The Dirty Heart of Clean Elections

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“The mind of man is capable of anything — because everything is in it, all the past as well as all the future.” – Joseph Conrad

Manufacturing fear of crime and criminals, and exploiting the boogeyman of the convicted felon is a hallowed American political tradition. As researcher Anthony M. Platt wrote in the journal Social Justice in 1994, “Every politician running for office in the November elections recognized that law and order demagoguery was the ticket to success.” This certainly applies to presidential contenders; see Bush 41’s execrable 1988 Willie Horton ad, Bill Clinton’s interruption of his 1992 presidential campaign to fly back to Arkansas to ensure the execution of a mentally ill black man, and Donald Trump’s seemingly endless invocations of Chicago, “American carnage,” and racialized sexual assault.

None of this fear-mongering and dog-whistling will come as any surprise to anyone with even a passing familiarity with American politics. What may be surprising is that, in Arizona, people convicted of felonies are forced by law to help pay for some of the very campaigns that demonize them to achieve victory.

Paying for the privilege of the hangman’s noose

On November 3, 1998, Arizona voters passed Proposition 200, the “Clean Elections Act.” According to the Commission which oversees it, the Act provides “clean funding” to statewide and state legislative candidates, who want to campaign with public funds instead of private donations as a way of avoiding the influence of private donors. Essentially, candidates who choose to “run clean” must demonstrate they have community support by collecting a set number of $5 qualifying contributions. The Clean Elections Commission then gives these candidates public funds to run their campaigns. These public funds come from three places: 1) the $5 qualifying donations gathered by clean candidates, 2) civil penalties levied against candidates who violate the clean elections law, and 3) a 10% surcharge on civil penalties and criminal fines. It is this third funding source that deserves special scrutiny.

Under Arizona law, any time a court imposes a fine on a defendant for a civil violation (parking ticket) or a criminal violation (robbery), the court must also impose a 10% surcharge on that fine, which goes into the clean elections fund. In October 2002, the Arizona Supreme Court upheld the constitutionality of this law in the case of May v. McNally, and ruled that the surcharge was a “tax” that did not violate the First Amendment’s ban on compelled speech.

Requiring people convicted of crimes to help fund the campaigns of law & order candidates who will, if elected, make their lives even worse would startle Kafka himself –  unless he was born in Arizona. Lest we think this does not actually occur, we need only examine some of the positions taken by the following “clean” elected officials:

  • State Representative Mark Finchem (R-Tucson), who has been endorsed by Joe Arpaio and the Arizona Citizen’s Defense League.
  • State Representative Bob Thorpe (R-Flagstaff), who likes to tweet about how the liberal media underreports black-on-white crime, and how former Attorney General Eric Holder is “soft on crime” because he doesn’t like how many black men are in prison.
  • State Representative Becky Nutt (R-Clifton), who supports private prisons and thinks “drug and human smuggling are out of control.”
  • State Representative Kelly Townsend (R-Mesa), who voted to lengthen the prison sentences of undocumented immigrants convicted of crimes.
  • State Representative Anthony Kern (R-Glendale), who believes in “mandatory sentencing laws with stiff penalties to prevent violent criminals and predators from being released back onto our streets.”

“A society should be judged not by how it treats its outstanding citizens, but by how it treats its criminals.” -Fyodor Dostoevsky

What could be more cruelly ironic than forcing people convicted of criminal offenses – whose newly depressed job prospects already increase the difficulty of making ends meet – to fund their further political demonization? How about forcing them to pay for an electoral system they cannot participate in.

Arizona law holds that, once a person is convicted of a felony, they automatically lose a host of civil and political rights, including the right to bear arms, the right to serve on a jury and hold public office, and the right to vote. One may think this is appropriate for people convicted of murder, rape, and armed robbery. However, before we clamber up a soap box and preach about not doing the crime if you can’t do the time, we might want to pause and reflect on just how many acts qualify as felonies in Arizona these days. Here are 29 pages of them, an incomplete list that includes such horrors as branding an animal that belongs to another person, pandering, and filing a false bingo report.

Such over-criminalization extracts a heavy toll on our democracy; as of 2016, Arizona had the 8th highest percentage of disenfranchised voters in the nation; 221,170 people, or 4.25% of the State’s population, was ineligible to vote in the last election due to a criminal record. Elections are won and lost by far smaller numbers than this. In 2016 Representative Finchem beat his Democrat opponent by 9,998 votes – 4.5% of Arizona’s disenfranchised voters. Representative Thorpe won his race by 4,770 votes – 2.1% of disenfranchised voters. Representative Kern’s victory over his Democratic opponent was the thinest of all clean elections candidates; he won by 4,001 votes, a mere 1.8% of the Arizonans disenfranchised by a criminal conviction.

“That’s some catch, that Catch-22,” he observed. “It’s the best there is,” Doc Daneeka agreed.” ― Joseph Heller

The Clean Elections Act’s final insult to injury occurs when people with criminal convictions attempt to get their voting rights restored. The law automatically restores most first offenders’ civil rights once they complete probation or are discharged from prison, but only as long as they pay off all of the fines and restitution imposed as part of their sentence.

To see how the momentous injustice of this can play out, let’s assume for the sake argument that our neighbor, John Yossarian, pleads guilty to selling real estate without a proper license, which in Arizona is a felony offense. After his plea the court automatically revokes Yossarian’s right to vote, and orders him to pay a $10,000 fine. This means Yossarian must also pay a $1,000 surcharge to the state clean elections fund on top of that fine. He can no longer sell real estate, so Yossarian cannot get a good job and earn a significant income. After eighteen months he successfully completes probation and doesn’t get into trouble again, but working for minimum wage at a fast food restaurant means he has no extra money to pay either the fine or the surcharge. Consequently Yossarian’s right to vote is not restored, and he cannot vote against his state representative and their tough on crime platform in the 2018 election. Even if Yossarian does scrape together the $11,000 it will take to get his voting rights back, a percentage of that money will help fund his representative’s re-election campaign against a more progressive opponent who, unlike Yossarian’s representative, wants to end mass incarceration and over-criminalization.

This is the realty of the Clean Elections Act, and its injustice plays out hundreds of times a day in courtrooms all over our state. The intention behind the Act – ameliorating the effect of money on elections – may have been noble, but as is so often the case in our history, it is the poorest and most helpless among us who must pay the price for our noble efforts. That price isn’t cheap, and can be measured by the 221,170 Arizonans who could not vote in the last election for a better and more equitable society.

– Joel Feinman

 

Oyez, Oyez, Oy Vey! The AZ Legislature Is Now In Session!

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The 2018 legislative session is upon us, and like children lining up for Spongebob Squarepants on Ice tickets, our knees tremble with anticipation to see what zany antics and logic-defying feats of special interest derring-do our elected officials will get up to this year.

SB1016 – Making the Stasi Proud

Thus far it looks like the dumpster fire that has long been the Arizona Republican legislative agenda will not slacken in the slightest. State Senator John Kavanagh (R-Fountain Hills) has introduced SB1016, which requires people to report to police or rescue personnel “a life-threatening emergency,” if they can do so without endangering themselves or others. Failure to report would be a class 1 criminal misdemeanor, punishable by a fine of up to $2,500 and up to 6 months in jail.

The problems with this bill are legion. Never mind that it further over-criminalizes life in the “land of the free,” where one lawyer and researcher has estimated the average resident now commits three felonies every day. The bill also makes no effort to define what a “life-threatening emergency” is.

Presumably Mr. Kavanagh and his Republican colleagues consider planning an abortion a life-threatening emergency. If so, everyone from the clinic nurse to the receptionist to the supportive partner will find themselves indicted for a criminal offense if they do not immediately call 911 when they hear a woman utter the word “abortion” to a health care provider. And what about when I was 16, and my best friend Adam jumped off his roof into his pool? Clearly a life-threatening emergency if he’d slipped, or even misjudged the wind a tad. In Senator Kavanagh’s Arizona of small government and maximal individual rights, I should have narced on Adam the moment he clambered up the wall. Likewise the Senator would have you call the police on your squabbling cousins who had too many beers at the family BBQ (shove George too hard and he could fall and hit his head and die), and his bill would mandate you immediately dial 911 when you see another person driving too fast (speeding being a leading cause of deadly traffic accidents).

The AZ Legislature doesn’t want to abolish government; it simply wants to enlarge to the size of a bathtub it can bludgeon us to death with.

SB1016 is not Senator Kavanagh’s first foray into the field of blatantly unconstitutional laws criminalizing innocent behaviour. In 2016 he introduced SB1054, a bill that would have made it illegal for people to shoot video within twenty feet of any law enforcement activity without an officer’s permission. A first offense would have carried a $300 fine, and subsequent violations could have sent people to jail for up to six months. Thankfully the bill went nowhere, but Senator Kavanagh’s past and current legislative efforts expose the intellectual bankruptcy at the core of our state’s legislative majority; they are small government and pro-freedom only as long as people do exactly what they think they should do. The moment their beliefs conflict with the beliefs of others – we shouldn’t be government-mandated narcs, cities should limit the use of polluting plastic bags, schools should teach local history and culture –  our legislative majority seeks to expand the power of the government to arrest, convict, fine and imprison whomever they disagree with. This is big government at its biggest, and the coercive power of the state in it purest form. Senator Kavanagh and his ilk seem hell-bent on proving Reagan right; government is not the solution to our problem, government is the problem. At least their government, anyway.

– Joel Feinman

The erosion of the right to a jury trial

The November 2016 edition of the New York Review of Books featured a disturbing article by U.S. District Judge Jed S. Rakoff on the disappearance of one of our most fundamental rights – trial by jury. His Honor lists many factors that are to blame for Americans’ increasing inability to have their day in court, including rising litigation costs and mandatory arbitration clauses. However he omits discussing the outsized role that American prosecutors have played in severely limiting most American’s right to a jury trial in criminal cases.

The authors of both the U.S. and Arizona constitutions considered the right to a jury trial so sacrosanct that its existence is guaranteed in multiple places. Article II Section 23 of the Arizona Constitution states that “[t]he right of trial by jury shall remain inviolate.” Article III of the U.S. Constitution, as well as the 6th and 7th Amendments to the Constitution also guarantee the right to a jury trial in most civil and criminal cases. But as Judge Rakoff makes clear, this right – which was so foundational to our national self-image that the Declaration of Independence lists King George III’s deprivation of it as one of the British offenses that justified revolution – has been steadily eroding.

The slow death of trial by jury in criminal cases is particularly worrisome. Judge Rakoff mentions that vastly increased mandatory minimum sentences in criminal cases have caused almost every criminal defendant to plead guilty rather than run the risk of serving years, or even decades, in prison (95% of the people charged in state criminal cases plead guilty and forgo a trial). His Honor acknowledges that this has exacerbated the development and institutionalization of mass incarceration nation-wide, which the Judge himself notes “has rightly become a source of shame for our country.”

But Judge Rakoff’s essay, while well-meaning and thoughtful, does not go far enough in ascribing agency to the problems he identifies, particularly within the criminal realm. What His Honor does not mention is that deciding which cases plead out and which go to trial does not fall to the judges who preside over them, or even with the legislators who write state criminal codes. In Arizona as in most states, determining a defendant’s charges, whether to offer them a plea agreement, and what kind of sentence to offer as an enticement to forgo the right to a jury trial rests entirely with the prosecutor. It was elected prosecutors across the nation who lobbied for the passage of mandatory minimum sentencing laws, and who use them daily to frighten defendants into taking plea agreements instead of insisting upon their rights to a trial. A real-life example best illustrates this.

When I was a public defender, I was appointed to represent a client whom I will call Dan. Dan was accused of breaking into a self-storage facility and stealing a stranger’s belongings: a gun, camera equipment, ammunition, a painting, and some electronics. All told the prosecutor accused Dan of stealing 24 items, all on the same day and at the same time. The prosecutor charged Dan with violating Arizona Revised Statue 13-1802(A)(1), which reads, “A person commits theft if, without lawful authority, the person knowingly controls property of another with the intent to deprive the other person of such property.” This crime is punishable by anything between probation and 7.5 years in prison, depending on prior offenses and other circumstances. But here’s the rub. The prosecutor charged Dan with one count of theft for each item he allegedly stole. Dan wasn’t facing a maximum of 2.5 years in prison (the top sentence for that crime for people, like Dan, who have no prior convictions). If he went to trial and lost Dan was facing 2.5 x 24 years – 60 years in prison for breaking into one storage unit, one time.

Imagine facing that choice. Sure, Dan was technically “innocent until proven guilty beyond a reasonable doubt” like all accused Americans, and sure he had a “right” to a jury trial, but how hollow does that presumption ring and that right become when standing by them means gambling with your life and freedom for committing one act of theft?

This is the true scope of the power of the American prosecutor in the age of mandatory minimum sentencing and discretionary plea agreements. They are the real arbiters of some of our most basic rights and freedoms, and every day in courthouses across the land they decide how meaningful the “right” to a trial really is.

– Joel Feinman