Editor’s Note: The introduction to this story has been corrected to remove a reference to a case that erroneously represented the issue of sentencing guidelines in Arizona. A corrective to the story is available here. The 21st paragraph of the story has been corrected to reflect that recently signed legislation involves accidents that cause serious injury or death. A corrective on that point is available here.
PHOENIX – Rep. Cecil Ash, a Republican representing a conservative district in Mesa, considers himself anything but soft on crime.
“When a person commits … an intentional violent felony there’s not much excuse for that,” he said.
But his five years as a deputy public defender in Maricopa County Superior Court helped make him question whether changing the way Arizona deals with non-violent criminals would offer an opportunity to save tax dollars and help those offenders turn their lives around. He pointed to lesser drug offenses and white-collar crimes as examples.
“There are only limited funds to go around, and it’s being used in the Department of Corrections,” Ash said. “If we are wasting money in some areas that could be better used in health care or education, then it has an impact.”
Since the late 1970s, state and federal lawmakers have reacted to rising crime and the illicit drug trade by mandating prison time for many non-violent offenses, ranging from driving under the influence to possession of small amounts of marijuana. Those sentencing guidelines also targeted repeat offenders regardless of whether their offenses were violent.
Advocates, generally offering a liberal perspective, have responded that eliminating the options of fines, work release, substance-abuse treatment and house arrest in favor of prison time can turn non-violent offenders into career criminals. Losing contact with their families, communities and jobs contributes to this, they argue.
As states face large budget deficits, calls for reforming sentencing for non-violent offenders also are coming increasingly from conservatives such as Ash who call prison costs unsustainable.
While Arizona’s population increased by 24.6 percent from 2001 to 2010, the population in state and private prisons rose 50.8 percent to 40,508. Bill Hart, a senior policy analyst at the nonpartisan Morrison Institute for Public Policy at Arizona State University, said laws requiring mandatory minimum and maximum sentences for a broadening range of non-violent offenses contributed to that.
“Incarceration has long been a growth industry in Arizona,” he said.
Before the push toward tougher sentences, nearly every federal and state system gave judges latitude on sentences and allowed parole boards to periodically review whether an offender should be released. Judges could consider factors such as marital status, employment and social class as well as the crime itself when determining how much, if any, time a defendant would face.
In the 1970s, concerns about variability in sentencing and rising crime rates prompted a bipartisan push, led by Sens. Ted Kennedy, D-Mass., and Strom Thurmond, R-S.C., that in the 1980s led to federal sentencing guidelines.
“It was strange bedfellows,” said Cassia Spohn, a professor in Arizona State University’s School of Criminology and Criminal Justice. “The conservatives argued that it’s a tough-on-crime control mechanism; the liberals argued that indeterminate sentences were unfair, that they were racially and ethnically disproportionate.”
The guidelines base sentences on the severity of the offense and the offender’s criminal history. It’s a complex formula that Spohn equates to lines intersecting on a grid.
Meanwhile, states added their own sentencing guidelines, with their own complex formulas, for offenses not covered by federal laws.
The results were mandatory minimum sentences, most often targeting drug-related crimes such as possession or trafficking but also applying to DUIs, crimes involving weapons and repeated offenses.
Hart, with the Morrison Institute, said Arizona has been a national leader in such laws.
“Incarceration is very much used here as a tool, and in fact Arizona has kind of a reputation nationwide as a fairly punitive corrections system, meaning a heavy emphasis on incarceration,” Hart said.
In 1978, Arizona adopted a criminal code laying out minimum, maximum and presumptive sentences for dozens of felonies. It included additional penalties for repeat offenders and those who commit crimes while on probation.
One provision, for example, calls for a parolee charged with a felony drug crime involving eight or more pounds of marijuana to face a life sentence and serve a minimum of 25 years on top of any other sentence.
Since then, lawmakers have regularly made changes, large and small, to that code, sometimes increasing sentences but also reclassifying offenses as more severe crimes, which has the effect of boosting penalties. This year, for example, a bill signed by Gov. Jan Brewer made causing an accident involving serious injury or death while driving with a suspended license a felony rather than a misdemeanor, raising the penalty from a maximum of 30 days in jail to a minimum of nine months behind bars.
In addition, Arizona established “three strikes” laws requiring judges to give extended prison terms to those convicted three times or more of violent or aggravated offenses. A so-called truth-in-sentencing law requires violent and non-violent offenders to serve at least 85 percent of their sentences before being eligible for parole.
Hart said such laws have boosted prison populations and rates of incarceration around the country.
“Arizona has been a leader even among these in its rates,” he said.
Spohn said that another outcome of the push for mandatory sentences was that power over criminal penalties shifted from judges to prosecutors, who decide which crimes carrying which mandatory minimum sentences defendants will face.
“We haven’t eliminated discretion in sentencing, we just moved it across the parking lot to the U.S. Attorney’s Office,” Spohn said, quoting a federal judge she interviewed for her research.
After 10 years on the Maricopa County Superior Court bench, Penny Willrich has become an advocate for amending sentencing guidelines for non-violent offenders.
“This is sort of a rough-and-ready state, and they have a sort of narrow and myopic view of criminal rehabilitation,” Willrich said. “Being soft on crime is a misnomer; any time you impose punishment on somebody, you’re not being soft on crime.”
She added: “I think we really have to work on getting rid of the misnomer so that people can get down to business of really evaluating whether the sentences that are there fit the crime.”
Last year, an Arizona Office of the Auditor General report on the Arizona Department of Corrections’ prison population and the associated costs noted that the number of inmates had increased 10 times over since the late 1970s while the state’s population had only doubled. To keep up with that growth, it said, the state would need to add 8,500 beds by 2017.
Until now, the state has addressed that growth by building more prisons, the report said. Lower-cost options for the future could include diverting more non-violent, low-risk offenders from prison or reducing their time in prison, report concluded, adding that state could look at expanding the use of alternatives to prison, such as house arrest.
Out of a total state budget of $8.9 billion going into the current fiscal year, which ends in June, $949 million was designated for the Department of Corrections. The department’s budget has risen from $41.4 million in fiscal 1979, just after Arizona’s new criminal code went into effect, $413 million in fiscal 1990 and $721 million in fiscal 2000.
It’s the costs associated with Arizona’s rising prison population that have conservatives such as Ash, the state representative, looking for alternatives for non-violent, low-risk offenders.
He authored seven bills this year that would have provided judges discretion to sentence certain non-violent offenders to alternatives to prison, reduced charges for certain non-violent offenses or reduced prison time for low-risk offenders.
“Some people are not malicious; they’ve just made mistakes,” Ash said.
One bill would have prevented underage girls arrested for prostitution from being charged with sex crimes. That change would allow judges to sentence those offenders to diversion programs and counseling rather than prison.
Another bill would have established a process allowing inmates with severe medical conditions to apply for parole if they aren’t serving life sentences or facing the death penalty, releasing the Department of Corrections from responsibility for their care.
Ash said such changes would take into account public safety, the need to rehabilitate inmates and fiscal responsibility.
“At some point you have to balance financial resources you have with what’s needed to be done, and it’s difficult when you just have limited resources,” he said.
However, Ash’s only bill dealing with the subject to reach committee was a measure that would have established a legislative committee to study sentencing guidelines. It won a unanimous endorsement from the House Judiciary Committee but didn’t reach the floor.
The Goldwater Institute, a private think tank dedicated to limited government and free markets, has included alternative sentences for non-violent offenders in its recommendations for reducing the state budget.
Byron Schlomach, director for the Institute’s Center for Economic Prosperity, said judges and juries should be allowed to look at whether options other than incarceration would allow low-risk offenders to earn money to pay restitution and help cover the cost of their supervision.
“Anything that’s cheaper than what we are spending on incarcerated individuals now – that’s just fiscal sense,” he said. “So why wouldn’t we do that, especially if there’s evidence, and there is, that it’s at least as effective as a deterrent on future crime as the current system is.”
Schlomach said he sees a “weird confluence” of liberal and conservative arguments on the subject.
“That just sounds all kinds of conservative to me, and it also sounds merciful to these other people who come from a different point of view,” he said.
Ash’s efforts have national support from organizations such as the Texas Public Policy Foundation, whose RightOnCrime project focuses on reviewing mandatory sentences. The project has gained support from national conservatives leaders such as Grover Norquist and Newt Gingrich.
Marc Levin, the foundation’s director of the Center for Effective Justice, said the states’ budget issues will persuade people who wouldn’t consider sentencing reform before to take a closer look at the issue.
“In the past, people were extremely reluctant to address it – they didn’t want to be accused of being soft on crime,” he said. “I think people have realized that need to be both tough and smart.”
Hart, with the Morrison Institute, said he sees many states reconsidering their stands on sentencing.
“There’s a realization across the country that states can no longer afford these enormous costs of incarceration,” he said. “There’s a lot of belief and, I think, a lot of evidence that this large-scale incarceration does not seem to have really worked very much in correcting people.”
A prosecutor’s view
Hart said deterrence, not rehabilitating criminals, was the goal of mandatory sentencing.
“The aim was really to take discretion away from judges who were perceived back then as being soft on crime and not harsh enough,” he said.
Hart said those opposed to changing the current system contend that non-violent offenders are a very small part of the equation.
A 2010 report by the Arizona Prosecuting Attorneys’ Advisory Council, produced in response to state budget concerns, said that violent and repeat offenders make up about 94 percent of the Arizona’s prison population. The report also noted Arizona’s crime rate dropped by 42.3 percent from 1995 to 2008.
“Their whole point of argument is, ‘No, we don’t have a lot of the wrong people in prison; the right people are in prison, even though there are so many,’” Hart said.
Maricopa County Attorney Bill Montgomery said he looks to crime rates to see what’s working.
“If we’re warehousing them, fewer crimes are being committed, and then other offenders who are out there on the streets don’t have the professionals teaching them what to do,” he said.
Montgomery added that there’s a lack of objective data on the effect of alternatives to prison sentences.
“And without being able to do that I would be very suspect of people trying to say, ‘Aha! Diversion reduces crime which reduces an inmate population,’” Montgomery said.
Ash’s bills faced legislative gatekeepers with tough-on-crime reputations. Rep. Eddie Farnsworth, R-Gilbert, chairman of the House Judiciary Committee, brought only one of Ash’s bills before the committee. The one bill that did wasn’t taken up afterward by the House Rules Committee, chaired by Rep. Jerry Weiers, R-Glendale.
Neither Farnsworth nor Weiers responded to repeated phone messages and e-mails.
Sen. Ron Gould, R-Lake Havasu City, chairman of the Senate Judiciary Committee, was quoted by Capitol Media Services as saying he wouldn’t hear such bills.
“Just because we’re in a budget crisis doesn’t necessarily mean that we need to let prisoners out of prison,’’ said Gould, who also didn’t respond to interview requests from Cronkite News Service. “It’s the basic function of government to punish evildoers.’’
Adam Gelb, director of the Public Safety Performance Project for the Pew Center on the States, said research shows that new ways of treating substance abuse and other underlying causes of criminal behavior can help reduce the chance that offenders will commit more crimes when released. That’s helping lawmakers in other states ask the right questions when it comes to alternatives to prison.
“Part of that is due to the budget situation, but it’s also in a large part due to recognition that there are more effective, less-expensive strategies,” Gelb said.
Levin, with the Texas Public Policy Foundation, said that this is a message conservatives can respond well to.
“They realize that the growth in government has been unsustainable, and the growth in the number of criminal laws – the number of people in prison – has just been one aspect of the enormous growth in government that we have to rein in,” he said.
Texas, for example, started programs in 2007 that allow more non-violent offenders into substance abuse programs combined with probation as an alternative to prison.
The Arizona Auditor General’s report also noted Mississippi had increased early releases for non-violent offenders, Florida had expanded house arrests and Georgia had allowed non-violent offenders to serve time during the day but be home at night.
Levin said that financial realities will force Arizona to take a hard look at following suit.
“We don’t want to just write a blank check for any other government program,” he said. “Why should we write a blank check for prisons?”