Arizona doesn't seem like that sort of place that worries too much about prisons and prisoners. It is, after all, the home of Maricopa County (Phoenix) Sheriff Joe Arpaio, infamous for his myriad degradations and humiliations of prisoners under his care—the pink underwear (to prevent prisoners from taking them home, said Joe), the green meat (it may be almost rotten, but it's cheap, said Joe), the cell-block web-cams that exposed prisoners to the prurient gaze of whoever it is who would watch such a thing. But it is also home to a prison system bursting at the seams, one that made the national news earlier this year when two desperate inmates conducted the longest prison guard hostage-taking in the nation's history.
And now, even in rock-ribbed conservative Arizona, the clamor to do something about the state's swollen prisons and ever-larger prison budgets is growing louder. Although a legislative special session on the topic last year achieved little except a resort to private prisons and a call from Gov. Janet Napolitano (D) for a half-billion dollar prison construction program, concerned legislators in the House have formed a working group to examine alternatives to the state's harsh sentencing laws. Their report is due soon.
And Arizona-based groups such as Middle Ground Prison Reform (http://www.middlegroundprisonreform.org), led by retired lower court judge Donna Hamm, have been fighting for years to bring more justice into the Arizona criminal justice system. Middle Ground issued a detailed report in September 2003 calling for sweeping legislative and administrative reforms within the Arizona prisons.
Now, Families Against Mandatory Minimums (http://www.famm.org), the Washington, DC-based national sentencing reform advocacy group has joined the fray. This week, FAMM released a report, "Arizona Prison Crisis: A Call for Smart on Crime Solutions," finding that mandatory minimum and sentence enhancement laws had resulted in prisons filled with nonviolent offenders at a substantial cost to Arizona taxpayers, but without significant gains in public safety.
"Arizona's experience with mandatory sentencing is all too common: more and more state policymakers are discovering that mandatory sentences tie the hands of judges, send the wrong people to prison, and waste valuable dollars on nonviolent offenders" said Laura Sager, executive director of FAMM. "Like other states, Arizona should consider smart-on-crime solutions to focus scarce correctional resources on more serious offenders, while giving judges the authority to hold nonviolent and low-level offenders accountable in community based sanctions."
As a result of harsh sentencing practices, Arizona's prison population has increased more than 600% since 1980, nearly seven times faster than the state's overall population. According to the Arizona Department of Corrections, the state has the highest incarceration rate of any Western state, and last year, 80% of new admissions were for nonviolent offenders. Drug offenders accounted for 18% of all new admissions, with nearly 6,000 behind bars in the state for drug crimes. In the past decade, the amount of time they serve has increased from 23 months to 34 months.
The overcrowding does not appear to be merely a reflection of Arizona's rapid population growth. From 1980 to 2000, the state's population grew by about 90 percent, from 2.7 million to 5.1 million. During that same period, Arizona's inmate population grew by about 600 percent, from 3,859 inmates to more than 27,000, and has since crept up to 31,000 inmates.
Imprisoning those low-level criminals cost money -- money that the state of Arizona does not have. The corrections budget has increased twenty-fold since 1978, from $32 million to $638 million this fiscal year, the agency reported.
"The mandatory minimum sentencing laws are driving a population that is more than half nonviolent offenders -- drug offenders, property crimes, and a high number of drunk drivers," said study coauthor Kevin Pranis of Justice Strategies, the organization commissioned by FAMM to conduct the study. "It would cost an additional $40 million in corrections spending every year just to keep up with the current rate of growth," he told DRCNet.
Not only is Arizona filling its prisons with nonviolent offenders serving long sentences, said Pranis, it is doing little to rehabilitate them. "One of the things we found was that over half the prison population got the highest possible need score for alcohol or drug treatment," he explained, "and over 85% of the prison population in Arizona has problems with chemical dependency. But there is almost no treatment available; they are just warehousing these prisoners."
Back in 1996, Arizona voters passed Proposition 200, which was supposed to divert first- and second-time drug offenders away from prison. While it has kept some people out from behind bars, Prop. 200 has been limited in its effects for a couple of reasons. "One big problem is that it only applies to drug possession, not low-level drug dealing or property crimes," Pranis said. "The other big issue is the state's rigid system of sentencing enhancements for repeat offenders, with their mandatory sentencing provisions. If you get picked up for drug possession once or twice, you wouldn't go directly to prison, but then if you got arrested three years later for something as minor as shoplifting you could face a mandatory minimum three-year prison sentence because of your prior convictions. Prop. 200 has had a positive impact, but the drug problem isn't limited to drug possession."
"Our report was, we hope, a first step in reviewing and reforming the system," said Prentice. "Our major recommendation is for a high-level policy commission to do further research, but we also identified some concrete changes that would make a big difference now. We should limit the mandatory minimum sentencing enhancement to people who commit violent crimes -- now it doesn't matter if it was armed robbery or drug possession, you still get hit with the mandatory minimums," Pranis argued. "Also, we need to reclassify small-time drug sales as less serious felonies. Currently any drug distribution crime is the second most serious class of felony, so you end up with people serving longer average sentences than most violent offenders."
That's not all that needs to be done, said Middle Ground's Hamm. "Mandatory minimum sentences are only part of the problem, and many of them are for murder or sex crimes," she told DRCNet. "The real problem here, and FAMM didn't say it very forcefully, is that prosecutorial power and the misuse of that power is rampant. Prosecutors have way too much power, and they sometimes abuse it, especially with the ability to enhance and aggravate sentences."
Hamm pointed to one notorious Arizona case where a man was sentenced to 130 years in prison for looking at 13 child porn images. "We have a mandatory minimum 10-year sentence for each and every image, and those terms runs consecutively unless the judge provides a reason for departing from the sentence," she explained. "This guy ends up with 130 years for 13 pictures -- that's far more than a rapist or a child molester who actually touched a child would get. The idea that this man should serve 130 years for looking at pictures but not touching anyone is absurd," said Hamm. "And judges and prosecutors mete out those sentences with a straight face."
Prosecutors have created for themselves powers that they are unwilling to give up, Hamm said. "They understood early on the need to organize and lobby, and they got laws that gave them unalterable and highly disproportionate power. Now it's very, very hard to undo that." The result, said Hamm, is that "the justice system is not a level playing field. All that hoopla about criminals' rights is completely bogus, when you consider that the vast majority of defendants give up their rights when they are forced into plea bargains. They are subject to the whim and political calculations of local prosecutors."
Still, even with the power of the prosecutors and their "tough on crime" allies, an alliance for sentencing reform is growing. "This year's legislative session is wrapping up now, but we are looking to sit down with legislators over the next few months to seek agreement on what should happen next year," said FAMM's head Arizona organizer, Joel Foster. "There is a House working group looking at these issues that will produce its own report any time now, and we expect there will be substantial agreement on what needs to be done."
Although the House working group on sentencing alternatives is chaired by a conservative Republican, Rep. Bill Konopnicki, and dominated by Republicans, FAMM has been laying the groundwork for cooperation with the panel. "They asked FAMM to submit recommendations, which we did, and I testified before their panel," said Foster. "We are working closely with the chair and other members."
In fact, Konopnicki attended a Tuesday press conference trumpeting the release of the FAMM study. "Clearly what we are doing now just isn't making sense," he said. "We are taking people we are mad at and turning them into hardened criminals. We do have a prison crisis in Arizona, not just because of beds but because of how we incarcerate. It is time to stop warehousing people, it is time to start treating people and making a difference in their lives."
But not everyone is on board, especially drug war hard-liners like Sheriff Arpaio and Maricopa County prosecutor Rick Romley, who in 2001 angled unsuccessfully to be appointed national drug czar. Not only are there not too many people in prison, Romley told the Arizona Republic, drug users belong there. "We must consider building more prisons," Romley said. "No one's showed me that the wrong people are in prison. The ones that are on cocaine and marijuana are the ones who beat their children," he said.
Still, FAMM's Foster is optimistic. "The prospects are great. We have a bipartisan mix of elected officials from extreme right-wing conservatives to extreme liberals -- all the ideological camps are coming together and getting interested in reform. Fiscal conservatives are reconsidering priorities in the face of the budget crisis, while elected officials of color are concerned about sentencing disparities. They are coming from different places, but they are working together on the same goal."
Read the FAMM report, "Arizona Prison Crisis: A Call for Smart On Crime Solutions," as well as a press release and summary, at: http://www.famm.org/si_sbs_arizona_press_release_5_11_04.htm
Read the Middle Ground Prison
Reform report, "Dollars, Sentences, and Public Safety" at: