ARIZONA HOUSE OF REPRESENTATIVES
Forty-ninth Legislature – Second Regular Session
Representative Goodale Representative Ash, Chairman
Representative Konopnicki (excused) Representative Tovar (excused)
Representative Sinema (excused)
Chairman Ash remarked that the state’s financial situation has compelled legislators to re-evaluate state government and this seems like a good opportunity to review the state’s sentencing structure. There have been 30 years for evaluation since the Sentencing Code was reenacted in 1978; there have been some good results, but some things need to be looked at in light of technological advances and other methods of incarceration, sentencing and rehabilitation.
Mrs. Goodale welcomed everyone and said she is excited about the opportunity to look at new research and what has been working in other states. She served as a probation officer in
Mohave County for 33 years where she interacted with many people in the criminal justice system from the judiciary to the prisons. She believes it will be possible to develop a better product that will serve everyone while preserving public safety, which is first and foremost, and fiscally watching taxpayer dollars.
Mr. Hendrix stated that he appreciates Chairman Ash taking a lead on this issue and he looks forward to being involved.
Testimony on Sentencing
Representative Jerry Madden, Texas House of Representatives; Vice-Chairman, House Corrections Committee; Member, House Judiciary and Civil Jurisprudence Committee, via teleconference, stated that Texas has been held up as the leading example of what is now called justice reinvestment. He said he had no experience in the criminal justice system until 2005 when he was appointed Chairman of the Corrections Committee by the Speaker of the Texas House of Representatives who gave him the directive not to build new prisons because they cost too much. When the Texas Legislature entered the 2007 Session he was informed that the prison population would increase by 17,000 by 2012. It costs about $42 per day to house each prisoner and Texas had over 150,000 prisoners.
Representative Madden related that he worked with a Senator who is knowledgeable about the prisons to make sure the system is cost-effective and things are done the right way. The probation system was reviewed to determine how it is working. Most prisoners were not directly sentenced, but violated probation, and 13,000 were technical violations, so to lower those numbers, it was necessary to determine how to break the cycle of recidivism. The best and cheapest place to do that is when people are young so they never get into the system; the second place is in the school system; the third place is probation; the fourth place is in the prisons by providing the right programs; and the last place is when prisoners are on parole and back in the community.
He said in reviewing who is in prison, it was determined that many have drug or mental health problems, many are school dropouts or low performers and many have a combination of those issues. The three types of prisoners are the really bad individuals that if let out of prison return immediately for which it is a waste to spend money on, those who will never return to prison for which the only item he would consider spending money on is education so they become better taxpayers and the majority that he calls swingers who may or may not return depending on what programs and treatment are provided and their drug habits or alcoholic problems. The swingers are the prisoners that were concentrated on in Texas, and a critical item in doing that is good risk assessment.
Representative Madden noted that in Texas money was added for treatment of probationers with mental health problems and support was provided to the Nurse-Family Partnership at a cost of
$8 million to break the cycle at a young age. To break the cycle in schools, some things in school districts were changed such as no longer allowing violations of the code of conduct to be a misdemeanor, reviewing gang and bullying activities, along with intervention and support for juvenile probation. Much time and effort was spent to make sure there were enough probation workers with proper caseloads, as well as intermediate sanction facilities, substance abuse facilities and specialty courts were expanded to give judges more options.
He said that in prison the therapeutic treatment program for drug addicted individuals was expanded and a program was put in place for alcoholics.
Representative Madden stated that for parole additional substance abuse treatment beds and intermediate sanction facilities were provided. The parole rate was reviewed and the
Parole Board was asked to review the guidelines for release of the lowest-risk prisoners; Texas had about a 26 percent parole rate that was raised 3 to 4 percent without impacting public safety, which is the number one priority. He added that there are wonderful think tanks that can develop ideas.
Representative Madden advised of the successes achieved in Texas:
- The projected cost of between $1.5 billion to $2 billion to build prisons and $40 million to run each prison per year was not incurred, but about $240 million was used for the additional programs.
- To date, the prison population has been reduced by about 2,500 prisoners.
- It is difficult to measure success for recidivism because there is a three-year measurement period, but some intermediate tracking can be done. The parole revocation rate dropped by 29 percent the first year and another 3 percent in the second year, and there were fewer people in the juvenile and adult probation systems.
- Crime rates and violent crime rates are down.
- The state is having trouble filling the additional 3,200 specialty beds for drug abusers because the specialty courts were increased and are keeping people out of the facilities and within the community, which means crime victims are being paid, more child support is being paid and the taxpayer burden is lessened.
- The revised forecast indicates there is no need to build new prison beds, at least in the next three to five years.
He suggested for the short term that Arizona concentrate on probation, which is where a quicker savings can be realized, dealing with and working on progressive sanctions, looking at specialized courts to help keep people in local areas, and parole rates to see if low-risk prisoners can be paroled without endangering public safety.
In response to questions, he indicated that money will have to be invested in all of those areas, except possibly parole. Additional funding was not provided for ankle bracelets in Texas and only a few minor changes were made to the definition of any crime. In reviewing ankle bracelets, he found that some money can be saved with certain people; ankle bracelets are a definite incentive for many not to go out drinking, for example. He said sentencing reform was not addressed in Texas.
Chairman Ash asked if Texas provided for early release of some prisoners.
Representative Madden replied that there was not an early release program specifically, but people were eligible for parole review and the Parole Board was asked to look at the parole rates. A risk analysis was already set up by the Legislature as a guideline for parole, which was not changed, but by putting programs in place, providing intermediate sanction facilities and additional caseload funding, parole departments can watch parolees better within the community. Some people will probably not endanger public safety while on parole, which otherwise might have been put aside for another year or two.
Dana Hlavac, Deputy County Manager, Mohave County Criminal Justice Services, addressed the Committee about his perception of issues involving the sentencing laws of Arizona and made
13 specific recommendations (Attachment 1).
Dr. Daryl R. Fischer, Author “Prisoners in Arizona, A Profile of the Inmate Population [March 2010], related that he is the former Research Manager for the Arizona Department of Corrections (ADC). The report he authored was commissioned by the Arizona Prosecuting Attorneys’ Advisory Council (APAAC) and provides the most in-depth statistical profile of the Arizona prison population ever attempted. As of September 30, 2009, ADC housed 40,514 inmates, including 40,431 sentenced for crimes committed in Arizona. The purpose of the study was to help in the debate concerning alternatives to incarceration and early release of state prisoners as a budget-cutting measure. Since non-violent first offenders are usually the first group to be considered for some type of early release, the thrust of the study was to determine how many inmates fell into this category. It was also possible to develop a broad array of statistics detailing the present and past criminal activities of Arizona prisoners.
Dr. Fischer reviewed statistics from the report and noted that the fact that 94 percent of inmates are violent or repeat offenders runs counter to perceptions of some outside observers who stated publicly that as much as half of the prison population consists of non-violent first offenders, the kind normally targeted for some type of early release. He said the criminal justice system is working fairly well. There are not a large number of non-violent first offenders in custody and those that are in prison are there for definite reasons.
He stated that the conclusion of the analysis is that the state appears to be getting its money’s worth for the current $1 billion annual investment in the prison system. A previous study conducted while he was with ADC showed that recidivism rates were reduced by 25 percent for inmates who actively participated in rehabilitation programs prior to release. The greatest reductions in recidivism were recorded by inmates who served 10 years or more. Inmates need to be prepared to successfully return to the community, and when adequately funded, ADC does a good job of making sure that happens.
Dr. Fischer conveyed that as far as the overall picture of crime, the incarceration rate in ADC increased by 18.3 percent since 1995; the crime rate dropped by 42 percent since 1995 and reached the lowest level on record since 1966. Violent crimes are at the lowest level since 1971, which he believes is mostly due to implementation of Truth-in-Sentencing in 1994 and the dedicated efforts of police, prosecutors, prison officials, etc., to keep dangerous felons behind bars. Prison population growth in Arizona appears to have leveled off, and according to the Phoenix Police Department, violent property and drug crime in the city dropped by 24 percent over the last two years, which bodes well as far as future prison population growth. He added that the entire report is available at www.apaac.state.az.us.
When asked if crime rates have dropped nationally, Dr. Fischer responded affirmatively and said it correlates with the fact that many states adopted some form of Truth-in-Sentencing, which he believes serves as a deterrent to crime to some extent. There is no proof that incarceration reduces crime, but while an active criminal is locked up, that person is not committing crimes.
Chairman Ash noted that only 5.8 percent of the ADC prison population are non-violent first offenders, but just 2.8 percent of those might be considered for early release. Dr. Fischer responded affirmatively, noting that there may be a question of why that lowest group is even in prison. He mentioned that although a high percentage of the prison population consists of repeat offenders who have high recidivism rates, that is not the case for all inmates. Many older inmates have lower recidivism rates, which does include repeat offenders. The older inmate population could be targeted for early release, but unfortunately, many are convicted of more serious offenses such as murder and child molestation. He recommended consideration of alternatives for people with sentences of one year and under, many of which are convicted of less serious crimes and have no history of violence. Many have priors, but if those are not too serious, it may be appropriate to divert those prisoners to the counties to ease fiscal pressures on the state.
When asked about Representative Madden’s description of the three types of inmates,
Dr. Fischer replied that he developed a risk assessment instrument for ADC that sorts offenders into high, medium and low-risk groups. Low-risk inmates will succeed no matter what is done for them; high-risk inmates have recidivism rates that seem to be relatively insensitive to much intervention; and the medium-risk (swing) group can go either way, which is where he believes the majority of resources in the prison system should be diverted to try to rehabilitate.
Robert Hirsch, Pima County Public Defender, reviewed a handout relating to the way drug and alcohol offenders are handled in Arizona (Attachment 2). He questioned if it is the right thing to do and if money should be spent to incarcerate people for small quantities of drugs since most are addicts who cannot help themselves. He submitted that it is best not to worry about priors, but to worry about treatment to get people off drugs and alcohol and out of the prisons. He endorsed New York’s Drug Treatment Alternative to Prison (DTAP) program and offered the following strategies for efficient crime control:
· Develop sentencing guidelines in non-violent offenses that enable judges to make treatment and community confinement decisions based on evidence-based practices.
· Implement cost-effective and workable programs for drug and alcohol offenders in lieu of prison.
He added that Pima County needs money allocated for community treatment to take care of these people and make some changes.
Derek Rapier, Greenlee County Attorney; Chairman, Arizona Prosecuting Attorneys’ Advisory Council (APAAC), advised that APAAC commissioned the study by Dr. Fischer because of the financial problems of the state and the fact that the criminal justice system is not budget protected by referendum or otherwise; it has been protected throughout the years by a notion that the first duty of government is to keep the public safe. Additionally, there has long been a notion that prisons are filled with first-time non-violent, mostly drug user offenders, which is not accurate.
He said the drug problem in Greenlee County usually involves methamphetamine and/or marijuana, which has been attacked in a multidisciplinary fashion by providing more counseling in jails and long-term treatment, but there has to be some “teeth” in that if recovery is not taken seriously, there will be consequences because people do not accept things such as property crimes and murders. He said he would love to have a panoply of options available, but he is not willing to suggest that because the mental health system or substance abuse treatment are funded, sentencing should be changed and these people should be released.
Mr. Rapier contended that the statistics in Dr. Fischer’s study show that the right people are in prison, i.e., repeat and violent offenders (94 percent). He opined that there is great danger in making changes in Arizona without the investment in alternative systems that
Representative Madden talked about, which the state has not been willing to fund. He indicated that anecdotal situations provide a snapshot and not a true picture of the overall problem, which is one of the values of Dr. Fischer’s study. The prosecuting community does not suggest that simply throwing people in prison is the one factor in reducing the crime rate, but it is not something that can be ignored. There have been reductions in crime rates, not only in Arizona, but across the country, particularly in states where mandatory sentencing has taken place. Truth-in-Sentencing has resulted in a finite system where people who are sentenced to ten years know they will serve eight-and-a-half years. There was also a reduction in overall sentence prison exposure that some may argue was not enough or in certain crime areas was not sufficient, but an attempt was made to address that, and there is honesty in the system now that was not present before.
Mr. Rapier submitted that if a policy is pursued not to incarcerate child pornography defendants, children in Arizona will be at increased risk; it is disingenuous to say there is no link between child pornography and child sex crimes. He cannot explain or quantify that link, but he is confident in saying that reducing that crime will result in increased risk to children.
Chairman Ash mentioned a newspaper article about a man who was sentenced to 14 years in his wife’s slaying, yet someone with no prior criminal history who looked at 11 pornographic pictures was sentenced to 100 years. Mr. Rapier opined that judges should be given more discretion to handle those types of cases concurrently or consecutively. He added that he is not opposed to looking at alternative solutions, but pointed out that someone who is released from prison and on the street likely poses some risk.
Jeremy Mussman, Deputy Director, Maricopa County Public Defender’s Office, expressed concern that the report by Dr. Fischer is being portrayed as a roadblock to any changes in the criminal justice system. He noted that during an interview, Dr. Fischer said “I did this report for the prosecutors, but if I was doing it on my own, I would take a more balanced approach,” and Dr. Fischer repeatedly explained that the report does not address risk to the community.
Mr. Mussman opined that the report creates categories that are quantified based upon macro information that is not tied to specific individuals who are in custody, and at times the information is based on anecdotal information that is not part of the charge for which the defendant was actually convicted. It does not address the specific risk analysis of each individual, and Dr. Fischer specifically referenced that he has a risk analysis tool that ascertains whether or not individual defendants are a high risk to the community.
He continued that APAAC provided him with the database to Dr. Fischer’s report where he found information showing that anyone who has a G (general risk) or V (violent risk) rating of 3 or lower is low-risk. Based upon that data, there are 6,641 individuals currently in custody that are at the lowest end of the risk scale (Attachment 3). At $56 per day that calculates to a savings of $375,000 per day and over $136 million per year for that group alone. By looking at anyone who is G3 or V3, the calculation is upwards of $500,000 per year. He submitted that this data needs to be cross-referenced to figure out the following:
· How much money can be saved immediately by early release and which individuals can be released.
· What inmates do in ADC to have such a low-risk factor.
· What can be done to encourage inmates to take advantage of rehabilitation programs.
· How these people ended up in ADC in the first place, especially G1 and V1 individuals who are low-risk and self-correcting, but after exposure to the ADC environment may leave prison and be a danger to the community.
Mr. Mussman asked that a small stakeholder group be created to analyze this data and develop recommendations.
Senator John Huppenthal, related that he chaired the Judiciary Committee for two years and read research to use best practices to guide policies. As he encountered groups that are intent on reducing the prison population, it struck him that it is a noble objective, but it needs to be a secondary objective. In New York State, the objective was to reduce crime, and a reduced prison population was a byproduct. He suggested an experiment in Arizona with accountability measures at the local level as was done in New York City by Chief William Bratton, which resulted in a huge reduction in crime and the prison population. Another element would be to increase the circulation rate of the prison population with guidance from researchers. Also, Texas has more differentiation in prison populations, i.e., special prisons for extremely low-risk inmates, to reduce the cost of operating prisons, which should be a key piece.
He added that he worked with the Pew Foundation on legislation to implement an incentive system for people on probation whereby the length of probation is reduced using a specific formula if an individual is drug-free and meets community service and restitution requirements. The results appear to be very good so far; an all-time record of successful completion of probation was reached and revocation rates to prison decreased by 12 percent. He said perhaps this type of incentive can also be used with prison populations.
Mona Lynch, Associate Professor, Criminology, Law and Society, University of California Irvine; Author “Sunbelt Justice: Arizona and the Transformation of American Punishment” [Stanford University Press 2009], reviewed Arizona’s history in relation to the prison population and sentencing reform from the late 1970s to 2010 when Arizona is now faced with an unprecedented budget shortfall and immense pressure to make fixes to the criminal justice system. She made the following statements about Dr. Fischer’s report:
· It does not speak to creating an efficient and effective criminal justice policy; it is as if prison or nothing is the underlying assumption. There is no discussion of other interventions that may be more cost-effective and more effective in general.
· There is a theory that incarceration works when much research suggests that is wrong, particularly for drug offenders. It does not consider the unintended negative consequences of imprisonment for the people in prison, as well as families and communities.
· It states that the prison population increase has contributed to crime decline, but crime has gone down everywhere, which many people believe is an aging factor, i.e., the crime-prone group is smaller now than in the 1980s.
· There are inferences about causality with no data to measure causality.
· The suggestion that longer sentences are more rehabilitative is problematic because an older population is leaving prison that is now in their less crime-prone years. Similarly, offenses that may result in long sentences typically have low recidivism rates; they may be very serious but do not tend to be high repeat types of crimes.
· It does not consider alternative explanations for recidivism, including the failure of incarceration relative to other potential interventions.
Ms. Lynch endorsed the idea of creating a bipartisan stakeholder group to categorize populations to be let out as a short-term response, but opined that some long-term solutions are also necessary, which means more money directed toward programming in prisons rather than simply warehousing. Graduated release is considered an important way to get people back into communities through re-entry facilities, etc., and those types of low-cost releases can be done if sentences are shortened. The difficulty will be determining the parameters of populations to be left in prison and those that can be better served in other types of facilities.
She said New York, Kansas, New Jersey and Michigan all used a combination of sentence reform, alternatives to prison programs, early release programs, graduated release programs, investment in specialized courts and specialized treatment programs, etc. A report by
Judith Greene tells how four states greatly reduced the prison population. Ms. Lynch made the following suggestions:
- Decide which offenders need to be in state custody as opposed to alternative local sanctions, calculate the optimal size to work with for long-term planning, make sure offenses that might be better addressed at the local level are legally eligible for local sanctions and consider whether the marginal cost of some lengthy sentences outweighs the marginal gains financially and on public safety grounds.
- Build upon successes such as the incentive program mentioned by Senator Huppenthal.
- Incentivize counties to manage offenders locally, develop effective crime prevention and/or early intervention programs and discourage sending an inordinate number of offenders to the state for incarceration.
- For offenders in prison, adequately fund custodial and after-care interventions that have been demonstrated to reduce recidivism.
- Consider using “carrots” and “sticks” to encourage local collaboration in these kinds of efforts.
Chairman Ash pointed out that Ms. Lynch is from California and paid her own way to testify.
David Gallagher, Executive Director, Arizona Addiction Treatment Programs, Incorporated, stated that he represents an out-patient clinic for licensed behavioral health, substance abuse and Driving Under the Influence (DUI) diversion and out-patient treatment. The company contracts with the Administrative Office of the Courts and most referrals are from Maricopa County Probation. He talked about the prevalence of alcohol and drug abuse among young people and adults. He said some progress and changes have been made in Juvenile Court, at least in Maricopa County, through a program that Senator Thayer Verschoor came up with that was implemented in October 2009. Also, people from the Adolescent Substance Abuse Program are developing good ideas about diversion, prevention and educating probation officers and parents.
Sandra Guziejka, representing self, Gilbert, testified that she has a son in ADC who is a non-violent offender and questioned why he cannot be released on electronic monitoring, especially since she and her husband are willing to be responsible for him on house arrest until his sentence is completed. When Chairman Ash noted that Truth-in-Sentencing requires inmates to complete 85 percent of their sentence, Mrs. Guziejka responded that her son has done that.
Chairman Ash stated that her son should be eligible for release on community supervision and noted that posting of a bond is used in many areas of the economy to ensure performance, which he believes some families would be willing to do. Mrs. Guziejka clarified that her son has a disability and is not able to produce urine samples in front of anyone, so he was allowed to do dry cell testing. All of a sudden, he was not allowed to do that, so he filed a lawsuit for violation of his civil rights. He never tested positive for anything and he is asking for alternative methods of testing, but he is losing some good time because of it and his contact visits have been reduced.
Chairman Ash noted that he cannot get into specific issues, but as a policy measure, it is necessary to explore the options for releasing people early who are not a threat, particularly if the inmate has family or community support. He added that he will look into the situation.
Raymond Beckmann, representing self, Chandler, said he has an incarcerated stepson who is serving a five-year plea bargain sentence for merely possessing child pornography on his tainted computer. In 2001, over 10 different people and minors had access to his open passwords and unsupervised computer in his apartment. Parental controls and blocks did not exist at that time, and only today is sexting by preteens and cyberbullying being defined, which were definite behaviors that were perpetrated on his son’s computer. False accusations, ignorance, poor lawyers and prosecutorial misconduct are reasons for this miscarriage of justice. His son will be labeled a lifetime sex offender and will be severely restricted by those rules as long as he lives on the outside, which are almost impossible for any human being to comply with, and if he violates those rules, he will be resentenced for the same prison time he originally served.
He asked the Members to eliminate the Adam Walsh Act and not adopt a new version, submitting that it has been proven not to work and it does not protect children in Arizona. He indicated that there is a need to reform Arizona’s unjust existing sex offender and child pornography laws, which are overly broad and flawed. He raised the following points:
- Why has the required time to serve been changed from 65 to 85 percent?
- There is no consideration in the laws for early release for sex offenders, especially the non-contact, non-dangerous, non-violent, no possession of child pornography types.
- It is against the U.S. Constitution and it should be against state law to create and punish a class of people for the rest of their lives.
- Why is computer not included in the classification of A.R.S. Section 13-3553 since sexual exploitation of a minor is not clearly defined; it is a computer crime and should be properly identified as such.
- Grouping all sex crimes together is too much.
- There is great disparity of punishment for child pornography possession countrywide. California classifies child pornography as a misdemeanor and New Mexico does not even apply possession of child pornography. All other states apply minimal sentence times.
Mr. Beckmann concluded by stating that he and his wife cannot believe their son is now a convict, suffering in prison, surviving amongst real criminals because he owned a computer that was tainted with several illegal images that he was charged with merely possessing. He is not a criminal, child pornographer, pedophile, predator or a sex offender, yet Arizona brands him for the rest of his life. Prosecutors are out for convictions and not necessarily the truth. Defense attorneys are greedy and his son was forced to enter a plea of five years because the mental and financial resources of the family were depleted. He asked for early release of those who are not a threat to society to give them a chance to live again.
Jeanne Thompson, representing self, Chandler, stated that she is the mother of an imprisoned sex offender and an activist. She stated that she is happy that Tonya Craft, who was facing 400 years in prison on 22 counts of child molestation, was acquitted on May 12, 2010, even though she is not claiming victory because of the scars left in the aftermath. In comparison, her son was advised not to go to trial because the risk was too great; if a computer expert proves child pornography images exist on someone’s computer, that person is sentenced to 10 years per image. Also, after indebting the family for $70,000, it was not possible to come up with another $20,000 to $50,000 to take the case to trial. Additionally, their son was suffering in
Sheriff Joe Arpaio’s inhumane jail and could not take any more abuse. The family endured five nightmare years fighting for her son and another five years while he has been in prison, yet their story will go on for the rest of their lives unless changes are made to the horrendous sex offender law. She asked the Members not to sign up for the Adam Walsh Act because adults, convicts and ex-convicts need to be protected and afforded constitutional rights.
Chairman Ash said this is an area of law that needs to be looked at that he has discussed with prosecutors and defense attorneys; there are many sad cases.
Tom Tilley, Free Courtney Bisbee Coalition, Scottsdale, said his daughter is in prison. Charges were pressed for 75 years and she was offered 44 days time served. He told her he would never admit to something he did not do and now he is paying the price for saying that because she had a chance to get out of prison. Also, she has to be registered as a sex offender, so there is something very wrong.
Camille Tilley, Free Courtney Bisbee Coalition, Scottsdale, stated that their daughter,
Courtney Bisbee, an honors graduate from the University of Southern Florida, came to Arizona with her husband, got a divorce and took a job at the Horizon High School in Paradise Valley. She has been in Perryville Prison for four-and-a-half years. She was arrested by a SWAT team at her home in Scottsdale in front of her four-year-old daughter because of a false allegation by a teenager. She said her daughter needs to be reunited with her daughter. She provided CDs, Freedom March for the Wrongfully Convicted [June 27, 2009] (Attachment 4) and Lawyers Anti-Andrew Thomas Protest [December 21, 2009] (Attachment 5).
Chairman Ash said there are serious problems; no system is perfect, but improvements need to be made.
Without objection, the meeting adjourned at 1:23 p.m.
Linda Taylor, Committee Secretary
May 27, 2010
(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)
HOUSE SELECT COMMITTEE ON SENTENCING
May 14, 2010