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

AZ SB1016 1

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

Tucson Police and Prosecutors Advance Fight Against Sexual Assault

No means no

Continuing the fight against sexual assault in our community, the Tucson Police Department and the Pima County Attorney’s Office have received a $1 million grant to help process a backlog of 1,200 previously untested rape kits. The grant has already enabled TPD to test 400 kits, allowing officials to connect 61 of those to a DNA profile in a national database. The first sexual assault case that has grown out of the grant program is the prosecution of Nathan Loebe, who was arrested in Kentucky and is now waiting to be extradited back to Tucson. Evidence from some of the rape kits recently tested with money from the new grant connects Mr. Loebe to nearly a dozen counts of sexual assault in Tucson dating back to 2002.

Struggling to prioritize sexual assault prosecutions

Sexual assault is a major problem in our community and at the national level. According to the National Sexual Violence Resource Center, 1 in 4 girls and 1 in 6 boys will be sexually abused before they turn 18. Making it to adulthood is no guarantee of safety, though, as the NSVRC also estimates that 1 in 5 women and 1 in 71 men will be raped at some point in their lives.

Despite the severity of the problem of sexual violence, it remains a crime that is notoriously under-reported, under-prosecuted, and under-punished. The Rape, Abuse, & Incest National Network reports that only 11 out of every 1000 rapists will be referred for prosecution, versus 37 out of 1000 robbers and 105 out of 1000 non-sexual assailants.

sexual assault numbers

Here in Pima County, the disparity between rates of prosecution for sexual crimes and other types of offenses is particularly problematic. For far too long, we have refused to prioritize the prosecution of sexual assault and instead focused on prosecuting non-violent drug offenses. For 11 out of the last 15 fiscal years, the highest percentage of criminal cases the Pima County Attorney filed in Pima County Superior Court were drug cases.

Pima County drug and sex prosecutions

The Arizona Department of Corrections’ own data shows that, as of February 2017, the highest percentage of prisoners in the state – 22.1% – are behind bars for drug offenses. Only 1.3% of prisoners are being held for rape/sexual assault.

February 2017 DOC stats

New $1 million grant helps process TPD’s rape kit backlog

TPD’s crime lab is constantly busy processing evidence from thousands and thousands of criminal cases. According to Police Chief Chris Magnus, the new grant allows TPD to outsource the testing of 1,200 previously untested rape kits, which will help make the detection and prosecution of sexual assault in our community more effective.

It goes without saying that the prosecution of sex crimes should be a top priority of the criminal justice system. The trauma associated with sexual assault can last a lifetime, and lead to a host of difficulties.

Sexual assault survivor stats

Additionally, there is a powerful correlation between surviving sexual assault and later involvement in the criminal justice system. Nearly 50% of imprisoned women that researchers spoke to in one study reported they were abused as children, and 70 – 80% of sexual abuse survivors reported excessive drug and alcohol use later in life.

 Not only will testing old rape kits help bring justice to people who have already been sexually assaulted, it will also help prevent future assaults. Many sexual assailants are repeat offenders. In one study undertaken by researchers from the University of Massachusetts and Brown University School of Medicine, most undetected rapists researchers examined were repeat offenders; almost two-thirds of them raped more than once, and a majority also committed other acts of interpersonal violence, such as battery, child physical abuse, and child sexual abuse. Repeat rapists each committed an average of 6 rapes and/or attempted rapes, and an average of 14 interpersonally violent acts.

The Tucson Police Department and the Pima County Attorney Office’s cooperation in securing the new grant is the kind of law enforcement that should be applauded and encouraged. The more our community steps away from imprisoning non-violent drug offenders, and the more we focus on investigating and prosecuting violent crimes and sex crimes, the safer and more just Pima County will become.

– Joel Feinman

Pima County Residents Owe $126 Million For Mass Incarceration

Taxing away mass incarceration

The staggering costs of mass incarceration

Mass incarceration costs Arizona taxpayers money – a lot of money. According to a comprehensive new report published by the American Friends Service Committee, the Arizona Department of Corrections (DOC) annual budget is now over $1 billion, and makes up 11% of the state’s general fund. That’s an increase of 28.4% over ten years, during which time Arizona’s spending on schools, economic security, and even public safety has decreased. Arizona ranks fourth highest among all 50 states in the percentage of total general fund expenditures on corrections.

Arizona budget spending changes

All Arizona taxpayers pay for DOC, but not all Arizonans make the decisions that drive mass incarceration. On the contrary those decisions rest with just fifteen prosecutors, elected at the county level who have no term limits, and some of whom have held office for decades. They have near total discretion to ease or aggravate the problem of mass incarceration in Arizona. But neither they nor even their voters pay much of the costs of the decisions they make – everybody else does. It is a classic example of the economic theory of negative externalities, meaning the person responsible for a particular action does not bear the cost of that action. Much like nuclear waste, the $1 billion expense of mass incarceration in Arizona harms us all, but it is generated by a very few.

Making mass incarcerators pay their way

Last year Michael McLaughlin, an economic researcher out of Washington University in St. Louis, proposed an intriguing solution to the negative externality problem of mass incarceration. McLaughlin’s paper, “Using a Pigouvian Tax to Reduce Incarceration,” argues that,

Local actors have considerable discretion whether to conduct a search, make an arrest, charge a person with a crime, classify a crime as a misdemeanor or felony, or issue a lengthy prison sentence…One way to correct this negative externality is with a Pigouvian tax. Charging local governments on a per-prisoner basis for the cost of incarceration could induce local actors to internalize the externality and reduce the number of prison admissions.”

A “Pigouvian tax,” named after English economist Arthur Pigou, is just a fancy way of describing a local tax that would apply to the party that generates negative externalities, and would require them to pay the costs of those externalities. An example would be taxing industrial polluters the cost of cleaning up pollution and treating medical issues it causes.

According to DOC, as of February 2017, 12.6% of Arizona prisoners were from Pima County.

Feb 2017 DOC county numbers

If we were to fund the $1 billion Arizona DOC budget with a Pigouvian tax, Pima County residents would pay an additional $126 million in county taxes.

I suspect that if a $126 million tax increase proposal came before the Pima County Board of Supervisors, it would be deeply unpopular. However that should not stop us from considering the justice of McLaughlin’s proposal. Why shouldn’t the people who drive mass incarceration be forced to pay for it, and forced to justify their policies when the economic fallout hits the taxpayers who elected them? Two of the fundamental tenets of conservative government are personal responsibility and paying your own way. Our elected officials, and indeed ourselves, should assume the responsibility of paying for the policies we advocate for. Perhaps it is only when we are required to pay for mass incarceration out of our own pockets that we will demand its end, loudly and permanently.

– 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

Pima County Attorney Does Not Prosecute Hate Crimes

prosecuting hate crimes 3

The Pima Liberator has obtained copies of every incident designated a “hate crime” by the Tucson Police Department and the Pima County Sheriff’s Department in 2015 and 2016. After analyzing the police reports and court files of every single incident, The Liberator has learned that the Pima County Attorney has not prosecuted a single hate crime in the last two years.

Prosecutors must allege a crime was motivated by hate for it to be punished as a “hate crime”

In April 1990, the U.S. Congress passed The Hate Crimes Statistics Act (28 U.S.C. § 534)  which requires the U.S. Attorney General to collect data about crimes motivated by race, religion, sexual orientation, or ethnicity. The law was amended in later years to include crimes motivated by disabilities, gender and gender identity, and crimes committed by and against juveniles. As a result, Pima County law enforcement agencies make a practice of collecting information on crimes that appear to be motivated by hate towards one of these groups, and reporting that information to the FBI.

Arizona law does not define “hate crimes” as a unique kind of criminal conduct. Instead, Arizona Revised Statutes § 13-701(D)(15) and § 41-1750(A)(3) state that, when a judge decides how to sentence a defendant, they shall consider as an aggravating factor,

Evidence that the defendant committed the crime out of malice toward a victim because of the victim’s…race, color, religion, national origin, sexual orientation, gender or disability.”

In other words, hate crimes in Arizona are more commonplace crimes such as assault, robbery, and murder that can lead to a harsher sentence if motivated by the victim’s membership in a protected group. However, in order for a judge to make a hate crime finding and sentence a defendant to a longer prison sentence, the prosecutor must first allege that the crime was motivated by hate. This allegation is made in a pleading attached to the formal criminal indictment, which lists what laws a defendant is charged with violating.

In 2015 and 2016 the Pima County Attorney prosecuted zero out of 20 incidents designated by law enforcement as hate crimes

The Pima Liberator obtained copies of all 20 reported incidents that the Tucson Police Department and Pima County Sheriff’s Department designated as hate crimes in 2015 and 2016. All 20 are listed and summarized here.

Among the findings:

  • The Pima County Attorney did not prosecute any of these incidents as a hate crime.
  • 11 of the 20 incidents involved race or color; 7 involved national origin; 7 involved a crime based on sexual orientation; 5 involved religion. (Some incidents were targeted at multiple protected groups.)
  • Only 3 of the 20 incidents resulted in an arrest.
  • 2 of those 3 incidents were prosecuted as misdemeanor disorderly conduct and threatening and intimidating cases – charges not included in Arizona’s current hate crimes laws.
  • Only once did the Pima County Attorney bring felony charges in an incident designated by law enforcement as a hate crime. In January, 2015, a male high-school student assaulted another male student in their high-school’s bathroom while calling the victim “faggot,” “retard,” and “bitch.” The victim suffered a ruptured spleen, internal bleeding, and a broken clavicle. The Pima County Attorney did not charge this as a hate crime, but allowed the defendant to plead guilty to a class 6 (the lowest level) felony in juvenile court. The defendant was sentenced to probation, and the charge was eventually designated a misdemeanor.

Actions speak louder than words

Despite this very thin record, Pima County Attorney Barbara LaWall has previously trumpeted her commitment to prosecuting hate crimes, which she has said extends to serving on the Board of Directors of the National District Attorney’s Association, “Whose meetings deal with numerous issues of vital concern to our constituents, including issues related to…hate crimes.” Ms. LaWall has ordered her office to create and distribute – from Pima County taxpayer funds – glossy brochures in which she has bragged about working with community groups to hold hate crime offenders accountable.

LaWall hate crimes claim

“A Report To The People: Pima County Attorney’s Office 1996 – 2006,” pg. 32

In addition, Ms. LaWall’s employees and supporters have lauded her supposed dedication to the prosecution of hate crimes during her previous elections.

Taking the “mission to protect the public safety” seriously

Hate crime is a serious issue in our community and our country. The FBI reports that there was a 6% rise in hate crime in 2015, and there has been a huge spike in the number of anti-Muslim hate groups in the U.S.. Recent days have seen the brutal shooting of Indian immigrants, and dozens of bomb threats made against Jewish community centers across the country, including here in Tucson. The Tucson City Council is right now considering a new hate crimes ordinance that would prohibit misdemeanor hate crimes, and Tucson Mayor Jonathan Rothschild issued a statement just last week promising that the Tucson Police Department will work vigorously “to apprehend the people behind any hate crimes.”

According to her own words, Pima County Attorney Barbara LaWall gives special attention to helping victims and prosecuting violent crime, and takes seriously her “mission to protect the public safety.” But how well is this mission fulfilled when our chief prosecutor does not even attempt to prosecute hate crimes? It is unfair to expect any prosecutor to maintain a perfect record of hate crimes prosecutions, especially when such crimes often lack eyewitnesses or suspects. But it is also unfair to the voters and taxpayers of Pima County for an elected official to publicly and vigorously condemn hate crimes that they in fact do not seem to care all that much about prosecuting.

– Joel Feinman

Pima County Attorney violates law by not reporting 2016 diversion rates; admits only 3 felony defendants into program in 2015

Pima County Attorney diversion program

Most people assume when they are charged with a crime there are only two possible outcomes: go to trial, or plead guilty to a less serious charge in exchange for a reduced sentence. However a little known – and little used – Arizona law also allows prosecutors to offer defendants who want to avoid trial “deferred prosecution,” also known as “diversion.” Under this program, if a defendant pays fines and restitution and attends supervised treatment programs, their case will be dismissed BEFORE they are found guilty of any crime. This is obviously a huge advantage to defendants who want to get jobs, school loans, or professional licenses; if they successfully complete diversion, they are left with a clean record of no conviction. Under the law passed by the Arizona legislature, which defendants get offered deferred prosecution is up to the “sole discretion” of the County Attorney. However, the Legislature does require each County Attorney to “[e]stablish and maintain” a record of how many people they enrolled in deferred prosecution programs each fiscal year. These legally mandated reports are archived on the website of the Arizona Prosecuting Attorney’s Advisory Council (APAAC), and they make for interesting reading.

In fiscal year 2015/2016, Pima County Attorney Barbara LaWall did not file any deferred prosecution report whatsoever, in violation of A.R.S. §11-362(B). Ms. LaWall did file a report in fiscal year 2014/2015, however it was only a general description of her diversion programs, and did not include any of the statistics that are required by state law. These statistics are supposed to inform the public how many defendants the County Attorney enrolled in diversion, and how many defendants successfully completed the program. Some of the 2015 stats did see daylight on January 20, 2016, when Ms. LaWall submitted a budget memo to Pima County Administrator Chuck Huckelberry in which she lauded her adult diversion program on the last page.

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Pima County Attorney 2015 budget memo, pg. 15

Despite the fact that, year after year, the largest percentage of felony cases Ms. LaWall files are drug cases, and despite her claim that the success rate for diversion is “93% for substance abuse charges,” the Pima County Attorney saw fit to offer deferred prosecution to only 3 felony defendants in 2015. Pima County taxpayers spent hundreds of thousands of dollars on the prosecution, probation supervision, and imprisonment of the rest.

Sadly, the number of defendants offered diversion is only decreasing. On page 9 of an outline of 2016 “financial highlights” the Pima County Attorney sent to the County Administrator and Board of Supervisors in support of her proposed budget for fiscal year 2017/2018, Ms. LaWall wrote that she diverted 165 fewer adults from prosecution in 2016 compared to 2015, despite the fact that the success rate for felony diversion increased from 60% to 80%, and the success rate for substance abuse diversion increased from 93% to 94%. Significantly, Ms. LaWall did not inform Mr. Huckelberry or the Board just how many adults accused of felonies she allowed into diversion in 2016.

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Pima County Attorney 2016 “financial highlights”, pg. 9

Even for those very, very few defendants whom the Pima County Attorney does offer diversion / deferred prosecution to, their ability to succeed in the program and emerge with a clean record depends very much on the amount of money they have in their pockets.

In December, 2016, The New York Times published a series of articles examining diversion programs across the country. Their research revealed “that in many places, only people with money could afford a second chance” by entering a diversion program. This is because a defendant’s ability to enter and complete such a program hinges on their ability to pay the program’s fines and fees, which can be thousands of dollars. As the Times noted, “In a country where 27 million households make less than $25,000 a year, even $500 can be prohibitive.” The Times surveyed almost 200 defense lawyers across the U.S. about their clients’ experiences with local diversion programs, and two-thirds of the lawyers said fees were a barrier for their clients. A brief quiz accompanied the story and illustrated how legally and economically difficult it can be for many people to enroll in and successfully complete deferred prosecution programs.

Here in Pima County, as you can see from this standard fee schedule the Pima County Attorney attaches to each diversion plea, diversion costs defendants a minimum of $630 to $840. The true cost can be thousands of dollars more, depending on how much restitution the defendant must pay.

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2012 diversion fee schedule

A defendant’s failure to make payments doesn’t just delay their completion of the program: failure to pay everything they owe ensures that the County Attorney terminates them from diversion and reinstates all of the original, more serious charges. Here is a complete diversion plea from 2012, omitting names and case numbers. On page 6 the plea clearly states,

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2012 diversion plea agreement termination clause

This clause, which is in all diversion pleas the Pima County Attorney offers, exposes a sad truth of the entire deferred prosecution program: if you have money, you can complete the program and your case will be dismissed. If you are poor and cannot pay you will be terminated from the program – or never allowed into it in the first place – and you will almost certainly become a convicted felon for the rest of your life.

Equal protection under the law is one of the values that makes our country great. It was enshrined in our Constitution by the 14th amendment in 1868, after the crucible of the Civil War. It epitomizes one of the most important beliefs that Americans died by the hundreds of thousands to validate; that the law should protect us all equally, regardless of race and religion and gender and class. But how hollow has this promise become when the amount of money in your pocket determines how much justice you will receive?

– Joel Feinman

Postscript / Editors’s Note

This article was originally published on January 23, 2017. One day after its publication the Pima County Attorney released her fiscal year 2015/2016 diversion report on the website of the Arizona Prosecuting Attorney’s Advisory Council. The report is dated August 8, 2016, more than 6 months before it was finally published.

2015-2016 diversion report.png

According to the report the Pima County Attorney offered deferred prosecution to only 5 felony defendants in 2015/2016, despite the program’s 80% success rate. In comparison the Pima County Attorney offered diversion to 8 individuals or businesses who were cited for selling tobacco to minors.

As of this writing the Pima County Attorney’s fiscal year 2014/2015 diversion report still omits how people the office enrolled in the deferred prosecution that year, in violation of A.R.S. §11-362(B).

Pima County Attorney plea agreements punish crack far harsher than powder cocaine

Pima County Attorney plea policy

The biggest racial disparity in the sentences handed down to drug offenders is for crack-related crimes. According to the U.S. Sentencing Commission, 79% of 5,669 crack offenders sentenced in 2009 were black, versus 10% who were white and 10% who were Hispanic. For decades, state and federal sentencing laws have punished crack offenses far more harshly than powder cocaine offenses. Before 2010, federal law contained a 100:1 disparity; crack offenders faced a 10-year mandatory minimum for carrying 10 grams of the drug, while the same penalty would not apply to a powder-cocaine offender unless they were caught with 1,000 grams.

Thankfully, in 2010 President Obama signed into law the Fair Sentencing Act (FSA), which reduced the crack/powder cocaine federal sentencing disparity to 18:1. While the FSA did not conclusively end racially tinged disparities in federal drug sentencing laws, it was a step in the right direction. What the FSA did not address, and what no federal or state sentencing reform law can address, are the racial disparities involved in plea polices.

Elected prosecutors play a large – and largely unnoticed – role in exacerbating and maintaining our system of mass incarceration both locally and across the nation. The prosecutor’s total control over the plea agreement process dictates which defendants go to trial, and the lengths of prison terms for the 95% of defendants who give up their right to a trial and plead guilty.

Yet plea agreement policies are often shrouded in secrecy. Almost all prosecutors consider their process of deciding which defendants get which kinds of pleas “work product,” which makes plea policies impervious to Freedom of Information Act requests and disclosure motions. Thus, plea negotiations occur in seclusion from the light of accountability. But sometimes, the sunlight can penetrate.

The Pima Liberator has obtained an undated copy of the Pima County Attorney Narcotics Unit “plea policy guidelines.” These guidelines were set by Pima County Attorney Barbara LaWall, and they dictate to her line prosecutors which kinds of plea agreements they are allowed to offer to which kinds of offenders.

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Per the Pima County Attorney’s own plea guidelines, there is an almost 3:1 disparity between how much crack and how much powder cocaine will cause that office to require a defendant to serve prison time for possessing drugs for sale. It is also worth noting that the Pima County Attorney remains far more interested in sending low-level crack dealers to prison than people who sell pills like Oxycodone and Percocet, despite the increasingly fatal effects these pills are having in Pima County.

The Pima County Attorney has never publicized or explained her insistence on a nearly 3:1 crack/powder cocaine prison disparity, and considering the historic opacity of the process used to justify which defendants go to prison, it is highly unlikely she will do so now. But like so many other aspects of our criminal justice system, this plea policy raises serious questions about who we are sending to prison, and why. Finally, the dictates of plea policy clarifies a truth which those working in the criminal justice system have long known; that the County Attorney considers themselves and not judges the final arbiter of who, in their own language, “must serve prison time,” and for how long. This is further evidence – not that any more was needed – that in today’s criminal justice system power over freedom vs. imprisonment, and even life vs. death lies almost exclusively with the prosecutor.

– Joel Feinman