Build communities: NOT prisons OR jails!

 The AZ DOC only provides substance abuse treatment to 4% of prisoners a year, 

though, according to them, 75% of prisoners are committed to their care due to drug-related crimes.

We could just stop throwing people in prison for BS like prostitution, addiction, and mental illness, and we wouldn't need new prisons OR fatter jails. In fact, we could even start tearing some down - it's really astonishing how many people are in prison for smoking pot and selling blow jobs. Consider the waste of resources that represents, at over $20,000/year per prisoner - not to mention the violence we are doing to those people's lives for such petty crimes.

Unfortunately, the AZ DOC wouldn't be guaranteeing 90% occupancy if it wasn't for Arizona's mandatory minimums and "truth in sentencing" laws. The DOC director also has a lot of discretion to release people early that he seldom exercises - plenty of minimum security prisoners could be safely monitored in the community who he just won't facilitate more early release for.

It appears that the AZ DOC definitely prefers incarceration over correction, too, as only 4% of their prisoners are able to access any substance abuse treatment while in custody. That's problematic, given that the yards are flooded with heroin these days (devastating in light of the Hep C epidemic). For the most part, the state prisons are being pretty violently run by racialized politics and gangs. 

Even though 25% of their prisonrs are receiving some kind of mental health "treatment" (most often subtherapeutic levels of psychotropic drugs, by all appearances), treatment of the seriously mentally ill is being neglected, and many turn to street drugs to self-medicate When they get caught, they aren't placed in a dual diagnosis treatment program - they're thrown in the hole and lose their vistiation and phone calls with those who would otherwise help them stay sane. There they often begin to self-destruct...some guys actually set themselves on fire after too long in solitary, which is where most suicides occur.

All that's to say that if the AZ Judiciary really wants anyone to  stop using drugs or "get well", they'd better do everything they can to keep from sending them to our state prisons. And if the AZ public wants to save money on incarceration, its time we drop the mandatory minimums and truth-in-sentencing laws.

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Arizona sheriffs assail costs of private prisons

Officials: County jails cheaper option

By Craig Harris The Republic | azcentral.com  

Sat Jan 11, 2014 10:30 PM

 

Maricopa County Sheriff Joe Arpaio and other Arizona sheriffs’ offices say the state is needlessly spending money to move inmates to a new private prison when they could be held in county facilities for millions of dollars less per year.


Arpaio and sheriffs’ offices in Apache, Pinal, Cochise, Navajo and Santa Cruz counties said they would be willing to take Department of Corrections prisoners after The Arizona Republic reported that the state this month would begin housing inmates at the privately held Red Rock Correctional Center near Eloy. The state guarantees owner Corrections Corporation of America a profit with an occupancy rate of at least 90 percent at the new facility.

CCA has become the third private-prison operator for Corrections, which has received direction from the Republican-controlled Legislature and Gov. Jan Brewer to use private facilities to ease prison overcrowding.
But in the continuing debate over private prisons, critics — including Arpaio and other sheriffs — say those facilities are a waste of state resources and funnel tax dollars into the bottom line of companies that pay their top executives seven figures.

“The state should be supporting the counties and not try competing against them,” said Brannon Eager, the Apache County sheriff’s chief deputy. “It’s obvious the existing sheriffs’ jails could house inmates cheaper than private prisons.”

Arpaio says he has plenty of room in Tent City, but he wouldn’t make available individual TVs for inmates, which is one of the state’s requirements.

“I’m totally against private prisons. Private prisons want to make money. If they could get more people in by giving them ice cream and cake, they would do it,” Arpaio said.

The six sheriffs said they could provide at least 1,750 beds, which exceeds the number of beds the state has contracted with CCA in Eloy. But the Department of Corrections said it’s not interested in spreading its inmates in county jails around Arizona.

Corrections spokesman Doug Nick said it’s unlikely jails can provide the same kind of education and rehabilitation programs. He also said all able- bodied inmates have work opportunities in state and private prisons.

“Our job is to incarcerate prisoners. If we can work with the counties, we will, but we need to manage our inmate population with our programs,” Nick said. “A county sheriff’s office is not designed to be a mini Department of Corrections. They have mostly people who have not been convicted of a crime as they are going through a trial process.”

A spokesman for Nashville-based CCA agreed.

“Long-term felons have much different needs than those in a jail,” said Steve Owen. “They are talking about three hots (meals) and a cot. ... But those offenders are not going to get the same level of rehabilitation.”

But Navajo County Sheriff K.C. Clark said Corrections wasn’t providing jobs for 50 state inmates before they were housed in Holbrook for about seven months. Clark said he put the inmates to work. He also complied with the Corrections mandate that state inmates be offered individual TVs in their cells with cable access.

“They have more rights than a county inmate,” Clark said.

Clark said he was especially upset when those state inmates were transferred from his jail late last month, just days before the new Red Rock facility opened, taking away a revenue source. Nick confirmed that the state inmates were taken from Navajo County because Red Rock opened, freeing space for hundreds of prisoners within Corrections’ facilities.

“Now that we have capacity at Red Rock, we no longer needed the temporary contract,” Nick said.

The sheriff said the state is paying CCA 32 percent more than the $49.44 daily per-inmate rate that Navajo County received.

“The bottom line is when the state says it needs more money, then why is it paying more?” Clark said. “It’s wrong.”

Nick countered that the cost at Red Rock is higher because of the education, work and substance-abuse programs being offered there.

But Arpaio said counties can provide those programs at less cost.

“I have the best drug-prevention program in the United States, and I have a high school. My rehabilitation program I will stack with DOC or anyone around the country,” Arpaio said.

Easing overcrowding

The Legislature expanded the state’s reliance on private prisons in August 2012, when Corrections awarded a contract to CCA to house up to 1,000 medium-security inmates at Red Rock.

At the end of last year, Corrections said there were about 5,000 inmates sleeping in temporary beds in state facilities.

The state, within six weeks, plans to have at least 500 prisoners at Red Rock. Corrections Director Charles Ryan said he will seek legislative approval to fill the remaining 500 beds in 2014 instead of next year, as previously planned, to alleviate overcrowding elsewhere in the system.

CCA is the third private-prison operator for Arizona, which has about one-sixth of its 40,938-inmate population in private prisons across the state. The other operators are the GEO Group Inc. and Management & Training Corp.

CCA and GEO are publicly traded companies, required by law to disclose the compensation of executives. Management & Training Corp. is privately held and does not release such information.

Damon Hininger, chief executive of CCA, has a total annual compensation of $2.7 million, while George Zoley, chairman and chief executive of GEO, has a total annual compensation of $5.9 million.

Corrections guarantees occupancy rates of 90 to 100 percent for all private prisons, meaning it will transfer inmates out of state-operated facilities and into the private prisons until the minimum occupancy is met.

Arizona taxpayers, for the fiscal year that ended June 30, 2013, spent $133.8 million on five private minimum-security prison facilities and two medium-security prisons. Taxpayers spent $816.9 million on nine public- prison complexes and three specialized units that house minimum- to maximum-security inmates.

Cost savings claimed

Gov. Brewer’s office and some lawmakers say private prisons save taxpayers money by having lower operating costs. They add that the companies cover the up-front construction costs for the facilities, which are turned over to the state after 20 years.

“It’s not exactly breaking news that the private sector can provide public services in a faster and less-expensive way than a government bureaucracy,” said Andrew Wilder, Brewer’s spokesman. “A private correctional facility provides a good option for the state. The state can quickly obtain long-term (private) correctional beds, programming and security that the jails don’t have.”

But private prisons house only minimum- and medium-security inmates who typically are healthy and don’t have mental-health problems, which lowers their health-care costs. The state, meanwhile, has higher health-care costs because it houses some inmates with serious and chronic health-care problems.

When the health costs are equitably factored, the state’s costs at medium- security prisons are lower than private prisons, according to a Corrections analysis.

Clark questioned how valuable a private prison will be for the state after 20 years of operation.


“Those facilities are running 24 hours a day, seven days a week. The infrastructure will break down and the technology will change,” the sheriff said.

A Corrections study found it was less expensive in 2008, 2009 and 2010 to house inmates in state-run, medium- security facilities compared with similar in-state private facilities.

As critics of private prisons used those statistics to show it was less costly for the state to house inmates, the Republican-controlled Legislature and Brewer in 2012 repealed the law that required the Corrections Department to conduct such a study.

Rep. John Kavanagh, an influential Republican legislator from Fountain Hills, said the studies were stopped because they were misleading.

Clark and sheriffs from four other counties said they could provide similar services to the state for less than the $65.43 daily rate per inmate being paid to CCA for prisoners at Red Rock. Pinal County Sheriff Paul Babeu said his county’s cost would be higher because of additional programming requirements for state inmates.

Sheriffs from Coconino, Graham, Gila, Greenlee, Pima, Yavapai and Yuma counties either do not have space or are not interested in housing state inmates. The La Paz and Mohave County sheriffs could not be reached.

“It’s a whole different beast when you are dealing with people who come from prison,” said Yuma County Sheriff Leon Wilmot. “We don’t have the programs the DOC does nor do we have the resources and time to do that.”

Reach the reporter at craig.harris@arizonarepublic.com or 602-444-8478.

Truth-in-Sentencing, Pleas, and AZ's Judiciary: Time for a change.

Good report out by Human Rights Watch this past week about mandatory minimum sentencing and the damage of the whole plea bargain process in America. The report looks mostly at federal guidelines, but has implications for us at the state level. Where most states are decreasing both prison populations and crime, Arizona is just growing our prison capacity to pack more people away. We desperately need to do something different, soon. We can't even provide pillows for all the prisoners, much less safe quarters or decent medical care.

Judges in this state should know better than almost anyone what a crime it is to have these mandatory minimum sentencing guidelines - Arizona's are some of the worst, as are the plea bargains. People are punished brutally by prosecutorial excess and sentencing guidelines for taking things to trial that they may get probation on if they pled guilty - those tend to be the people who won't compromise because they adhere to their innocence - and they get the worst sentences when found guilty. 

The judiciary, therefore, should really be leading this charge - why are they so silent, then, instead of lining up to give testimony to the legislature? They only compound their complicity in something they know is wrong the longer they fail to speak out. Meanwhile, peoples' lives are laid to waste. 

Andrew Thomas - the Maricopa County attorney who was disbarred a couple years ago for abuse of power, among other things - boasts over 200,000 felony convictions during his reign alone - many of which were plea bargains, and some of which were witch hunts of innocent people, like Lisa Randall.   But Thomas was really only punished when he went after the rich and poweerful, not the ordinary people. The politicans he persecuted got huge settlements for defamation, while the ordinary citizens who got caught in his prosectuion machine - like Courtney Bisbee - remain imprisoned and fighting for justice.

Here is the Arizona Supreme Court: ask them why they haven't assumed leadership in advocating for an end to mandatory minimums in Arizona. Seriously - maybe if they get enough letters they will realize that promoting sound, evidence-based sentencing policies is responsible judicial leadership, while rubber-stamping injustice is a betrayal of what they are supposed to be all about. Contact them through the court clerk on the fourth floor of the Arizona State Courts Building.

By Phone:  602 - 452 - 3396
By Email:   scclerk@courts.az.gov

Arizona Supreme Court
1501 W. Washington, Suite 402, 
Phoenix, AZ  85007-3232  

And here are the judges of the Maricopa County Superior Court - hold them accountable too. 

Maricopa County Superior Court

125 W. Washington

Phoenix, AZ 85003

(602) 506-3204

Tell them all that the "truth in sentencing" is that way too many decent, salvageable human beings are languishing and dying in Arizona's prisons under sentencing guidelines designed to profit political careers and privateers, not promote public safety or justice.  Tell our judiciary to show some courage and take the legislature to task over it this coming session. Evidence-based sentencing is where it's at thee days -we need legislation that works for the people, not just for the politicians. We're building and filling new prisons, when we should be emptying them.

It's time for a change, Arizona. Let's not lag behind the rest of the country on this one - c'mon and step out in front, Arizona's Honorables, and do the right thing. You are reponsible for our bulging prisons, too...

 

"Truth in Sentencing: Incarceration is Violence."

 Maricopa County C0urt Complex, Phoenix (11/01/13)

---------------------

HUMAN RIGHTS WATCH (December 1, 2013)
An Offer You Can't Refuse: Mandatory Minimums in America
(FULL REPORT link)

Summary

Darlene Eckles let her drug-dealing brother operate from her house for six months and helped count his money. Federal prosecutors offered to let her plea to a 10-year sentence; she rejected the offer and is now serving an almost 20-year sentence.

Federal prosecutors offered to let Patricio Paladin plead in return for a 20-year sentence for cocaine distribution. He refused to plead and is now serving a sentence of life without parole.

Weldon Angelos was offered a plea of 15 years for marijuana distribution and gun possession. He refused the plea and is now serving a 55-year sentence.

Eckles, Paladin, and Angelos were convicted of federal drug and gun offenses after rejecting plea offers and opting instead to go to trial. Prosecutors sought their remarkably long sentences—at least double the time they would have served had they agreed to plead—not only for their crimes,  but for refusing to plead guilty on the prosecutors’ terms.

***

The right to trial lies at the heart of America’s criminal justice system. Yet trials have become all too rare in the United States because nine out of ten federal and state criminal defendants now end their cases by pleading guilty.

There is nothing inherently wrong with resolving cases through guilty pleas—it reduces the many burdens of trial preparation and the trial itself on prosecutors, defendants, judges, and witnesses. But in the US plea bargaining system, many federal prosecutors strong-arm defendants by offering them shorter prison terms if they plead guilty, and threatening them if they go to trial with sentences that, in the words of Judge John Gleeson of the Southern District of New York, can be “so excessively severe, they take your breath away.”[1] Such coercive plea bargaining tactics abound in state and federal criminal cases, including federal drug cases, the focus of this report.

Plea bargaining means higher sentences for defendants who go to trial. In 2012, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months).

The threat of higher sentences puts “enormous pressure [on defendants] to plead,” Mary Pat Brown, a former federal prosecutor and senior official in the Justice Department told us.[2] So much so that plea agreements, once a choice to consider, have for all intents and purposes become an offer drug defendants cannot afford to refuse. Only three percent of federal drug defendants go to trial. Human Rights Watch believes this historically low rate of trials reflects an unbalanced and unhealthy criminal justice system.

In this report, Human Rights Watch presents cases that illustrate the unjust sentences that result from a dangerous combination of unfettered prosecutorial power and egregiously severe sentencing laws. We also present new data developed for the report that documents the extent of the “trial penalty”— the higher sentences that defendants who go to trial incur compared to what they would receive if they plead guilty. In essence, it is the price prosecutors make defendants pay for exercising their right to trial.

US constitutional jurisprudence offers scant protection from prosecutors who are willing to pressure defendants into pleading and punish those who insist on going to trial. Courts do not view defendants as unconstitutionally coerced to forego their right to a trial if they plead guilty to avoid a staggering sentence. Nor do they consider defendants to have been vindictively—that is, unconstitutionally—punished for exercising their right to trial when prosecutors make good on their threats to seek much higher mandatory penalties for them because they refused to plead. Finally, even when courts agree that prosecutors have sought egregiously long mandatory sentences for drug offenses, they will not rule the sentences so disproportionate as to be unconstitutionally cruel.

Prosecutorial Power and Mandatory Sentences

Prosecutors have discretion, largely unreviewable by judges, as to what charges to bring, what promises or threats to make in plea bargaining, and whether to carry out those threats if the defendant does not plead.

While all prosecutors are in a powerful position vis-a-vis criminal defendants, the power of federal prosecutors in drug cases is strengthened by mandatory sentencing laws that curtail the judiciary’s historic function of ensuring the punishment fits the crime. When prosecutors choose to pursue charges carrying mandatory penalties and the defendant is convicted, judges must impose the sentences. Prosecutors, in effect, sentence convicted defendants by the charges they bring.

Prosecutors typically charge drug defendants with offenses carrying mandatory minimum sentences. Mandatory minimum drug sentences are keyed to the weight of the drugs involved in the offense (and the weight of filler substances, like cornstarch, used to dilute the drug). For example, the mandatory minimum sentence for dealing 5 kilograms of cocaine is 10 years and the maximum is life, regardless of the defendant’s role or culpability. The sentence imposed upon conviction will usually be higher than the minimum, as judges—taking their cue from the federal sentencing guidelines—take into account the actual amount of drugs involved in the crime, the defendant’s criminal history, and other aggravating and mitigating factors.

In fiscal year 2012, 60 percent of convicted federal drug defendants were convicted of offenses carrying mandatory minimum sentences.[3] They often faced sentences that many observers would consider disproportionate to their crime. An addict who sells drugs to support his habit can get a 10-year sentence. Someone hired to drive a box of drugs across town looks at the same minimum sentence as a major trafficker caught with the box. A defendant involved in a multi-member drug conspiracy can face a sentence based on the amount of drugs handled by all the co-conspirators, even if the defendant had only a minor role and personally distributed only a small amount of drugs or none at all.

Drug defendants have only three ways to avoid mandatory sentences: they can go to trial and hope for an acquittal, even though nine out of ten defendants who take their chances at trial are convicted; they may (if they are a low-level, nonviolent drug offender with scant criminal history) qualify for the limited statutory safety valve that permits judges to sentence them below the applicable mandatory sentences if they are convicted—although most defendants do not qualify; and they can plead guilty.

Most prosecutors will offer drug defendants some sort of plea agreement that reduces their sentence, sometimes substantially. Indeed, they file charges carrying high sentences fully expecting defendants to plead guilty. To secure the plea, prosecutors may then offer to lessen the charges, they may offer to reduce the ones that do not carry mandatory sentences, to stipulate to sentencing factors that lower the sentencing range under the sentencing guidelines or, at the very least, to support a reduced sentence based on the defendant’s willingness to accept responsibility for the offense, i.e., to plead guilty. Prosecutors may also agree to file a motion with the court to permit the judge to sentence below the mandatory sentences when the defendant has provided substantial assistance to the government’s efforts to prosecute others.

But prosecutors also threaten to increase defendants’ sentences if they refuse to plead. Perhaps their most powerful threats are based on two statutory sentencing provisions that can dramatically increase a drug defendant’s sentence. Under 21 U.S.C. §841(b)(1) prior felony drug convictions can dramatically increase a mandatory minimum drug sentence. Under 18 U.S.C. §924(c) prosecutors can file charges that dramatically increase a defendant’s sentence if a gun was involved in the drug offense. Prosecutors will threaten to pursue these additional penalties unless the defendant pleads guilty – and they make good on those threats.

Prior Convictions

Sentencing enhancements based on prior drug convictions are triggered only if prosecutors choose to file a prior felony information with the court. If a prosecutor decides to notify the court of one prior conviction, the defendant’s sentence will be doubled. If the prosecutor decides to notify the court of two prior convictions for a defendant facing a 10-year mandatory minimum sentence on the current offense, the sentence increases to life—and there is no parole in the federal system.

Many defendants plead when faced with the threat of such sentences. Early in 2013, for example, Lulzim Kupa refused to plead even though he was looking at a mandatory minimum of 10 years for distributing cocaine. A few weeks before the scheduled trial date, the government filed a prior felony information providing notice of two prior marijuana convictions. It then offered to withdraw the notice (as well as the original 10-year mandatory minimum) if Kupa would plead to a lower charge. He did, and avoided the prospect of life in prison—eventually receiving a sentence of 11 years.[4]

Involvement of Weapons

If a weapon was involved in a drug offense, prosecutors will press the defendant to plead by raising the specter of consecutive sentences under 18 U.S.C §924(c). The first §924(c) conviction imposes a mandatory five-year sentence consecutive to the sentence imposed for the underlying drug crime; second and subsequent convictions each carry 25-year consecutive sentences—resulting in grotesquely long sentences for drug defendants. In 2004 for example, Marnail Washington, a 22-year-old with no criminal history, was sentenced to 40 years after conviction of possession with intent to distribute crack cocaine and two §924(c) counts based on possessing, but not using, guns in connection with his drug offenses. That is, 30 years of his 40-year sentence were on gun counts.

It is entirely up to prosecutors whether to pursue these increased penalties against an eligible defendant. If they do and the defendant is convicted, the penalties are mandatory and judges must impose them. In one case in 2002, Judge Paul Cassell was so distressed at his powerlessness to avoid imposing an unduly harsh sentence on a young marijuana dealer (55 years for convictions on three §924(c) counts) that in his sentencing memorandum he called on President George W. Bush to commute the sentence. The president did not do so. And in a 2010 case, Judge Kiyo Masumoto said that she thought a 20-year sentence was “quite more than necessary” in the case of Tyquan Midyett, a low-level drug dealer who refused a 10-year plea and the prosecutors then doubled his sentence by filing a prior felony §851 information. Still, the judge said she did “not have discretion under the law to consider a lesser sentence.”[5]

Punishment to Fit the Crime?

Under well-established criminal justice principles, reflected in US and international human rights law, convicted criminal offenders should receive a punishment commensurate with their crime and culpability and no longer than necessary to serve the legitimate purposes of punishment. Those purposes include holding offenders accountable for their wrongdoing, protecting the public by keeping them in prison, deterring crime, and rehabilitating the offenders. They do not include penalizing defendants for going to trial or discouraging future defendants from doing so.

Prosecutors nonetheless believe a defendant’s insistence on going to trial is a perfectly legitimate reason to pursue an increased sentence—even one that is wholly disproportionate to the underlying offense. As a former US Attorney told us: “We weren’t trained to think about the lowest sentence that serves the goals of punishment.” [6]

Even prosecutors who try to achieve fair sentences through plea bargains acknowledge that the quest for fairness ends if the defendant refuses to plead. Prosecutors also insist they are not "punishing" defendants with higher sentences when they refuse to plead guilty, but rather “rewarding” defendants who, by pleading, spare them the expenditure of time and resources needed for a trial. From the perspective of the defendant looking at a significant trial penalty, this is no distinction.

Once they have made a threat during plea negotiations, prosecutors believe they must follow through with it if the defendant goes to trial, both because a defendant who refuses to plead deserves “no mercy,” and because they want to be sure future defendants take their threats seriously. They think they will lose credibility if they permit defendants to reap the same sentencing "concessions" after a trial as they had been offered if they pled. Asked if they thought these much higher post-trial sentences are just, prosecutors dodged the question.

In 2012, 26,560 federal drug defendants were prosecuted by 93 US Attorneys and over 5,400 assistant US attorneys in 94 federal districts.[7] Determining prosecutorial practices and policies in each district is beyond the scope of this report. Our research shows that prosecutorial charging and plea bargaining practices vary dramatically from district to district. It also shows that the trial penalty is widespread across the country.

Key Findings

Using sentencing data from individual cases collected nationwide by the United States Sentencing Commission (the Sentencing Commission), most of it from 2012, Human Rights Watch has developed statistics that shed light on the size of the trial penalty. Each case contains a unique mix of factors that results in the final sentence, but our findings nonetheless provide deeply troubling evidence of the price defendants pay if they refuse to plead.

Among our findings:

Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty (215 versus 82.5 months).

Among first-time drug defendants facing mandatory minimum sentences who had the same offense level and no weapon involved in their offense, those who went to trial had almost twice the sentence length of those who pled guilty (117.6 months versus 59.5 months).

Among defendants who were eligible for a sentencing enhancement because of prior convictions, those who went to trial were 8.4 times more likely to have the enhancement applied than those who plead guilty.

Among drug defendants with a weapon involved in their offense, those who went to trial were 2.5 times more likely to receive consecutive sentences for §924(c) charges than those who pled guilty.

These statistics cannot fully capture the leverage that prosecutors exert over individual defendants during plea bargaining. If a prosecutor’s threats are made orally, there may be no written record of them. During hearings, when the judge makes a decision whether to accept a plea agreement, it is rare for prosecutors, defense counsel, or defendants to mention the sentencing risk defendants faced if they did not plead.

The following case exemplifies the dire consequences that result when prosecutors made good on their threats to pursue increased sentences for a defendant who refuses to plead. A prosecutor who was willing to accept a plea that gave the defendant a 10-year sentence, was willing to have her sentenced to life without parole because she insisted on going to trial.

Sandra Avery[8]

Sandra Avery was a survivor of childhood sexual abuse who served in the army and the army reserves, earned a college degree, overcame an addiction to crack, became a born-again Christian, and worked as an accountant. But in her early forties, her life spun out of control: she became addicted to crack cocaine again, lost her job, and started delivering and selling small amounts of crack for her husband, a crack dealer.

In 2005, Avery was arrested and indicted by a federal grand jury for possessing 50 grams of crack with intent to deliver, an offense then carrying a mandatory minimum sentence of 10 years. Avery refused to enter into a plea agreement with the government because it did not offer anything less than 10 years and because, as she says, “I simply was not in my right mind at the time.” She was convicted after trial, and sentenced to life. Because there is no parole in the federal system, she will remain in prison until she dies.

The life sentence resulted from the government’s choice to trigger a sentencing enhancement based on Avery’s previous drug convictions. During the early 1990s, she had been convicted three times under Florida law for possessing small amounts of crack for her personal use; she told Human Rights Watch that the value of drugs in those three cases amounted to less than $100 and she was sentenced to community supervision.

When Human Rights Watch asked Avery’s prosecutor why he sought the enhancement in her case, he said “because it applied.” He said the policy in his office is to seek such enhancements whenever they are applicable, although there is “room to negotiate” if a defendant pleads guilty and agrees to cooperate with the government. His office policy also permits prosecutors to seek approval from their superiors not to file for the enhancement, which did not happen in Avery’s case. Asked whether he thought Avery’s life sentence was just, he refused to comment.

A Call for Federal Reform

In an August speech to the American Bar Association, Attorney General Eric Holder endorsed the need to reform federal sentencing laws and practices to reduce the number of people sent to prison and the length of their sentences.

Identifying “just sentences” for low-level, nonviolent drug defendants as a Department of Justice priority, Holder issued a memorandum to federal prosecutors instructing them to avoid charging offenses carrying mandatory minimum sentences for certain low-level, nonviolent offenders. He also directed prosecutors to avoid seeking mandatory drug sentencing enhancements based on prior convictions when such severe sentences are not warranted.

 It is too soon to tell how prosecutors will carry out the new policies: they contain easily-exploited loopholes and do not prohibit prosecutors from pursuing harsh sentences against a defendant who refuses to plead. Moreover, there is no remedy if prosecutors ignore the letter or spirit of Holder’s policies. If a defendant is convicted, the judge must impose the applicable mandatory minimum sentence or sentencing enhancement sought by the prosecutor.

A recent case in which the defendant was sentenced after Holder issued his memorandum suggests some prosecutors may continue to seek egregiously long sentences for drug defendants who refuse to plead.

Roy Lee Clay[9]

On August 27, 2013, a federal court sentenced part-time house remodeler, Roy Lee Clay, 48, to life behind bars without possibility of parole. He was convicted after trial of one count of conspiring to distribute one kilogram or more of heroin—a crime that normally carries a 10-year sentence. Prosecutors asserted he was part of a 14-person heroin trafficking group centered in Baltimore, Maryland, and that for two-and-a-half years, Clay distributed heroin to other dealers and to users as well. There was no evidence in his case that he used violence to further his drug activities.

Clay had two prior drug convictions: a 1993 federal conviction for possession with intent to distribute 100 grams of a mixture containing heroin for which he was sentenced to 87 months in prison, and a 2004 state conviction for possession with intent to distribute controlled substances.

The government offered to let Clay plead to 10 years on the drug charges. It also threatened to file an information with the court seeking a penalty enhancement to life based on the two prior convictions if Clay insisted on going to trial. He rejected the plea offer and went to trial, which ended with a hung jury. The government renewed the 10-year plea offer, but Clay again refused. After the second trial, Clay was convicted. The government made good on its threat and sought the mandatory enhancement based on the two prior convictions.

Previously willing to accept a 10-year sentence, prosecutors ensured Clay would spend the rest of his life behind bars.  At his sentencing, Judge Catherine Blake called the life without parole sentence “extremely severe and harsh.” [10]

One prosecutor in the case told Human Rights Watch he thought the life sentence was consistent with the Attorney General’s August 2013 memorandum instructing prosecutors to seek prior conviction enhancements only in cases in which such severe sanctions are appropriate. Still, he refused to explain why he thought Clay deserved a life sentence.

Looking Ahead

As an organization dedicated to enhancing respect for and protection of human rights, Human Rights Watch insists that individuals who violate the rights of others be held accountable for their crimes. We also insist that all people accused of crimes have fair legal proceedings to determine their guilt.

Plea agreements do not necessarily violate human rights; defendants may choose to give up their right to trial in return for a sentencing concession. Nevertheless, plea bargaining as practiced in US federal drug cases raises significant human rights concerns. It is one thing for prosecutors to offer a modest reduction of otherwise proportionate sentences for defendants who plead guilty and accept responsibility for their offense. Such a discount does not offend human rights.

But the threat of a large trial penalty is unavoidably coercive and contrary to the right to liberty and to a fair trial. In some cases, the sentences imposed on drug defendants who refused to plead are so disproportionately long they qualify as cruel and inhuman.

Momentum is growing to end nearly three decades of harsh sentences for federal drug offenders amid growing realization that the US cannot incarcerate its way out of drug use and abuse, and that long sentences neither ensure public safety nor strengthen communities. There is also growing and welcome national recognition that meaningful reform of federal drug laws must include restoring sentencing discretion to federal judges.

We believe Congress should eliminate mandatory minimum drug sentences: the one-size-fits-all approach of the mandatory minimum statutes prevents sentences tailored to the individual case. Congress should also eliminate mandatory penalties based on prior convictions or guns. With sentencing guidelines and appellate review to keep judicial sentencing discretion within appropriate bounds, there is no need for mandatory punishments that primarily serve to coerce defendants into pleading guilty, an unacceptable exercise of government power.

A sound criminal justice system, like all forms of good government, needs checks and balances. Prosecutors should have charging discretion and be encouraged to exercise it carefully and fairly. But the final say over sentences defendants receive must come from independent federal judges who have no personal or institutional stake in the outcome of a case other than to ensure justice is done and rights are respected. Judges with sentencing discretion could end the disgraceful trial penalty in federal drug cases and ensure defendants receive sentences reflecting their crimes, not their willingness to plead.[11]

Recommendations

Human Rights Watch offers the recommendations below to end the prosecutorial practice of coercing drug defendants into guilty pleas with threats of draconian sentences. Our recommendations address both the need for reform of the federal sentencing regime and the need for constraints on prosecutorial plea bargaining practices.

Our most important recommendation is for Congress to restore sentencing discretion to the federal judiciary. While mandatory punishment is not the only factor that convinces defendants to plead guilty, there is no question prosecutors coerce many pleas because they can threaten exorbitant mandatory sentences for defendants who go to trial. If federal judges had authority to review and revise drug sentences to ensure they satisfy the requirements of justice, it would diminish the power of prosecutorial threats.

Our recommendations would not eliminate plea bargaining. Prosecutors could offer modest sentence reductions to reward defendants who choose to plead guilty. But prosecutors would no longer be able to force defendants to plead to avoid grotesquely long sentences. They would be required to charge offenses carrying sentences proportionate to the defendant’s crime and culpability, they would be limited in the extent of the discount from those sentences that could be offered in exchange for the defendant’s willingness to plead guilty, they would be prohibited from threatening superseding indictments with higher charges in order to secure a plea and, finally, they would be prohibited from filing such indictments to punish defendants who refuse to plead.

To Congress
End mandatory minimum drug sentences and restore to judges the ability to calculate proportionate sentences in all drug cases, taking into account the sentencing guidelines for federal drug defendants. Congress should enact legislation to:

Abolish federal mandatory minimums for drug offenders based upon the quantity of the drug involved.

Abolish mandatory sentence increases based on the number and nature of prior convictions.

Abolish mandatory consecutive sentences for drug defendants who use, carry, or possess firearms in connection with their drug crime.

To the Attorney General

Establish just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial. Define just sentences as those which are proportionate to the defendant’s individual conduct and culpability and which are no longer than necessary to further the purposes of punishment in each individual case.

Direct prosecutors to seek indictments only for charges that would yield a fair and proportionate sentence for each individual defendant in light of the facts known about that defendant. If an offense carrying a fair sentence has been charged, prosecutors may offer a modest sentencing benefit to reward a defendant for pleading guilty, but should not offer to reduce the defendant’s sentence to such an extent as to coerce the defendant into waiving the right to trial. We urge the Department of Justice to establish parameters for what such a modest reward might be. In addition, the Department of Justice should explicitly prohibit prosecutors from: 1) threatening higher sentences to secure pleas from drug defendants and 2) filing superseding indictments that raise the sentence faced by a defendant solely because the defendant refused to plead guilty.

Truth in Sentencing: high rates of violence against LGBTQ prisoners. What's new?

The good folks at Prison Legal News pointed me to this article that came out a few years ago in the San Francisco Bay Guardian, petrinent to many of the issues I'm fighting with the AZ DOC about right now. How can they deny that one's sexual preference and gender identity don't put a prisoner at exceptionally high risk in the general population? It's either ignorant or an outright lie in the face of extensive research - and litigation - proving the opposite. I'm inclined to think AZ DOC classification and other administrative staff are fully informed of the truth about violence to queer prisoners, and are knowingly placing them in harm's way over and over again...Jan Brewer shoud really be ashamed of herself for letting this all go on so long. 

The thing is that I hate trying to make prison "more safe" - it's never safe for anyone, not even in protective custody. Exile and isolation only does violence to the mind and soul. What we need to do is abolish the prison industrial complex altogether, not just make the living hell we condemn people to more palatable for the rest  of us...

here's good blog post that talks about that, from a friend in prison:

On prison abolition and the appeasement of slaves: strategies for resistance (Friday, August 9, 2013).

and here are some useful links re: surviving AZ Prisons:

AZ Prison Rape: Survivor Resources (Friday, March 18, 2011)

AZ DOC: Resisting prison violence (REVISED)(Monday, February 18, 2013)

AZ DOC's Protective Custody fight: tend to both body and soul. (Friday, April 12, 2013)

Corizon's deliberate indifference: fighting back.( Thursday, May 30, 2013)

For more information, here are the Sylvia Rivera Law Project, 

and Just Detention International.

and here's a 
guide to surviving prison for transgender women, 

from TGI Justice and California prisoners...

 

------------------------

Sentenced to rape: 
LGBT inmates face unusually high risk of sexual assault in prison
San Francisco Bay Guardian
December 24, 2008
BY MEGHANN MYERS

It's been 60 years since the United Nations General Assembly issued the Universal Declaration of Human Rights, affirming the inherent dignity and inalienable rights of all people. Yet prisoners are often denied the most basic protections of the law. Rape is still a brutal reality in prison, a problem that disproportionately affects LGBT inmates.

In 2003, Congress unanimously passed the Prison Rape Elimination Act (PREA), creating federal mandates to fight sexual assault in prisons. But its implementation has been slow. This year, the Bureau of Justice Statistics conducted the first national survey of violence in the corrections system. It found sexual orientation to be the single greatest determinant for sexual abuse in prisons — 18.5 percent of homosexual inmates reported sexual assault, compared to 2.7 percent of heterosexual prisoners. Though PREA aims to reduce these figures, prisoners and their advocates have been waiting on its official guidelines, which are set for release in 2009.

In an attempt to address California's challenges in protecting LGBT inmates, California Sen. Gloria Romero held an informational meeting Dec. 11 in San Francisco, bringing together former LGBT prisoners, advocates, experts, and representatives from the California Department of Corrections and Rehabilitation (CDCR).

"Nobody has it easy in prisons, and LGBT persons in particular experience unique kinds of harassment, discrimination, and violence when incarcerated," said Masen Davis, executive director of the Transgender Law Center.

Inherent flaws in our social institutions result in a disproportionate number of LGBT prisoners. Discrimination in employment, housing, and healthcare often force members of the LGBT community, particularly transgender individuals, to turn to the street economy to support themselves. A survey by the Transgender Law Center found that fewer than half of transgender adults held a full-time job, and one in five have experienced homelessness since becoming transgender (see "Transjobless," 3/15/06). These factors greatly increase the instance of criminal activity in the LGBT community. The Center for Health Justice reports that more than two-thirds of male-to-female transgender San Franciscans have been incarcerated; in six other major urban areas, one in four gay men had been incarcerated.

Once LGBT individuals enter the California prison system, says Linda McFarlane, deputy executive director of Just Detention International, they are 15 times more likely to experience sexual assault than the general population. In addition, she said, prison staff more often fail to protect these inmates than others, and are more likely to believe that assaults are consensual.

"There seems to be a belief among some corrections officers that rape is unavoidable in prison," McFarlane said. "It's been asked more than once in training sessions that if transgender inmates are at such risk, why are they still allowed to be transgender within the prison environment?"

Alex Lee, a co-director of the Transgender, Gender Variant, and Intersex Justice Project, read a statement from Bella Christina Borrell, a 56-year-old transgender inmate: "Female transgender prisoners are the ultimate target for sexual assault and rape. In this hyper-masculine world, inmates who project feminine characteristics attract unwanted attention and exploitation by others seeking to build up their masculinity by dominating and controlling women."

Of course, there are policies in place that should protect inmates from each other. PREA stipulates that sexual assault during incarceration can constitute a violation of the Eighth Amendment to the US Constitution, and mandates that facilities employ a zero-tolerance policy toward abuse. However, like many things in life, the theory and practice have little in common.

"We've heard multiple times about officers openly expressing a belief that gay and transgender inmates cannot be raped, that they deserve to be raped due to their mere presence in the environment, or that if they are raped it's simply not a concern," McFarlane said.

Joe Sullivan of the California Department of Corrections and Rehabilitation said policy dictates that gay or transgender status alone does not warrant specific housing arrangements. He said the department prefers to integrate inmates in a setting that most closely resembles what they will be returning to after being paroled.

When they arrive in prison, inmates are evaluated using a system called Compass, which is a set of guidelines to determine each person's specific needs. During this time, inmates are able to state whether they feel they need special arrangements.

"It's a framework that is followed by the staff at institutions," Sullivan said. "Some of the things I heard today suggest that how the framework is interpreted is one of the issues we'll have to go look into and do some further training on."

It has been suggested that the previously used designations Category B and SOR (sexual orientation), which include guidelines for "effeminately homosexual" men, might aid CDCR in their classification process. However, as Sullivan stated, the prison system's evaluation procedure largely ignores these special circumstances.

"The classification process is gender-neutral," Sullivan said. "We try to address the individual's specific needs, as opposed to having a policy for a group or a class of people. We really don't distinguish between transgender and non-transgender inmates."

While this policy is certainly egalitarian, it ignores the extreme vulnerability of LGBT inmates, something many prisoners don't realize until after they've been victimized. Then, all too often, they are placed in isolation cells usually reserved as punitive measures.

"If they have been a victim of a sexual assault, they can be and will be single-celled, at least for the period of time that we go through investigating the allegations," Sullivan said. "We try to do it in an expedient manner, so that the victim is not the one sitting in administrative segregation."

The panelists all agreed that eliminating sexual violence against the LGBT community requires some of our most precious resources: time, energy, and money. In the past, the general rule has been to increase spending for prisons while simultaneously reducing funds for social programs like housing, employment, and health care, which all have a lot do to with the amount of crime in the first place.

Advocates recommend that an effective classification system must be implemented. First, corrections officials have to acknowledge that factors like an inmate's sexual orientation or transgender status put them at an exceptionally high risk for violence. Second, steps must be taken to reduce the instances of harassment, abuse, and sexual assault suffered by inmates. Female transgender inmates must be issued sports bras and should be allowed to shower separately from the general population to curb humiliation and predation. If an assault occurs, victims should not be placed in punitive custody, the complaint must remain confidential, and assailants cannot be allowed the opportunity to retaliate. Finally, corrections officers should have to participate in an extensive training program to help them deal with these factors.

Bambi Salcedo, a transgender ex-convict who now works with transgender youth at Children's Hospital Los Angeles put it simply: "We have to realize that homosexual and transgender inmates must be treated with dignity in the correctional system."


This article originally appeared in the December 24, 2008 online issue of the San Francisco Bay Guardian; it is reprinted at Prison Legal News with permission of the author.

Grand Canyon Institute: Sentencing Reform and Public Safety

Dave Wells is an extremely thoughtful professor of political economy, and has been active in peace and justice issues in the valley for a long time. His arguments below are worth the read. The original piece by the state's prosecutors that this responds to is pasted at the bottom of this post.

-----------------

Response Report

March 21, 2012

County Attorneys Criticism of Reducing Incarceration Costs while Maintaining Public Safety: 

GCI Response Evidence-Based Programs Work

Dave Wells, Ph.D.

 Fellow, Grand Canyon Institute

Download this report:http://grandcanyoninstitute.org/sites/grandcanyoninstitute.org/files/GCI_Prison_Response-March2012.pdf

Read the original study "Reducing Incarceration Costs While Maintaining Public Safety" http://grandcanyoninstitute.org/sites/grandcanyoninstitute.org/files/GCI_Policy_Paper_Prisons-March2012.pdf

Subscribe to Grand Canyon Institute Emails: http://grandcanyoninstitute.org/civicrm/mailing/subscribe

The Grand Canyon Institute’s recent report “Reducing Incarceration Costs while Maintaining Public Safety: from Truth in Sentencing to Earned Release for Nonviolent Offenders,” and an op-ed that appeared on behalf of the Institute in the Saturday, March 3 Arizona Republic by GCI Board Member Bill Konopnicki was criticized in an op-ed piece that appeared in the Saturday, March 17 Arizona Republic co-signed by five County Attorneys: Bill Montgomery (Maricopa County), Barbara LaWall (Pima County), Daisy Flores (Gila County), Sam Vederman (La Paz County), and Brad Carlyon (Navajo County).[1]

The Grand Canyon Institute appreciates our County Attorneys’ steadfast commitment to public safety.  However, we wish they had taken a bit more care to review our report before criticizing it, as the Grand Canyon Institute purposely chose to focus on nonviolent offenders in the “ultra low,” “very low” and “low” recidivism risk categories developed by Darryl Fischer in his 500 page report that was released by the Arizona Prosecuting Attorneys' Advisory Council.[2]

GCI would much rather see our County Attorneys as allies than opponents in efforts to improve the efficiencies and outcomes of our criminal justice system.  Incarceration has a role in criminal justice, but at a cost of $20,000 per year, for some nonviolent offenders, we have better options that are at least as effective and at significantly lower cost.  Our County Attorneys are already heavily invested in programs to divert offenders from incarceration, which we applaud.  The GCI report was intended to open a conversation about the structures of incentive-based programs, who might be eligible, and how best to structure the community supervision and drug treatment components that would need to accompany them.  We hope they see merit in these ideas, and look forward to working with them constructively to reduce incarceration costs while maintaining public safety.

Positive interventions are far more impactful than negative ones, so earning release to community supervision has the potential to be a powerful motivator for inmates to change behavior.

Recidivism rates are particularly challenging to lower. However, the criminal justice field has embraced evidence-based practices, which is what GCI encourages Arizona to adopt.  For instance the HOPE (Hawaii Opportunity Probation with Enforcement) program in Hawaii has been particularly successful because it catches noncompliance well and applies swift and certain sanctions.  The sanctions do not need to be severe, but they do need to be swift and certain.  The HOPE program targeted high risk individuals, the hardest group to impact, while GCI had focused on low risk individuals.  The results of the one-year randomized trial of the HOPE program are noted below[3].

(source: National Institute of Jusice, April 23, 2010, http://www.nij.gov/topics/corrections/community/drug-offenders/hope-outcomes.htm)

Below are the Grand Canyon Institute’s responses to the concerns expressed by the County Attorneys in their op-ed.

County Attorneys Concern: Funding Education or Prisons is a false dichotomy

“Overwhelming evidence and history clearly prove that we do not have to rob the criminal-justice system to cover the legitimate costs of education. Both are constitutional duties and responsibilities for Arizona.”

GCI response: Since 2002  the Department of Corrections budget increased 75 percent, while state general fund investments in state universities declined by 11 percent. 

 Between rigid sentencing policies and a state fiscal crisis, universities were perceived as a discretionary expenditure.  However, every state agency should seek to operate in the most cost-effective manner, including Corrections.  GCI examined cost efficiencies that would not harm public safety (details below).

County Attorneys Concern: Konopnicki op-ed didn’t recognize the cause of prison population decrease.

“Konopnicki is correct in noting that Arizona is seeing a decline in its prison population for the first time. Yet this is not because we're releasing more prisoners. It's primarily because fewer people are being sent back to prison for minor or technical probation violations.”

GCI Response: Bill Konopnicki credited the Safe Communities Act and evidence-based initiatives at the county probation level, especially Maricopa County, as the cause of the prison population decrease.Reposted below:

“For the first time since we’ve kept prison statistics, Arizona has experienced a modest decline in its prison population.  The reason has been evidence-based practices with our probation population, reducing those sent to prison. The Safe Communities Act of 2008, a bipartisan effort, sponsored by then State Senator John Huppenthal (R) gave county probation agencies incentives to reduce crime and violations rather than return offenders into state custody.   Under the law, offenders earn 20 days off of their probation term for every month that they meet all of their obligations, including payment of victim restitution if it was ordered.  The Grand Canyon Institute’s latest report “Reducing Incarceration Costs While Maintaining Public Safety,” notes that in Maricopa County alone the drop in probation revocations to prison saved taxpayers $27 million annually over costs in 2008.”

County Attorneys Concern: Konopnicki and GCI advocated putting felons “on the street” which would increase crime and negatively impact public safety.

“Konopnicki ignores the reality that putting inmates on the street would increase crime and the attendant costs on society. His misguided idea also begs the question: Who should be released? Konopnicki states that "nearly 20 percent of our prison population are non-violent offenders." But he ignores the fact that this "non-violent" population includes people convicted of drug trafficking, multiple or aggravated DUIs, child molestation and other offenses classified as Dangerous Crimes Against Children.”

GCI Response: Using classifications developed in a report for the Arizona Prosecuting Attorneys' Advisory Council, GCI identified a number of possible classifications of nonviolent offenders at low risk for recidivism as candidates for diversion or earned release to community supervision with drug treatment.

GCI didn’t advocate simply releasing people to the street, but to place nonviolent felons into evidence-based community supervision programs that would not impact public safety.  The targeted categories offered included;

1. First-time nonviolent offenders who were considered in the Fischer report as “ultra-low”, “very low” or “low” risk of recidivism.
2. Nonviolent offenders convicted of class 4 to 6 felonies serving sentences of two years or less who also fell in these recidivism categories
3. All nonviolent offenders who fell in these recidivism categories.

Truth in Sentencing for nonviolent offenders treats all offenders the same, when they are not.  An inmate who refuses work assignments, uses drugs in prison, gets in fights, and enrolls in zero behavior modification programming serves practically the same prison time as an inmate who goes to work every day, stays drug free, attends all programming offered, has no disciplinary problems, and gets a GED.

Earned release would reward the second-type of inmate, while also helping reduce the likelihood of recidivism. 

The most common new crime committed by those released (violent and nonviolent were not separated by the Fischer report for this[4]) was Drug Possession and DUI, suggesting substance abuse issues remained after release, which is why drug treatment was mandated in the GCI recommendations for anyone with such a history who was released to community supervision.  Currently only about 1 in eight inmates with significant substance abuse histories are receiving treatment in ADC.[5]  The GCI report lists evidence-based outcomes reproduced below that are designed to reduce recidivism as reported by the Washington State Institute for Public Policy, a research arm of the Washington legislature.

Program	Percent Reduction in 8-year Recidivism[6] (number of studies based on)
Adults Drug Courts	-10.7%    (56)
In-Prison “therapeutic communities” with community aftercare	-6.9%       (6)
In-Prison “therapeutic communities” without community aftercare	-5.3%       (7)
Cognitive-behavioral drug treatment in prison	-6.8%       (8)
Drug treatment in the community	-12.4%    (5)
Drug treatment in the jail	-6.0%       (9)
General and Specific cognitive –behavioral treatment for overall offender population	-8.2%     (25)
Cognitive-behavioral treatment in prison for sex offenders	-14.9%   (5)
Cognitive-behavioral treatment for low-risk sex offenders on probation	-31.2%   (6)
Intensive Supervision: treatment-oriented program (w/o treatment, not impactful)	-21.9%    (10)
Correctional industries in prison	-7.8%      (4)
Basic adult education in prison	-5.1%      (7)
Employment train and job assistance in the community	-4.8%     (16)
Vocational education in prison	-12.6%    (3)

County Attorneys Concern: Cost savings doesn’t include cost of additional crime.

“Research data compiled by 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 not have otherwise been imprisoned. Based on cost-of-crime models of leading crime economists, keeping these offenders off the streets prevented 98,038 additional crimes and generated a cost savings of more than $360 million dollars that would otherwise have been spent on crime-related damages to people and property.”

This is a shortened version of what has been written elsewhere: “The number of felonies by repeat offenders averages just under one per month. Under Arizona's truth-in-sentencing laws, the average prison sentence is 33 months. Thus we have prevented approximately 98,038 additional crimes in Maricopa County alone. Assuming 90 percent of those deterred crimes (88,234) are to property with an average cost $1,900 each, that works out to a savings of $167 million. Assuming the remaining 10 percent (9,804) are violent offenses, which are generally estimated to cost $20,000 each, that savings approaches $196 million. Not only is this proof for the adage "crime doesn't pay," it supports the corollary - "incarceration saves" - to the tune of $363.7 million.”[7]

GCI Response: Repeat felony offenders committing crimes once a month (and not always getting caught) does not sound like a group the Arizona Prosecuting Attorneys' Advisory Council research report would classify as “ultra low”, “very low” or “low” risk of recidivism.  Incarceration has its function, but what happens afterwards is equally important.

One of the primary functions of prison is to incarcerate those who would otherwise be victimizing law abiding citizens.  However, an equally important question is what’s happening after 33 months?  Are these individuals returning to their life of crime?  Our guess is that absent systematic interventions to improve their odds of success, this is crime that is temporarily avoided, not permanently avoided.

County Attorneys Claim: Truth in Sentencing is why Arizona’s crime rate has dropped faster than the national average.

“Incapacitating these criminals is certainly one reason Arizona is enjoying a much larger drop in crime than the nation as a whole. Releasing prisoners will not save money. It will not make us safer. And it will certainly not help our education system. To argue otherwise is irresponsible and inconsistent with an intelligent public-policy-making process.”

GCIresponse:  The causality in this claim lacks merit; the decline in Arizona’s crime rate occurred nine years after Truth in Sentencing was adopted.

Of course, if you incarcerate more people, they cannot commit more crimes.  However, we don’t find that the states with the highest incarceration rates have the lowest crime rates.  Truth in Sentencing was adopted in Arizona in 1994, yet it’s not until 2003 that Arizona experiences the first of a succession of years in declining crime rates[8].  Despite that decline, Arizona’s crime rate still exceeds the national average.  The sources of that decline are definitely worth exploring, but the prima face evidence does not suggest Truth in Sentencing, especially for nonviolent offenders, is responsible.

Dave Wells holds a doctorate in Political Economy and Public Policy and is a Fellow at the Grand Canyon Institute.

Reach the author at DWells@azgci.orgor contact the Grand Canyon Institute at (602) 595-1025.

The Grand Canyon Institute is a centrist think thank led by a bipartisan group of former state lawmakers, economists, community leaders, and academicians. The Grand Canyon Institute serves as an independent voice reflecting a pragmatic approach to addressing economic, fiscal, budgetary and taxation issues confronting Arizona.

Grand Canyon Institute

P.O. Box 1008

Phoenix, AZ 85001-1008

GrandCanyonInstitute.org

[1]Konopnicki, Bill, “State can save money by reducing prison population,” My Turn, Arizona Republic, March 3, 2012, http://www.azcentral.com/arizonarepublic/opinions/articles/2012/03/02/20120302konopnicki-state-can-save-money-by-reducing-prison-population.html and Montgomery, Bill, Barbara LaWall, Daisy Flores, Sam Vederman, and Brad Carlyon, “Releasing prisoners will not save money,” Our Turn, Arizona Republic, March 17, 2012, http://www.azcentral.com/arizonarepublic/opinions/articles/2012/03/16/20120316county-attorneys0317-releasing-prisoners-will-not-save-money.html.

[2]Fischer, Daryl, “Prisoners In Arizona Truth-In-Sentencing, Time Served and Recidivism,” Arizona Prosecuting Attorneys’ Advisory Council, December 2011, pp. 340, 395, 396, 400, 410, 424 http://azsentencing.org/docs/APAAC-Fischer-Prisoners-in-AZ-Report-II.pdf.

[3]“‘Swift and Certain’ Sanctions in Probation Are Highly Effective: Evaluation of the HOPE Program, National Institute of Justice, February 3, 2012,   http://www.nij.gov/topics/corrections/community/drug-offenders/hawaii-hope.htm.  See also discussion in Kleiman, Mark  (2011), “ Justice reinvestment in community supervision,” Criminology & Public Policy, Vol. 10, Issue 3, pp. 651-659.

[4]              Fischer, Daryl, “Prisoners In Arizona Truth-In-Sentencing, Time Served and Recidivism,” Arizona Prosecuting Attorneys’ Advisory Council, December 2011, p. 278, http://azsentencing.org/docs/APAAC-Fischer-Prisoners-in-AZ-Report-II.pdf.

[5]On intake ADC reports 75 percent of inmates have significant substance abuse histories, yet drug treatment was provided to about one-tenth of the total number of inmates entering ADC in 2011.   As other reports indicate that substance abuse issues may be much higher than that, so about one in eight who need treatment are receiving it.  See Ryan, Charles, “ADC Data and Information Fiscal Year 2011,” Corrections at a Glance June 2011 at end of report after 13-6, http://www.azcorrections.gov/data_info_081111.pdfand Arizona Methamphetamine Conference Report 2006, “Addressing the Meth Crisis in Arizona,” p. 10, http://www.azag.gov/StopMeth/MethConferenceReport7_19_06.pdf.

[6]If the 8 year recidivism rate were 50 percent, a 10 percent reduction would be to 45 percent.  Programs with no decrease are omitted from the chart, but may still be cost-effective provided that program is cheaper than the alternative (e.g., Intensive Supervision alone did not reduce recidivism, but it’s significantly less expensive than incarceration, so for the same result, the cost is less.  Note when combined with drug treatment intensive supervision is very impactful at less cost than incarceration.).  For full details, Aos, Steve, Marna Miller, and Elizabeth Drake, Washington State Institute for Public Policy “Evidence-Based Adult Corrections Programs: What Works and What Does Not,” January 2006, p. 3 for specific table. http://www.wsipp.wa.gov/rptfiles/06-01-1201.pdf.

[7]“Mandatory Sentencing is Working for Arizona, County Attorney Op-ed from Arizona Republic, Dec. 28, 2010,  http://www.maricopacountyattorney.org/newsroom/12-28-10-Mandatory-sentencing.pdfand “Top Five Myths About Arizona’s Sentencing Laws,” Arizona Sentencing Report, http://azsentencing.org/component/content/article/35-services/112-top-myths-about-arizona-sentencing-laws)

[8]Fischer, Darryl R., “Prisoners in Arizona: A Profile of the Inmate Population,” Arizona Prosecuting Attorneys Advisory Council,  March 2010, pp. 6, 8. http://apaac.az.gov/images/stories/prisoners_in_arizona-033010.pdf.

----------from the AZ Republic----------

County attorneys: Releasing prisoners will not save money

Bill Montgomery, Barbara LaWall, Daisy Flores, Sam Vederma and Brad Carlyon 

Arizona Republic - Mar. 17, 2012

Former state Rep. Bill Konopnicki presents a false choice based on selective data in claiming Arizona's investments in public safety have come at the expense of education ("State can save money by reducing prison population," My Turn, March 3).

Overwhelming evidence and history clearly prove that we do not have to rob the criminal-justice system to cover the legitimate costs of education. Both are constitutional duties and responsibilities for Arizona.

Konopnicki is correct in noting that Arizona is seeing a decline in its prison population for the first time. Yet this is not because we're releasing more prisoners. It's primarily because fewer people are being sent back to prison for minor or technical probation violations.

In parroting the popular fallacy that releasing more prisoners would free up funds for education, Konopnicki ignores the reality that putting inmates on the street would increase crime and the attendant costs on society.

His misguided idea also begs the question: Who should be released? Konopnicki states that "nearly 20 percent of our prison population are non-violent offenders." But he ignores the fact that this "non-violent" population includes people convicted of drug trafficking, multiple or aggravated DUIs, child molestation and other offenses classified as Dangerous Crimes Against Children.

Apparently, Konopnicki is eager to welcome these people into his neighborhood. But most Arizonans would shudder at the thought, which is why there is strong support for truth-in-sentencing laws that keep these offenders behind bars.

In focusing only on the cost of incarceration, Konopnicki overlooks the tremendous savings Arizona has enjoyed by preventing repeat offenders from committing additional crimes. Research data compiled by 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 not have otherwise been imprisoned.

Based on cost-of-crime models of leading crime economists, keeping these offenders off the streets prevented 98,038 additional crimes and generated a cost savings of more than $360 million dollars that would otherwise have been spent on crime-related damages to people and property.

Reading Konopnicki's argument, one might conclude that prison is the default for non-violent offenders in Arizona. In fact, our state has been a leader in offering prison alternatives such as substance-abuse treatment and diversion programs to most first- and second-time offenders. Konopnicki has it backwards when he suggests we should follow Mississippi's example in this regard. The reality is that Mississippi is following ours.

The truth about Arizona's truth-in-sentencing laws is that they have put the right people in prison for the right reasons: More than 95 percent of our incarcerated population are violent or repeat felony offenders.

Incapacitating these criminals is certainly one reason Arizona is enjoying a much larger drop in crime than the nation as a whole. Releasing prisoners will not save money. It will not make us safer. And it will certainly not help our education system. To argue otherwise is irresponsible and inconsistent with an intelligent public-policy-making process.

Signers to this column: Bill Montgomery, Maricopa County attorney; Barbara LaWall, Pima County attorney; Daisy Flores, Gila County attorney; Sam Vederman, La Paz County attorney; and Brad Carlyon, Navajo County attorney.