Bill Montgomery, migrant families, and the cruelty of his convictions...

PUENTE's sidewalk this weekend...

You know, people whose crimes were working, supporting their family, and contributing to another person's retirement account have not perpetrated the kind of harm on individuals or the community that we reserve higher felony designations, imprisonment and deportation for, so I don't understand how Montgomery's chosen course of action could possibly NOT be a racist abuse of prosecutorial discretion.

Lets get real: we took this region by brute force -  just as we keep it by inflicting violence against any who might challenge the reign of white supremacy here...By allowing Montgomery to do this unchallenged by all but those who are directly affected, we are permitting the undermining of all of our communities, ripping decent people away from their homes and loved ones for every reason except the pursuit of justice. 

Having massacred and kenneled nearly all the Indigenous people in the first few decades of our own invasion of the deep southwest, Arizona's war on Latinos is all about protecting the "right" of white settlers to continue to assert our dominance over this stolen land and its living creatures as if we were divinely entitled to do what we please with them. That is really at the core of what we still call "justice" in America - especially here -  and it makes me sick.


So, perpetrating racist violence in the name of law and order is what this is really all about, Bill.  I had hoped you'd be above the ego, politics, and defensive posturing alongside the other Good Old Boys here - it's such a shame to find you wallowing in the mud with Arpaio and his mad posse on this one...

Photo: Ivon Matamoros and her baby daughter

Arizona Prosecutions Bar Undocumented From Legalization

 New America Media

 News Report

 Valeria Fernández

 Posted: Mar 14, 2013

PHOENIX--Ivon Matamoros has been packing most of her baby daughter’s clothes and blankets to start a reluctant journey back to Mexico. Matamoros, 24, could be among hundreds of youth who qualify for a deportation reprieve under President Obama’s Deferred Action for Childhood Arrivals (DACA). But she didn’t apply.

Matamoros didn’t think she would qualify because she has a felony on her record -- for working with false documents as a cashier and buser at a Pei Wei chain restaurant.

An immigration judge told her this was a “crime of moral turpitude” and that she would have to leave. He gave her a date to do so, willingly: March 21.

“The judge said it reflected badly on my character,” said Matamoros. “If I didn’t have that felony, I would have been able to qualify for DACA.”

Groups Denounce Raids, Prosecutions

As discussions ramp up in Congress to come up with a federal comprehensive immigration reform bill, pro-immigrant groups and attorneys in Arizona are denouncing the raids and prosecutions of workers like Matamoros, which could hurt their chances of becoming documented residents.

Most immigration reform proposals exclude people with criminal records; millions of workers currently using false documents to work on the United States could lose out if they get arrested.

Matamoros was among hundreds of unauthorized workers in Maricopa County who ended up in deportation proceedings as a result of business worksite raids carried out by Maricopa County Sheriff Joe Arpaio. Workers in her situation are being charged with multiple counts of identity theft, typically a Class 4 felony, and offered plea bargains to a lower charge, such as “taking the identity of another,” a Class 6 violation.

“Maricopa County is the only county that is doing these raids. They don’t have to do these raids--that is immigration’s job,” said Carlos Garcia, director of Puente, a pro-immigrant and human rights organization in Phoenix.

Puente organized a march this week to protest Maricopa County Attorney Bill Montgomery for prosecuting these cases and charging undocumented workers with felonies that can lead to their deportation.

“Immigration reform starts at home,” Garcia stated. “If we don’t stop Arpaio and Bill Montgomery, the people from the 71 raids are never going to be able to obtain citizenship or any other legal status in the country because of the felonies.”

“Criminalizing the Community”

In February, the League of United Latin American Citizens (LULAC) and a group of immigration attorneys denounced Montgomery, alleging that he engages in discrimination for bringing charges against undocumented immigrants and essentially ensuring their deportation.

“This office will not engage in any sort of systematic effort to ensure people are deported from the U. S.,” said Montgomery in response during a press conference.

The county attorney acknowledged that U.S. Immigration and Customs Enforcement (ICE) provided his prosecutors their customary training on the types of charges that could have an immigration-related consequence for people.

Immigrant rights advocates argue that Montgomery could choose whether or not to offer plea deals that won’t have an immigration-related impact, but claim that he is deciding not to do so.

Montgomery, who has expressed support for SANE (Solution to Federal Immigration Reform), a comprehensive platform developed by the Real Arizona Coalition, said he is simply following the law.

But Garcia countered, “Bill Montgomery is speaking out of both sides of his mouth. On the one side he’s supporting the SANE platform and on the other, he is criminalizing the community. If he’s doing this, he is just as bad as Arpaio.”

Recently, Los Abogados Hispanic Bar Association asked Montgomery to explain what the group calls “unequal treatment” toward undocumented Latino workers.

In a letter to Montgomery, Los Abogados Board President Gaetano Testini wrote, “Over the last year, we have witnessed a marked change in the charges filed, the plea offers made and the negotiations entered into, with respect to this class of noncitizens.” The letter goes on to claim that Montgomery’s office “purposely provides plea offers that guarantee a noncitizen’s deportation from the United States and denies them their day in Immigration Court.”

Targeting Workers, Not Employers

The worksite raids began in 2008, after Arizona passed an employer-sanctions law meant to impose civil penalties on companies that knowingly hire undocumented workers. But Sheriff Arpaio and former County Attorney Andrew Thomas decided to use the new law to crack down on workers using false documents and charge them with identity theft.

Thomas said at the time that this was a strategy to ensure that a criminal record would keep undocumented immigrants from ever becoming U.S. citizens.

When Thomas –who was eventually disbarred in connection to alleged ethic violations--left office to run for the state’s attorney general, the interim county attorney Rick Romney discontinued the prosecutions.

Montgomery, though, began prosecuting people arrested in Arpaio’s sweeps, as soon as he took office, he said, in order to fight identity theft.

Although hundreds of workers were arrested in the 71 Maricopa County worksite raids, only three employers faced civil sanctions for knowingly hiring undocumented workers.

“I have to deal with these cases as I have them,” Montgomery said. “If I started seeking different resolutions just because I wanted to improve relationships with a particular part of the community, that would be the worst example of prosecutorial discretion I can imagine.”

When the raids started five years ago, many immigrant families didn’t know about the legal ramifications of pleading guilty to a Class 6 felony charge.

In some instances, undocumented immigrants who find themselves in deportation proceedings can apply for the cancellation of their removal, if they’ve been in the United States for more than 10 years and have a relative who is a U.S. citizen.

But that isn’t possible if they have a felony charge from working with false documents, explained immigration attorney Dori Zavala.

“When it comes to immigration, they say they don’t qualify because they have this crime of moral turpitude,” said Zavala.

Challenge to Felony Charges
Last year Zavala and her colleague, attorney Delia Salvatierra, decided to take their battle to the criminal justice courts by challenging these felony charges.

Zavala currently represents Miguel Venegas, an embroidery factory worker arrested with a dozen others on Feb. 8. Unlike Matamoros, Venegas now has a chance to fight against the felony charges.

“He is willing to do anything he can, because he’s been living here for 20 years,” said Venegas’ wife, Julia Ojeda, who joined the protest with the Puente group.

Ojeda said her husband was the main breadwinner for her and their three U.S.-born children.

“Sometimes the kids catch me off guard when they ask me when their dad will be released,” she said.

Zavala explained that the conditions in county jails for many of these workers, who have never been in a jail before, and their inability to afford an attorney often deter them from asserting their innocence.

“I took the plea because I couldn’t be in that awful jail anymore,” said Matamoros. “I didn’t know what was going to happen later.”

Several immigration attorneys have told Matamoros that her case is a “lost cause,” she said. She has accepted that she’ll have to go back to Mexico and leave her husband, Luis, behind so that he can support the family.

Matamoros was arrested on March 4, 2011, the day before her wedding was supposed to take place. She was finally able to get married four months later when she was released after paying bail of over $12,000—all of their savings.

Arguing to Stop Deportation
As an attorney, Zavala said immigrants like Matamoros have few options once an immigration judge orders the person’s voluntary removal.

But Zavala argues that ICE should grant people affected by these immigration sweeps a stay of their deportation, considering that the Department of Justice (DOJ) is suing the sheriff for alleged racial profiling involving traffic stops and worksite raids.

In its December 2011 findings, DOJ said the Criminal Employment Squad (CES) from the sheriff’s office “routinely raid businesses in a manner that harms innocent Latino workers.”

DOJ found, “Specifically, CES's deputies typically detain and investigate the immigration status of all employees at a raided worksite, whether or not the employees are listed in the warrant authorizing the raid.”

Zavala argues, “ICE should say any convictions coming from that should be considered differently.”

Matamoros is worried about returning to a country she hasn’t been in for almost a decade.
She worries about the violence in Mexico and about the type of health care her American daughter will get.

She wishes she’d had a chance to continue her education, rather than having to go to work.

If she’d gone to school instead of working, she wouldn’t have been arrested and charged with using false documents -- a felony that prevents her from being eligible for DACA now or any kind of regularization of her status in the future.

“We were just working to get ahead,” she said. “Families are being separated every day because of this.”

Arpaio's Deaths in Custody: Stealing gifts from God.

 The wrongful death of Deborah Braillard (Braillard v. Maricopa County, et al)is going to a jury trial tomorrow at the Sandra Day O'Connor Federal Courthouse in Phoenix.

Here's what ABC News most recently has had to say:

http://abcnews.go.com/US/video/arizona-womans-jail-death-leads-to-lawsuit-17209730

Here's my original post, with the article from the Phoenix New Times below.

 4th Avenue Jail, Phoenix

--------from Arizona Prison Watch (December 11, 2010)-----------

Those citizens with their civil rights intact who flocked to Arizona to exploit cheap labor and avoid paying for public schools - not the families who migrated here from our south - are the people who endanger us the most. Increasingly, elections in this state are not exercises in democracy but acts of violence perpetrated on those of us whose voices don't count. If anyone plans to tamper with the constitution next year, it should be only to disenfranchise all the sadistic, delusional voters who support the likes of Joe Arpaio, applauding his stubborn refusal to provide health care to prisoners, his misogynistic policies and underwear, and his abusive staff.

It's sad how many of Arpaio's posse members seem to think of themselves as "Christians", you know - good ones, at that. They must have missed the part in the Bible about how Christ was a prisoner himself (as were Daniel, the Apostle Paul, and my own ancestor, Brigham Young - who would no doubt be treated as a sex offender today - even if never convicted). Would they entrust the care of their prophet, their Savior, or Mother Mary to the Maricopa County Sheriff - or even to the rest of the good Christians who voted for Sheriff Joe?

How about the care of their own mothers?

Investigative journalist Michael Lacey has written a lot of good pieces for the Phoenix New Times - this one should really bring home an award. I'm just giving you the beginning - follow the link for the rest, and take the extra time to view the depositions after you read. One prisoner testifies that she witnessed guards drag a "mentally challenged" women by her ankle, and begins to cry. Another one details the pains that the other criminals went to in order to try to keep Deborah Braillard alive and restore her to health themselves. Sadly, it's so often the case for people who are incarcerated that the most compassion they encounter as they are dying comes from their fellow prisoners. The last video in the series of depositions is this brief clip of Deborah's daughter describing the last days of her mother's life - on a ventilator and chained to a bed....
 

Good job, Sheriff Joe: that's really being "tough on crime." You can't clear your violent crimes so you vilify and brutalize whatever people you can take prisoner.
It's truly disturbing that your officers don't walk out on you en masse.

We have to figure out how to take back the keys to our jails from Arpaio and his crew before they kill some other little girl's mom or grandma, or someone's else's child. This is not an isolated incident - it's evidence of the criminal practices and patterns of the MCSO and Sheriff Joe that both shame and harm us all. We can't afford two more years.

Finally, remember, dear lawmakers and lawmen: when you deprive the people of meaningful mechanisms to participate in our government peacefully - all the while bludgeoning us and our communities with your rights to profit and your penchant for prisons - you not only risk your re-election, you tempt your fates. You Tea Party tyrants are the ones who will spark a real revolution that can't be contained by your lies and legislation, or by your badges and guns.

That's not a threat, by the way - just a warning. It's all I can see coming of your egocentricity, bigotry, self-righteousness, and hate.

--------------------from the Phoenix New Times----------------------

What's Mom Worth? When a Woman Became Deathly Ill in Sheriff Joe Arpaio's Jail, Guards and Nurses Ignored Her Agony...

by Michael Lacey

December 9, 2010

Deborah Braillard, mother
(1991)

Mom taught me to sew.

And I' m going to teach my own baby, Jennylee. Eventually.

Jennylee is a quick study for a 6-year-old.

She watches as I sew her Minnie Mouse costume. She is double-twice excited, though honestly, I think I like Halloween as much as she does, even if it is a gloomy time of year.

Come, sit here, Pumpkin, and watch now how I pin the paper pattern here on the cloth. You see that, sweetie? You cut this out while I trim the red polka dots for your bow.

Done.

You take a good look at these pieces and try to guess where they'll go. Mommy will be right back.

As mother and daughter work inside their little trailer, outside, slate-stained cumulonimbus clouds menace, gray anvil domes await the strike.

Deborah ducks, briefly, into the tiny, plywood-framed bathroom for a little pick-me-up. When she emerges, the sweetness of this moment with Jennylee does not escape her notice.

But lightning in the darkness overcomes it.

Deborah shivers in spite of herself.

Hey there, Pumpkin, here's the last part.

I'll just straight-stitch the seams, roll the fabric to make a hem, and secure the bow with a whip-stitch.

Let me iron up the white apron and spray it with starch to give it a little oomph.

You look perfect.

Wait! Wait! . . . Here, a little mascara, we'll make a black dot for your nose and whiskers. Hold still now, a little lipstick.

Okay, let's walk over to the community center.

Grandma will meet us there.

Jennylee, if you aren't the best mouse ever . . .

Jennylee Braillard, daughter
(2010 interviews)

"Just about my first memory of my mom was the Minnie Mouse costume she made me at Gold Bar, which is where you can hook up your trailer just outside Monroe, Washington.

"I won first place that Halloween. My prize was a six-pack of root beer."

As Jennylee speaks, her own infant daughter, Kaylynn, coos and looks around, a bow tied to her little, full-moon head.

"My mom was always happy. She was nurturing, caring. She was my mom."

Her mother's ashes sit in a container in Jennylee's home in west Phoenix. The dust is such a small amount inside a little vessel; you'd hardly believe that someone's remains could amount to so little.

It is a fact that Deborah Braillard did not always make good choices.

She died an agonizing death in a diabetic coma that would wring the life out of her over three weeks that seemed without end.

The bigger truth is that she was hurried on her way.

Deborah Braillard's passing is never far from Jennylee's thoughts; after all, she watched the worst of it.

"I was terrified to open the plastic bag with her ashes. I put mom in a big jewelry box. I think about taking her back to Gold Bar. That's where my grandmother and great grandmother are buried. It's been in the family forever. There are nature trails there . . .

"But I worry if something happens to my uncle who lives there [what would happen to Mom]."

Consider: In May 2010, researchers at the University of Wisconsin find that, in stressful situations, cortisol levels in girls soar. But for many of the young women, simply hearing their mother's voice is enough to wash away the anxiety, replacing the stress hormone with feelings of love.

Men have no such relief.

What happens between a mother and daughter comes from God.

Tamela Harper, inmate

(2007 deposition)


Tamela Harper is detained in Sheriff Joe Arpaio's jail when they put Deborah Braillard into her cell in January 2005.

"She was unconscious [on the evening of the 2nd]. She wasn't hardly there. She walked back to her bunk, and that was the last time I saw that lady walking. People were helping her. She was throwing up constantly.

[Next day] that's when she started moaning and groaning and throwing up. She was basically unconscious at the time. She couldn't speak. She couldn't eat. The officers kept saying she was kicking heroin.

"She defecated on herself several times. There was no help for her. We kept telling the officers, you need to help her."

Brenda Tomanini, inmate

(2007 deposition)


Deborah Braillard threw up on other inmates, from her bunk to theirs. No guards, no nurses. The inmates, and Deborah, were alone on the 3rd.

On the morning of the 4th, medical asked to have Braillard brought into the clinic. But trusties could not wake the unconscious Deborah. She was left vegetating.

"I couldn't get Ms. Braillard up. Couldn't do it. She wouldn't respond to me at all. I could tell that she was breathing, but I couldn't get a response out of her.

"It just freaked me out because I don't think in my experience . . . I don't think she had been on drugs."

But the guards in the jail say different.

"Don't worry about Deborah Braillard. She's getting what she deserves. She's coming off drugs," is how Tomiani remembers it.

The inmates understand the drill, says Tomanini.

Tomanini described a retarded inmate brutalized for her sass.

"It broke my heart. I had to put my head under my blankets, and I cried. It broke my heart to see something like that."

Tomanini's experience with the medical clinic underscores the sense of neglect.

"I got sick and I was running a fever, and I had put a tank order in — that's what they call it for medical. And two months went along, and I didn't get any better. I was waiting for medical to call me . . . You had to fight to get medical attention.

Consider: It was standard procedure to collapse on the floor in order to get medical attention. Otherwise you might well be ignored by an overwhelmed medical clinic. Inmates report that guards would actually instruct them to drop, to collapse. Only then would a call — man down! — go out to the nurses.

Deborah Braillard, mother


Do I think? I think not.

I am aware.

I am aware of the I-will-nots:

I will not see my granddaughter, Kaylynn, walk. I will not give her my finger to steady her early toddles. I will not go down a slide with her. I will not put a Band-Aid on her owie.

I will not get a chance to be a better grandmother than I was a mom. Ever.

Consider: Deputies find methamphetamine in Braillard's purse about midnight on January 1, 2005. She is with a small group of users whose car breaks down in a parking lot on the west side when officers happen upon them.

She is admitted into the jail about 2 a.m. on January 2. Though the entire prison is videotaped around the clock, the sheriff is unable to produce any film of Deborah's early custody.

Historically, when inmates are killed or injured, Sheriff Arpaio loses evidence and incriminating video surveillance or produces video so degraded it is unwatchable.

Almost a full day after her initial booking, Braillard is transferred from the intake jail downtown to the all-female Estrella jail in west Phoenix. For the next 60 hours, guards at Estrella assume, mistakenly, that her wretched condition is the result of her kicking drugs.

This lethal mistake is aided and abetted by a poultice of organizational neglect combined with personal insensitivity that overwhelms thin outbreaks of humanity...

(Go to the source to read the rest... then PLEASE contact the Maricopa County Attorney's Office and tell them you want these people criminally prosecuted to the fullest extent every time they neglect or abuse a prisoner. Only then will some of this stop.)

Prosecuting Innocence: The Scottsdale Police shooting of David Hulstedt

follow link to:

AUG 8, 2012: UPDATE on HULSTEDT v SCOTTSDALE 

Another victim of Scottsdale police violence has come to my attention this weekend, thanks to one of the local activists hot on the Scottsdale Police Department's tail, who posted the link to this guy's family's website to Facebook.

David has a psychiatric disability, according to court records, and was having a crisis at the time this all happened - they'll try to make that work against him, so don't let that keep you from supporting him. In fact, it makes it all the more imperative that the community embrace him and his family right now to assure that he's not further brutalized by the criminal justice system - at least, not without a world of witnesses. 

Let the following be a lesson to all who own a video camera - keep it out and use it whenever you see the police stop someone. You never know whose life you may save. If we're truly dedicated to fighting police brutality, the place to start would be to see him through the effort to criminally prosecute him after he filed suit against the bastards. 

If David or his family are out there and want some support from other folks who are fighting police and prison violence, let me know. My name is Peggy, my number is 480-580-6807

------this occurred in 2008. David's prosecution is on-going------ 

David Hulstedt: Victim of brutal misconduct by Scottsdale Police.

This is the story of David Hulstedt, the young man shot in the back as he walked away from officers Scottsdale, Arizona police officers on November 7, 2008. David, who was unarmed, and carrying his toddler, is now paralyzed. David's little daughter suffered a fractured skull when she fell to the ground. As widely reported in the media, Mr. Hulstedt was undergoing treatment for a mental health condition when he called 911 asking for help from the Arizona Governor. Instead of responding with calm and caring, a Scottsdale police dispatcher broadcast that there was a "crisis" at the residence, and that a little girl was crying in the background, and that his parents were trying to get the little girl away from David who was refusing to give back the baby.

That little girl was just David's daughter who was crying because she needed a new diaper.

The Inappropriate Police Response.

Within minutes, Scottsdale officers ordered David's parents out of the home. David repeatedly called his father, pleading for him to return to the house. His father asked to go back to the house but police would not let him. David also repeatedly called his brother, Eric. In the video to right, Eric explains that he asked police to let him go to his brother. Police refused. David’s father called his lawyer who tried to speak with David, until Police intervened and ordered him to stop.

As you'll hear and see through the video clips to the right, David's family urged the police to let them help David, but police refused. David said he would give his daughter to his brother. Time after time, the family made progress. But the police did everything the could to stop that progress, and even confiscated the cell phones being used by the family.  Police intentionally isolated David from the very support group that he needed. David was never armed. David never threatened police. David never threatened his family. Minutes after police took away David’s lifeline to his family, lawyer and minister, David in desperation allegedly told police: “If you don’t let my brother come inside, I’ll pile drive my daughter into the ground.” But David would not and did not do that. Over the next 20 minutes police negotiators told David that they were there to help him. They were not going to hurt him. They proclaimed themselves “professionals.” They guaranteed David that they would not hurt him. All he had to do was come out with his daughter.

He did.

The Shooting.

David walked outside the house and asked officers to back up. He wanted to go to his Dad. He wanted to go to the street to see his family, not knowing the family had been held in seclusion by Scottsdale Police. Four officers, staged immediately outside the front door, took a couple of steps back to give David some space.

Arizona police officers are trained to safely resolve problems with people in mental crisis by assigning one person to  calmly speak with the patient. Instead of following training, police yelled at David. He was given opposing commands to put up his hands, put down the baby. He was not told he was under arrest. Confused by the contradictory orders, David raised his daughter up over his head and began to walk to the street. He wanted to be with his family. David and the police negotiators wanted a peaceful resolution. As he walked to the street an officer armed with a military assault rifle yelled at him. From across the street another officer armed with an assault rifle joined in the chorus of shouts. David turned to go back to the safety of the home.

The two officers fired their military assault rifles striking David down after he took 3 to 4 steps back towards the home. He was immediately paralyzed and fell forward. David lost his grip on his daughter and she flew down hitting her head on the concrete front walkway. Police, unbelievably, then DRAGGED David's paralyzed body hundreds of yards over rocks and gravel, ripping through his skin, exposing bone. 

Police Claims.

Police  claimed that the baby was bleeding from her ear when David first walked out of the house. Police claimed they saw blood on the front of David’s shirt. Police claimed that the left side of David’s daughter’s face was deformed and there was blood mixed with mucous coming from her nose. Police claimed that the little girl slid down the front of David and fell from his knee. She fell, police claimed, on the gravel of the front yard. Police told the news media that blood was found inside of the house. Police told medical staff attending to both David and his daughter that David held the girl upside down and threatened to pile drive her into the ground causing police to shoot him. Police dragged David, paralyzed, more than 100 yards over rocks and rough terrain, ripping through his skin and exposing his kneecaps.

Police said David would be arrested when he recovered.  They asked the county prosecutor to charge David with kidnapping and child abuse.

 

Caught On Tape.

Police were unaware for almost two hours after the shooting that the family’s neighbor had videotaped the entire event, including David's attempt at surrender, and the shooting. There was no blood inside the house. There was no blood on the front of David’s shirt. His daughter was not bleeding from either of her ears. But because police told the hospital and Child Protective Services that the little girl was bleeding before David was shot, the little girl was subjected to full body scanning. That proved police fabricated their story. There was no evidence of abuse. 

David is a Victim.

Police have asked that David be criminally charged with aggravated assault, kidnapping and child abuse.  Scottsdale police department's claim that David injured his daughter inside the home was without a basis.  The former Maricopa County Medical Examiner commented that the daughter’s injury was consistent with being caused by falling to the concrete walkway.  The truth that she fell after her father was shot made its way into medical records, despite the false statements made by police officers.  And, the photographic evidence proves how she was injured.

David himself asked  the prosecutor’s office to tell a grand jury the facts, and asked that the two officers who shot him be charged.  Officers who were sworn to protect him, but instead fabricated a crisis situation, then shot him in the back multiple times, ripped skin from his knees -- clear to his bone --  left him paralyzed for life, then created a fictional account for the media about what happened.

Prosecuting police violence: MCAO falls short with Gerster, Keesee.

"Prosecute Police Violence"
Maricopa County Central Courthouse, Phoenix.
June 2011

I went to former Maricopa County Sheriff's detention officer Kevin Gerster's sentencing in Maricopa County Superior Court today. He entered a plea deal in August in which the prosecution offered him 6 months in county jail and two years of probation for all his crimes. Both the assaults were ruled as "non-dangerous, non-repetetive", too, which is bullshit. He broke one guy's jaw and five months later beat another prisoner repeatedly. Judge Bill Brotherton took his assaultive behavior and pre-meditated crime (giving a buddy the address of a former prisoner, which the buddy used to find and assault him) more seriously than the prosecutor's office, though, and sent him to jail for a year instead.


In arguing for the judge to follow the plea agreement recommendations, Gerster's attorney cited the mitigating circumstances that ultimately kept the guy from going to prison instead. He has has no prior record, considerable community and family support (two of his former colleagues were present), took responsibility for his actions (he actually reported these incidents to supervisors when they happened and they left him on the job caring for mentally ill prisoners). He won't ever try to work in law enforcement again, and is now driving a cab. She even tried to get his probation fees reduced due to them being a hardship because he has child support payments to meet (the judge wouldn't consider that until he's done with jail).


Gerster himself argued that he had been in a stressful job and was just "caught up in the moment" when he did what he did, and was sincerely remorseful that he had embarrassed his family and his employer (he said little - if anything - about regretting the harm he did to his victims - as well as to the public's trust.)


These excuses didn't go over so well with Brotherton, and Gerster received a stern lecture from him about how he had a higher standard of conduct to meet than non-public servants regardless of stress because of the power he wielded, especially since he was working with "vulnerable" prisoners in the mental health unit. Brotherton pointed out that all of Gerster's criminal actions resulted in people being injured, and that the tampering with criminal records charges involved pre-meditated criminal actions that hurt others. It's a wonder he didn't send him to prison, he was so articulate about why Gerster deserved more than just six months in jail.


But the guy has a young daughter and family members who have suffered through this prosecution and the public shame with him, which is unfortunate for them (his fault, not ours), and Brotherton seemed to really weigh the mitigating factors - some of which I'm sure I don't know about, like the supervisors failing to take action to remove him from his job when it was clear he couldn't handle it. That made me want to see them in court, too, not just Gerster.


I stayed to watch him be put into cuffs by his former colleague, but didn't get the sense of satisfaction that I thought I would from it - I'm still a prison abolitionist, after all, and it's uncomfortable arguing for prison for someone, even a bad cop. For all I know the guy is mentally ill and asked for treatment before he escalated to the level of assaulting vulnerable people. In any case the MCSO was negligent in ignoring his abusive conduct, and should take some responsibility too.


In the end here's what Gerster plead to:

Agg Assault on his first victim (the guy whose jaw he broke in June 2010): Class 6 felony. 2 years probation concurrent with 6 month jail term, and suspended prison sentence (he could face 2 years in prison if he violates his probation);

Agg Assault on his second victim (William Hughes, who has assaulted last November): Class 6 felony. 2 years probation concurrent with 1 year in county jail, and suspended prison sentence (could face two years on this, too);

Unauthorized access to the criminal database and release of information (I'm not sure exactly what this charge was called, but it's a class 1 misdemeanor, down from a felony). 1 year probation concurrent with other sentences; suspended prison sentence (again, this could be 2 years at the ADC if he violates his probation - though he'll be in jail all that year anyway).

I'm still disappointed with the county attorney's office on this - they could not have lost at trial because of the video evidence - the whole world witnessed these assaults on Youtube, so I don't know what their excuse is for being so soft on him, but I'm glad Brotherton wasn't. Just keep in mind folks, that if any of those prisoners were in a position to defend themselves and tried to, they'd be facing a ten year sentence for assault on a peace officer, so don't think I'm calling any of this justice. I wanted him to go to prison - just not bad enough to shout it at the judge.

More troubling to me is that the other assaultive officer caught on video, Alan Keesee, plead guilty to aggravated assault (a class 1 misdemeanor) last month and was sentenced to only 3 months of unsupervised probation. His judge was Gottsfield; the prosecutor of record was Ed Leiter. That's less of a punishment than a friend of mine got for disorderly conduct at a protest - she got 30 days in jail and a year probation. Even I'm facing six months in jail for refusing to vacate a city park - now that's ridiculous.

Finally, a reminder to folks that tomorrow (October 22) is National Day Against Police Brutality: there will be an action at the 4th Avenue Jail at 10am. Join us if you can.

Find the Phoenix New Times' report on this case here.

You can find updated Superior Court court records at this link.

Risking prison rape for graffiti fame: counter-revolutionary.

This was released today by the Maricopa County Attorney's office (they kicked my own felony down to 3 misdemeanors, apparently. I hope that's all I'm facing, anyway). This 18-year-old is on his way to prison, and he's bragging about being a "king".

King of what, exactly?

He has no idea what he's really facing if he ends up in an Arizona state prison. Guys who are masters at beating, raping and killing cocky youth like him - not writing on church walls - are running the yards. They're going to eat him alive in there - he'll be candy for them. That's why so many others are just killing themselves once they arrive.

I hope not all the young taggers out there are really this naive'...please respect our hoods and find a way to express yourselves legally, people. I get some of what you're doing, guys, but don't go to prison for this kind of shit. Come Occupy Phoenix or protest police brutality with us and just bring chalk - or a piece of cardboard with your paint. Teach me some new techniques - I learn a lot from real writers and artists. Think of it as a challenge....I dare you to drop your cans for one day. Then we'll talk revolution, if that's what you're really all about.

-----------------from the MCAO---------------------

Graffiti Tagger “Shaggy” Faces Criminal Damage Charges

PHOENIX, AZ (October 12, 2011) – A Maricopa County Grand Jury has charged Daniel Alexander Lopez (D.O.B. 5/13/1993) with one class 6 felony count of Aggravated Criminal Damage and one class 5 felony count of Criminal Damage for allegedly committing multiple acts of graffiti that defaced property and structures throughout the Phoenix metro area over a three year period. He is believed to be one of the most prolific graffiti vandals currently in Maricopa County.

“Graffiti is not a harmless form of creative expression. It’s a destructive crime that victimizes entire communities by creating blight and encouraging additional criminal activity,” said Maricopa County Attorney Bill Montgomery. “In conjunction with the diligent efforts of Phoenix Police and the Phoenix Graffiti Busters program, my office will continue to aggressively pursue graffiti vandals and hold them accountable for their destructive actions,” he added.

On May 10, 2011 Phoenix Police Officers spotted Lopez trespassing on State property near an onramp to State Route 51 at McDowell Road. This area is near multiple freeway overpasses that are frequently targeted by graffiti vandals. Lopez was found in possession of a tip to an aerosol spray paint can and had white paint on his hands that matched the paint on the spray tip. Officers also found fresh graffiti tags in white paint on structures near the location where Lopez was apprehended.

Lopez later admitted to investigators that he had been “tagging” throughout the Phoenix area since 2006 using the name “Shag,” “Shaggy” and “Shagone.” The current indictment lists more than 30 victims who suffered damages in excess of $5,500. Victims include Family Dollar Stores, Sears, Arizona Department of Transportation, New Hope in Christ Church, and multiple private citizens.

Lopez told investigators he was well aware of the risk he was taking by engaging in graffiti vandalism, adding that he had no plans to stop until he was caught. “If you become a King you will get caught eventually and that’s the risk you have to take,” he said.

Referrals of juvenile graffiti cases to the Maricopa County Attorney’s Office have spiked 46% in the last five years, while referrals of cases involving possession of graffiti tools have more than tripled. The County Attorney’s Office typically files formal charges on roughly 90% of criminal damage case submittals (ARS §13-1604), with resulting sentences ranging from probation to two years in prison or longer.

The indictment and information announced today is not evidence of guilt. Mr. Lopez is presumed innocent until proven guilty.

ACLU-AZ: Juvenile Diversion Works.

Below are excerpts from the new ACLU-AZ report this summer:

Protecting what works: Juvenile Diversion in Maricopa County.

Introduction

In 2010, four percent of Arizona’s youth, or 41,040 juveniles, received at least one delinquency referral to the juvenile justice system.1 About half of these youth had not had any previous contact with the justice system, and 66 percent were referred for misdemeanors or status offenses.2 Fortunately, the rate of juveniles referred to the justice system who are being diverted is on the rise. Diversion is a process by which juveniles can avoid formal court processing, and therefore, a delinquency record, by successfully completing one or more diversion “consequences.” The consequences can range from writing an apology to community service, counseling, or teen court. In 2010, 46% of the youth referred were diverted.3 Two thirds of the youth diverted had never been referred to the court before.4 More than 86% of these youth had one prior referral or less, and 83% were referred for non-felony offenses.5

The concept of diversion has been around since the early days of the juvenile justice system. It is based on evidence that processing youth offenders through the court system can do more harm than good. Indeed, court involvement for low-level offenders has been shown to be related to lower educational attainment, more limited employment prospects and higher rates of re-offending. By handling such cases outside of the formal system, courts and prosecutors can avoid exacerbating these effects and also reduce the strain on overloaded dockets.

In 1967, partly in response to concerns that processing youth through the formal system could lead to further delinquency, the President’s Commission on Law Enforcement and the Administration of Justice called on communities to establish local youth agencies or bureaus that could serve as an alternative to putting youths through court.6 The Commission’s recommendation led to a proliferation in diversion programs in the late 1960s and 1970s. Today, most diversion programs are no longer sustained by federal grants, but by state and local funding sources. As these budgets continue to get slashed, policymakers will undoubtedly face pressure to reduce the investment in good quality diversion programs and shift more of the cost onto the families of referred youth who may not be able to afford the cost. This would be a mistake. Diversion offers an important opportunity for many young people who, with limited intervention, need never return to the juvenile justice system. By investing in diversion, we not only increase the chance that these youth will succeed, but also save money over the long run and enhance public safety.

In 2010, following the announcement of some significant changes to the diversion program by the local county attorney’s office, the ACLU of Arizona undertook an investigation of juvenile diversion in Maricopa County. Maricopa County contains 60% of the state’s population and is home to the large metropolitan community of Phoenix.7 It handles just over half of the state’s juvenile referrals and an almost equal share of the diversion.8 As part of its investigation, the ACLU of Arizona examined data from the juvenile court, probation department and two private contractors that were retained by the Maricopa County Attorney’s Office (MCAO) to provide fee-based diversion services. The ACLU also interviewed court and probation department staff, juvenile defenders, a juvenile prosecutor, and representatives from the private companies. This paper presents the findings and recommendations of the investigation.

How Juvenile Diversion Works in Arizona

In Arizona, for cases processed through the 15 county juvenile courts, the authority to decide whether or not a case will be eligible for diversion rests with the prosecutor, or county attorney.9 However, the county attorney may designate certain offenses that are eligible for diversion, and those cases that fall within the criteria set by the county attorney may be handled directly by juvenile court probation officers assigned to diversion. Alternatively, the county attorney may refer diversion-eligible cases to an approved program in the community.10 Cities and towns can also establish their own diversion programs, but starting in 2009, those programs must also be pre-approved by the county attorney.11

Whether diversion is administered by the juvenile court or by a provider approved by the county attorney’s office, in order to participate, the juvenile must acknowledge responsibility for the offense.12 The juvenile must also complete each of the consequences imposed, including, where applicable, the payment of restitution to the victim.13 Participation in diversion cannot be used against the juvenile in any future proceeding.14 If the juvenile successfully completes diversion, the county attorney will not file any charges in court and the juvenile will be able to avoid a delinquency record.15

There are certain offenses that are always ineligible for diversion under Arizona law. For example, a juvenile that is referred for driving under the influence or related offenses will not be eligible for diversion.16 Chronic and violent felony offenders are also ineligible.17 In 2008, “dangerous offenses” involving the use or threatening exhibition of a deadly weapon or dangerous instrument were added to the list of ineligible offenses.18 And in 2009, lawmakers amended the law again to exclude juveniles referred for any alcohol or drug offense from diversion if they had participated in a diversion program twice in the preceding 24 months.19 Further, juveniles that are detained for any offense for more than 24 hours will be ineligible for diversion since a petition must be filed within that time period by law.20

Juvenile diversion programs are funded through a combination of state grants, county appropriations and fees collected from the families participating in diversion. Each year, the Administrative Office of the Courts of the Arizona Supreme Court (AOC) calculates a “per juvenile” reimbursement rate for the provision of diversion services. The juvenile courts then receive a grant based on the number of juveniles they serve through diversion. Courts are further required to assess parents a fee of $50 unless they can demonstrate an inability to pay.21


Recommendations

As a result of the ACLU of Arizona’s study, we make the following six recommendations:

1. Reduce disproportionate minority treatment in the juvenile justice system by increasing opportunities for minority youth to be diverted, including selection into restorative justice programs107 such as CJCs and Teen Courts. This will require a concerted effort to establish more CJC panels and Teen Courts in underserved neighborhoods with a high concentration of low-income and minority youth.

2. Ensure that diversion programs are financially accessible to youth. While it may make some sense to increase the “stake” that families have in diversion by charging a nominal fee, care should be taken to accommodate those families who may be unfairly precluded from diversion because they cannot afford to pay the fee. MCAO or fee-based diversion providers should charge families a maximum of $50 for diversion and a $25 victim fee and create a sliding scale fee structure for families who cannot afford to pay. They should modify their materials to inform families of this option. County officials should explore options for tapping into public or private funding to make this possible, or keep the programs in the probation department.

3. Reduce other barriers to diversion. The probation department should explore options for operating after hours to accommodate single and working parents, and increase the use of satellite offices. This can have a significant impact on a family’s ability to complete diversion. All diversion providers should consider locating programs in the community, so that juveniles can meet with providers and complete diversion consequences without leaving their own neighborhoods. Establishing such community-based, culturally competent services in local neighborhoods would be an important step to expanding access to diversion. Providers should also update the way they communicate with youth and not rely solely on letters. Promising communication methods include text messaging and email. Providers should also ensure that diversion services are available in Spanish and other languages.

4. Increase public awareness about diversion. Many families do not have enough information about the juvenile justice system to make informed decisions about whether or not to go through with diversion. The juvenile court and other key players should conduct outreach and public education to increase awareness about the benefits of diversion, both for the juvenile and for the community at large.

5. Increase offenses that are eligible for diversion. The last year has shown that offenses such as graffiti can be effectively tackled through diversion and need not result in
a juvenile court petition. Policymakers should experiment with additional offense categories to see if they can be effectively addressed through diversion.

6. Invest in more comprehensive data collection and reporting so that the effectiveness of program changes can be evaluated. The juvenile court currently has only one primary
researcher who is responsible for gathering and analyzing yearly data. Further, it is not clear whether the results of diversion are being captured across the board in a way that
is conducive to analysis; nor is there currently an attempt to reliably assess the reasons why juveniles do not complete diversion. More resources for data collection, reporting,
and analysis can save money by allowing policymakers to understand how program changes positively or negatively impact other aspects of the system.

Conclusion

The rate of juveniles being diverted in Arizona is on the rise. This is significant because diversion can offer swifter and more effective intervention for juveniles referred for a delinquency offense without the stigma and cost of a lengthy court process. Many young people who successfully complete diversion programs never return to the juvenile justice system. Indeed, research shows that juveniles who participate in diversion re-offend at lower rates than those who are processed through the court. It is imperative that we continue to invest in cost-saving juvenile diversion programs that help keep kids out of the court system and in school. Furthermore, the juvenile justice community can strengthen existing programs by increasing diversion opportunities for minority youth and ensuring that diversion remains financially accessible to low-income families.

Although there has been some progress made on the diversion front, the fact remains that too many kids are referred to the justice system for minor offenses in the first place. Misdemeanors and status offenses still make up 66% of referrals. In addition to maintaining and expanding upon diversion programs, members of the juvenile justice community should make the reduction of referrals for minor offenses a policy priority.

Bill Montgomery on Sentencing reform.

The Maricopa County Attorney, Bill Montgomery, recently submitted the following response to a piece on sentencing reform written originally for ASU's Cronkite News (republished by the Capitol Times) in May. His letter is comprehensive, which I appreciate - and his criticism of the case used to represent non-violent offenders was taken to heart by Cronkite News, who consequently edited it out of their final version of the article, which I've pasted after his commentary.



I disagree with many of Montgomery's conclusions - and question his data and sources - especially where he estimates how much money has theoretically been "saved" on crimes prevented by imposing longer sentences on offenders across categories. But I'll let him and the story that follows speak for themselves right now. Just don't take this post as an endorsement of Montgomery and the MCAO's positions - I'm still in Rep. Cecil Ash's corner on sentencing reform.



What I should note here, however, is that Montgomery was recently given kudos by the ACLU of Arizona for the MCAO's emphasis on diversion of juvenile offenders arrested for graffiti. Some may recall that Thomas was draconian in his efforts to criminalize and punish youth, and routinely ignored evidence-based practice in juvenile justice matters. The MCAO under Andrew Thomas also referred more youth to private vendors for diversion programs, which can be unaffordable to many families and force low-income youth down a criminalized path instead of promoting rehabilitation and community accountability. Montgomery's folks don't appear to be catering to the private punishment industry like Thomas' did (ask the ACLU-AZ for their new briefing paper, "Protecting What Works: Juvenile Diversion in Maricopa County" for more on that issue - it hasn't been posted to their site yet).

-----------------from the Capitol Times------------------

Setting the record straight on sentencing

by Bill Montgomery / Guest Opinion

Capitol Times

Published: July 11th, 2011

I am writing to correct a number of inaccuracies in the May 20 “special report” printed in your newspaper (“A push from the right: More conservatives joining fight to change sentencing guidelines”). I am sure the reporter’s intention was to present a thorough examination of this important topic, but her final product was extremely one-sided and lacking in several important facts. As the chief prosecutor for the 4 million residents of Maricopa County, I feel it is my duty to set the record straight.

The problems in this article begin with the characterization of Candita Gottsponer, the convicted felon featured in the opening of the report. She is described as someone “with a record for marijuana possession” who “didn’t expect to go to prison for her first DUI.” The impression most readers might have is that Gottsponer was given a lengthy prison sentence (23 months) for what seems like a mild offense.

In fact, a simple Internet search of publicly available court documents would have revealed that Gottsponer had eight criminal cases, five of which involved felony offenses, including misconduct involving a weapon, possession and use of a dangerous drug, credit card theft, involving a minor in a drug offense and failure to appear. The writer also fails to mention that Gottsponer’s first DUI was an aggravated felony offense — she was driving under the influence with children in the vehicle.

Gottsponer received a prison sentence not because her offenses were “non-violent” as the article mistakenly suggests, but because she committed multiple felony crimes — exactly the type of repeat criminal Arizona’s tough sentencing laws are designed to target. Further proof of the efficacy of her sentence comes from Gottsponer herself, who readily admits that prison afforded her the opportunity to get an education, turn her life around and become, in her words, “a good role model for her kids.” I applaud her change in attitude.

If anything, Gottsponer is a prime example of how well our current sentencing regime works.

The article goes on to suggest, with no objective supporting data, that Arizona has eliminated alternatives to incarceration such as fines and substance abuse treatment in favor of lengthy prison sentences. Exactly the opposite is true. In 2010 alone, more than 4,400 felons in Maricopa County have been offered diversion programs instead of prison, while defendants in some 6,200 drug cases were sent to substance abuse programs, not prison.

The common misconception, repeated throughout the article, is that a simple drug possession conviction in Arizona results in jail or prison time. Again, not true. The overwhelming majority of first-time felony drug possession cases result in probation. And under Proposition 200, with very limited exceptions, first and second-time drug possessors must be placed on probation and offered the opportunity of drug treatment. The indisputable fact is that a first time drug user has to work pretty hard to get into prison in Arizona.

Had the reporter relied on the actual numbers instead of generalities from various interest groups, she would have discovered that only 68 of the roughly 40,000 inmates in the Arizona Department of Corrections are there for possessing drugs — and most of those convicts pled their cases down from more serious offenses. All other drug offenders in our prisons are there for narcotics trafficking, a serious crime which no true conservative — or anyone with a true concern for public safety — would say should be treated lightly.

The article is also rife with distortions of Arizona’s sentencing statutes. Here’s just one example: “a bill signed by Gov. Jan Brewer made causing an accident 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.” Left out of this truncated description is any mention that the type of “accident” addressed in this statute is one which results in a death or serious physical injury. As a result, the reader is left to believe that you can go to jail for nine months or more for causing a simple fender bender on a suspended license.

I also take issue with the quantitative analysis underpinning many of the article’s assertions about the cost of our current sentencing regime. The budget for Arizona’s Department of Corrections, we are told, has risen from $41.4 million in fiscal 1979 to $721 million in fiscal 2000 (no effort is made to adjust those dollars for inflation, but let’s put that aside for the moment). Additionally, according to the article the number of inmates has increased “10 times over since the late 1970s, while the state’s population had only doubled.”

By themselves and without the proper context, these numbers appear to be excessively large. Yet a more responsible and complete analysis would have also looked at what Arizona’s presumably large investment in incarceration has yielded in the way of benefits. Nowhere in the article is there any mention of the huge reduction in crime the state has enjoyed over this roughly 30-year period. Such details, of course, would have provided the inconvenient and incontrovertible truth that our current incarceration policies have actually made Arizona a much safer place to live, work and raise a family.

In Maricopa County, with 65 percent of the state’s population, violent and property crimes have fallen nearly 29 percent (as the number of inmates rose 38 percent). Before comprehensive sentencing reform, Arizona was perpetually among the top three states in serious crime. By 2009 (the most recent reported year), we’re down to 15th. A decade ago, Phoenix was ranked the top city for auto theft. Today we’re down to 56th place. Many other types of crimes are also down significantly.

The financial impact of these declines is substantial (and also absent from the article’s analysis). Research data compiled by the Maricopa County Attorney’s Office and the Arizona Prosecuting Attorneys’ Advisory Council found that Arizona’s strengthened sentencing statutes have led to the incarceration of an estimated 3,100 additional offenders in Maricopa County since 2005 who would have otherwise not been sent to prison. These are largely repeat offenders who have been found to commit an average of just under one felony per month. With an average prison sentence of 33 months under Arizona’s truth-in-sentencing laws, that works out to roughly 98,038 additional crimes prevented in Maricopa County alone.

Assuming 90 percent of those deterred crimes (88,234) are property crimes with an average cost of $1,900 each, that works out to a savings of $167.7 million. Assuming the remaining 10 percent (9,804) are violent offenses, generally estimated to cost $20,000 each, that savings approaches $196 million. So, not only are we safer thanks to tougher sentencing, we’ve also saved a bundle — roughly $363.7 million.

And this is precisely the outcome proponents envisioned when they enacted tougher sentencing laws: fewer crimes, fewer crime victims, greater savings, and safer neighborhoods.

But wait, the reporter warns us, the number of inmates in Arizona continues to rise! Scary looking figures supposedly supporting this trend are offered as the article’s parting shot. But these miss the mark entirely. Yes, many people are going to prison — but more are actually coming out. In fact, over the past 11 months there’s actually been a net outflow of inmates. So images of an ever-expanding prison population are simply wrong.

Given the many inaccuracies throughout the report which I’ve cited, I’d like to respectfully ask that the Capitol Times revisit this topic and apply a more rigorous analysis of our sentencing laws, one informed by actual facts instead of opinions and generalities. There is a strong, substantiated argument that Arizona’s current sentencing regime has made our state safer and saved the taxpayers substantial amounts of money. Your readers deserve to hear it.

— Bill Montgomery is the Maricopa County attorney.

-------------------From Cronkite News-------------

More conservatives joining push to change sentencing guidelines

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.

Wednesday, May 18
By Rebekah Zemansky
Cronkite News

Arizona's prison population:

– 1970 : 1,672
– 1974 : 1,752
– 1980 : 3,480
– 1985 : 8,152
– 1990 : 13,699
– 1995 : 20,742
– 2000 : 26,510
– 2005 : 33,471
– 2010 : 40,508

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.

Origins

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.”

Conservative voices

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.’’

Trends

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?”