluate whether those policies worked out the way we expected them to.
One thing that has worked well in Arizona and elsewhere is to grant additional powers to the prosecutors to implement deferred prosecution programs where appropriate. These programs keep non-dangerous defendants out of the courts and out of jail. They get a chance enter a diversion program to correct their behavior and make restitution. If they successfully complete the requirements of the program, the felony charges against them are dropped -- there is no felony conviction on their record. Without the stigma of a felony conviction, their chances of getting a good job in the future will not be so severely limited.
But, if they’re not serious about wanting to change their behavior and they wash out of the program, then they will end up in court, possibly get convicted, and eventually end up in jail or prison. It’s sort of a self-selecting process where only those offenders who are not capable of self-correction end up in prison, and those who want a second chance can make amends and go on with their lives.
I’ve learned from my experience as a public defender that some offenders commit crimes as much out of ignorance or carelessness as from outright criminal intention; others, out of a failure to appreciate the seriousness of the criminal activity; and still others, out of an expectation that the criminal conduct will not be discovered. These kinds of offenders, once apprehended, will sometimes benefit from a second chance.
Another area of promise, that has strong consensus among all stakeholders, is to do a better job of aiding a successful reentry into society after incarceration. There is much that can be done in terms of assisting with employment, housing, and re-education of former offenders, as well as directing them to opportunities, resources and support available to them through nonprofits.
In 2008 the legislature passed the “Safe Communities Act,” sponsored by then-Senator John Huppenthal. Although many tough-on-crime legislators opposed this measure, it has proven to be very successful, saving the state approximately $36 million in averted prison costs in the two-year period from 2008-2010, while reducing recidivism by 28% in that same time period.
I believe there are other potential savings to be realized by making a few common sense changes to the state's criminal code. For example: once an inmate becomes physically incapable of being a threat to society because of advanced age or medical conditions, is there any reason to continue his incarceration? If he is no longer a danger to society, why should the taxpayers continue to pay for his room and board and medical services in prison? These incapacitated inmates, after appropriate risk assessment screening, could be eligible for release to consenting families and allowed to age and pass on in peace.
Another example concerns those who have spent 30+ years in prison. By some estimates, 80 to 85 percent of crimes are committed under the influence of drugs or alcohol. Once this kind of offender has spent 30 years in prison with a record free of bad marks, he has become a different person from the youth who entered prison. In fact, the number one predictor of recidivism is not social status, economic status, race, previous criminal record, or any other conspicuous factor. The number one predictor is age. As a person ages, the less likely he is to engage in criminal activity. 1
What we do with the person while he is incarcerated also needs to be improved. We need to make sure that there are sufficient education and work programs not only to keep inmates busy and occupied, but also to provide for self-improvement and self-motivation to accelerate their departure from prison. Prison is a stick, but within prison we need to provide carrots so that inmates can work hard to go home sooner by improving themselves and complying with prison rules. This only makes sense.
It is not my intention to throw out the criminal code and start from scratch. However, nothing is perfect. The original expectation behind long and harsh sentences was that getting all those criminals off the street would reduce crime and deter future offenders. After 32 years of practicing these policies, the results show that long sentences don’t have the deterrent effect we thought they would,2 and the cost burden of locking so many people away is becoming staggering.
In fact, recent evidence shows that crime is more effectively suppressed by identifying eligible offenders who are strongly motivated to self-correct, and requiring them to serve their sentence in programs or treatment under community supervision. Arizona has its own experience of seeing a 28% crime reduction over the last two years, and saving millions in averted prison costs.3
It is time to re-examine our code and tweak it where we can with proven alternatives for eligible offenders. It’s time to avoid wasting years of people's lives unnecessarily. And it’s time to improve public safety with these programs while saving the state millions of dollars by doing so.
These are my goals and I hope you will join with me. You will find many of the studies and observations from Arizona and other jurisdictions on this web site.
Cecil Ash
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1 Age and Recidivism: How Accurate are Our Predictions? by Brett Trowbridge, Ph.D., J.D. Washington Criminal Defense, November 2004, vol. 18 No. 4
2 Incarceration and Crime, A Complex Relationship, by Ryan King (Research Associate, Marc Mauer (Executive Director) and Malcolm Young (former Executive Director), The Sentencing Project, 2005
3
The Impact of Arizona's Probation Reforms - Pew Center on the States Public Safety Performance Project, March 2011
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See the research from the PEW Center on the States, from the Sentencing Project, from the National Institute of Corrections, from the conservative group Right on Crime, from other States and Federal agencies. These groups have examined America's policy of mandatory sentencing/truth in sentencing, and found it lacking in accomplishing a reduction in crime or recidivism.
In fact, real-life studies suggest that alternatives to imprisonment for nonviolent offenders, have led to positive outcomes for the offenders, for their families, for their communities, as well as a lower recidivism rate. The additional good news is the amount of savings realized by state governments which have tried these different approaches.
See the article written in the Arizona Law Review by former Arizona Appellate Court Judge, Rudolph Gerber in 2001, about Arizona's sentencing laws: On Dispensing Injustice.
See my discussion on sentencing reform.
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HB2446 Arizona sentencing commission, was the only bill of the seven criminal justice bills that I introduced in the first regular session that was heard in committee. It was heard in Judiciary on Thursday, February 17, 2011 and passed unanimously out of committee 9-0-0-0-0. (tally: 9 Ayes, 0 Nays, 0 Absent, 0 Present, 0 Excused) Every bill that passes out of committee must also be heard and pass out of Rules Committee before going to the House Floor for a vote. HB2664 was never calendared in Rules.
The other bills, HB2374 minimum/maximum terms, HB2380 medical parole, HB2378 parole eligibility, HCR2025 clemency & commutation, HB2647 sexual exploitation of children, HB2648 earned release credits, were not brought to a calendar for consideration.
Here is a description of those bills.
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HB2664 Arizona sentencing commission
This bill would establish a commission composed of volunteer appointees representing all aspects of the criminal justice system. It would be tasked with analyzing trends from data, records and policies within Arizona and other jurisdictions concerning sentencing laws, treatment programs, and sentencing alternative practices in other states. The commission would make comparative findings on the outcomes of Arizona's current sentencing structure - whether it could be more effective in reducing crime and protecting public safety. The commission would then make recommendations to the legislature. The legislature would not be bound by their recommendations. There would be no cost to the state for this commission other than those usually associated with all-volunteer commissions. This would give the legislature solid foundation upon which to make some long-overdue changes.
HB2374 sentencing; minimum and maximum terms
This bill was the result of negotiations with a small workgroup consisting of prosecutors, defense attorneys and judges, to simplify some of the sentencing procedures in our code and to grant judges more discretion.
HB2380 prisoners; medical parole
This was a cost saving measure. It provided that when an inmate is incapacitated by a physical condition, disease or syndrome, the director of the department of corrections may approve, and the board of executive clemency may release a prisoner whose physical condition renders him unlikely to present a danger to the public. The department would no longer be liable for the inmate’s continued medical expenses.
HB2378 life sentence; parole eligibility
This was another cost saving measure. It would not release anyone. It only allows those who were convicted of murder and sentenced to life imprisonment before 1973 to apply for parole on the same eligibility basis as those who have been convicted of murder and sentenced to life imprisonment after 1973. [aka: “Old Code Lifers Bill”] There are only 28 inmates to whom this could apply. All of them have served more than 35 years in prison.
HCR2025 board of executive clemency; commutation
There was a time when governors granted clemency frequently as a safety-valve to the occasional errors of the judicial system. This bill would relieve the governor of the political pressure of determining whether or not clemency is warranted, and give that duty exclusively to the board of executive clemency (all members of which are appointed by the governor), after a thorough two-phase process.
HB2647 sexual exploitation; children; classification
This is a perfect example of some sentencing statutes that need to be fixed because they challenge common sense. Appropriately, sentencing statutes generally provide that the more violent the crime, the more severe the sentence. If a person commits murder or rape, they can get 20 to 35 or more years in prison; if the crime is especially heinous, the person can get life or even the death penalty. However, under our current statutes, a collection of child porn can impose 80, 100 or 200 years in prison - depending on how many images are in the collection. This is because the sentencing code requires a 10 year sentence for each image, and the law says that each sentence has to be served consecutively (stacked, one after the other). So, if the prosecutor charges 20 counts of possession, that person will be REQUIRED to serve 200 years if found guilty. Unlike murder, the severity of this sentence has nothing to do with the violence or viciousness of the crime - a person can be sentenced to 200 years even if that person never touched, never photographed, never harmed a child in his life. IF a person could live long enough to serve such a sentence at current the annual rate ($22,800/yr), the taxpayers’ cost to imprison that person would be $4,560,000.
Now, don’t get me wrong - child pornography is sick; it's a perverse and deviant obsession. I am not defending child porn. What I am suggesting however, is that possession of computer pictures is not the same degree of predatory criminal behavior as the manufacture, distribution, or sale of child porn; neither is it a brutal, violent crime. Even in the drug statutes, possession for personal use is treated with a lesser penalty than distribution or sale. Why is possession of photos a more dangerous crime than rape or murder or even child molest?
This bill would change the sentencing code to provide that possession of child pornography is a class 6 felony for a first-time offender. It would remain a class 2 felony (more severe) for any subsequent charges. The purpose of this bill is to allow judges, rather than prosecutors, to determine the appropriate penalty for possession of child porn according to the circumstances of the case.
HB2648 community supervision; earned release
credits
This bill would reinstate incentives for inmates to earn early release credits for good behavior. Early release incentives are a very strong motivator for good behavior, and that effort is a good indicator of how the inmate will perform upon release. Currently, inmates must serve 85% of their sentence regardless of whether they were convicted of a nonviolent crime, regardless of whether if was a first offense, regardless of whether they have been a model prisoner. This bill would allow inmates with a nonviolent, nondangerous conviction to earn reduced time down to 66% of their sentence for good behavior and approved program participation. The amount of reduced time would be spent under community supervision after release. Most inmates are going to be released eventually, but the evidence shows they have a much better chance of successful reentry with a longer community supervision that helps them remain stabilized and stay on track after release.
Criminal Justice Bills Introduced 2nd Regular Session of the 50th Legislature, 2012
HB2529 board of executive clemency; commutation Judiciary Committee There was a time when governors granted clemency frequently as a safety-value to the occasional errors of the judicial system. Inasmuch as governors have refrained from granting commutations of sentences due to the political consequences, this bill turns over the right to grant clemency after a two-phase process to the board of executive clemency (all members of which are appointed by the governor). This bill takes politics out of the clemency process, and is itself, another cost-saving measure. I recently interviewed former president of the senate, Stan Turley on this topic. He completely endorses the concept of removing clemency decisions from the political arena. (Stan Turley spent 22 years in the
HB2531 prisoners; medical parole MAPS Committee This is another cost-saving measure. It provides that when an inmate is incapacitated by a physical condition, disease or syndrome, the director of the Department of Corrections may approve, and the board of executive clemency may release a prisoner whose physical condition renders him unlikely to present a danger to the public.
HB2528 pregnant prisoners; restraints prohibited; exception MAPS Committee While there are no existing problems with the Arizona Department of Corrections' policies, some county sheriff organizations have been known to use restraints on pregnant women during labor, delivery, postpartum recovery, and transportation to and from the hospital. This is generally unnecessary to prevent escape or assault, but if it becomes necessary, exceptions are provided for in the bill.
HB2527 sex offender registration; consensual acts Judiciary Committee With over 40,000 persons on
HB2522 sentencing; minimum and
maximum terms MAPS and Judiciary Committees This bill was the result of negotiations with a small workgroup consisting of prosecutors, defense attorneys and judges to simplify some of the sentencing procedures in our code and to grant judges more discretion. This bill would have yielded significant savings in averted long-term incarceration costs where incarceration is not warranted for the benefit or protection of society.
HB2525 Arizona sentencing commission Judiciary Committee This bill would establish a commission which would review data, studies, and records from Arizona and from other jurisdictions for the purpose of reviewing sentencing practices and policies for best outcomes; and to make recommendations to the legislature on what works best to maximize the public safety, rehabilitate offenders, and create economic efficiencies in our system. There would be no significant cost to the state for this commission other than providing it with data. The commission woulod be composed of criminal law practitioners and those with the resources and experience to evaluate data and make recommendations. The Legislature would not be bound by the commission's recommendations. They are only advisory.
HB2524 life sentence; parole eligibility Judiciary Committee This is another cost saving measure. It would allow those who were convicted of murder and sentenced to life imprisonment before 1973 to apply for parole on the same basis as those who have been convicted of murder and sentenced to life imprisonment since 1973, aka "Old Code Lifers Bill." All presently serving have been in prison more than 38 years. When I first introduced this bill there were 33 inmates potentially affected. Five have died and there are now 28 for whom this might apply. It does not release anyone. It just allows them to go before the Board of Executive Clemency.
HB2530 incarceration costs; municipal warrants MAPS Committee Presently, cities must reimburse counties for the cost of incarceration when an arrest is made by a city or town peace officer. This bill provides reimbursement to a county when an arrest is made by a county peace officer for a failure to appear on a city or town case.
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Evidence -based practices have led to remarkable outcomes with low risk offenders. And they are more cost-effective than prison.
Evidence-Based Practices What are Evidence-Based Practices? How are they applied in managing offenders? How does it work, what does it target, and why is it successful?
The National Institute of Justice has produced a series of seven short videos that answer these legitimate questions. The explanation of what these treatment models look like and why they work is offered by a foremost expert in this area, Edward J. Latessa, PhD, Professor and head of the Criminal Justice Division at the University of Cincinnati. He is a former president of the Academy of Criminal Justice Sciences, a consultant with the National Institute of Corrections and author of 75+ papers and studies on this topic.
What the Research is Showing
See 12/2011 brief released by the Brookings Institution on how "more prisoners vs more crime" is the wrong question to be asking, in this policy debate. "Targeted efforts to improve the social cognitive skills of young people at risk and to modify the social systems that may contribute to or reinforce delinquency can reduce crime. The benefits of such efforts can far exceed their costs."
Along this same line of thinking, MSNBC interviewed Matt Segal, about what he sees happening in America today. "Incarcerating America's Future."