Arizona Inmate Population

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A new report by the Arizona Prosecuting Attorneys’ Advisory Council shows that 95 percent of those in Arizona prisons are repeat and/or violent offenders. Maricopa County Attorney Bill Montgomery, who is also a member of the Arizona Prosecuting Attorneys’ Advisory Council, will discuss the report, along with David Euchner, the Appellate Unit supervisor of the Pima County Public Defender’s Office. He is also president of Arizona Attorneys for Criminal Justice, the statewide organization of defense attorneys.

Ted Simons: A new report by the Arizona Prosecuting Attorneys' Advisory Council shows that 95% of those in Arizona prisons are repeat and/or violent offenders. Here to discuss what that means in terms of incarceration rates and the debate over sentencing reform is Maricopa County Attorney Bill Montgomery, who is also a member of the Prosecuting Attorneys' Advisory Council. Also joining us is David Euchner, the Appellate Unit Supervisor of the Pima County Public Defender's Office, and president of Arizona Attorneys For Criminal Justice, the statewide organization of defense attorneys. Good to have you both here. Thanks so much for joining us.

David Euchner: Thank you.

Ted Simons: Bill we'll start with you. This idea of these numbers showing certain folks concentrated in state prisons. What are we talking about here?

Bill Montgomery: Well, back in 2009, Arizona prosecutors commissioned an initial study, looking at demographic data of inmates to see whether or not our efforts to put those who are the most violent offenders in our community and those responsible for the most criminal harm, they were, in fact, within our prisons and we've seen since then an increase from 94.2% to 95.3% of that population falling within categories of either currently in for a violent offense or having had committed a violent offense and in for repetitive felonies. This isn't the first time they've committed a felony.

Ted Simons: What do those numbers mean to you?

Bill Montgomery: Well, what they mean to me is that we are focusing on the population of offender who should be incarcerated versus offenders that we're offering diversion to. Over the last three years in Maricopa County, we've offered diversion to 13,000 people. We want to distinguish between those we should be spending our tax dollars on to incarcerate and protect our community from versus those that we can give a second and sometimes, third and fourth chances to.

Ted Simons: What do the numbers mean to you?

David Euchner: There's two problems with the numbers. And then the third question is how can we keep people from getting back into prison? The first problem with the numbers is the way that the report categorizes violent offenses. Dr. Fisher was given criteria to put into the numbers that violent offenses count not just murder and rape and kidnapping, but also offenses like possession of a gun. You can be prohibited by having a felony DUI on your record. It's not a violent offense per se and the department of justice doesn't qualify this. What counts as a violent offense for Dr. Fisher's purposes the numbers he was given, the statutes he was given don't qualify as violent. So the violent numbers are inflated. Then the report conflates and repetitive offenses. Why do we have all these repetitive offenders and part of that is because we don't provide any opportunities for these people to have rehabilitation. If we have better probation services and there's one program that's been rolled out with federal grants, it's drug treatment alternatives to prison, and when those -- when people are allowed into that program, they have great percentages of success, far greater than the average probationer.

Ted Simons: I want you to respond on the metrics and the definition of a violent felony offense.

Bill Montgomery: We didn't dictate to Dr. Fisher what specific categories to use. We asked him to take a look at the prison population and I'll take issue, I don't want to wait for that person to fire that weapon before I get to prosecute him and put him in prison. If they're already a prohibited possessor which means they've committed a felony and they can't follow those rules, and then they're armed with a weapon, I don't want them to have a chance to harm anybody else in the community. I think that's the difference between criminal defense attorneys and prosecutors. We're charged with protecting the entire community. A defense attorney is charged with defending the criminals sitting next to them. We can quibble over what that might mean but if they're going to pick up a gun, I want them in prison. The additional metrics that we're looking at, even if we separate violent offenders from repetitive offenders, we're looking at 60% of those in prison are there are violent offenses or have committed a violent offense. Repetitive offenders are in excess of 70% and those populations mix together when you look at their criminal histories and this is objective data. You either are in for a particular conviction or you are not.

Ted Simons: And indeed it sounds as though they're saying the right people are being incarcerated for the right reasons.

David Euchner: We don't dispute that the right people are being incarcerated. What we dispute is whether everyone who's incarcerated is a right person. We submit that the wrong people are also being incarcerated in addition to the right, that the number of people who are the right people in prison is not 95% but significantly less. Now, whether an offense is violent or not, I guess that depends on how you create your definitions. Whether it was Dr. Fisher or appac that created the definitions, they're not correct. This isn't the way the federal government defines violent offenses. Also, they're not only including the conviction for which they're in currently but previous convictions, previous felony adjudications as a juvenile, offenses that are believed to be committed. It's not restricted to just the offense that they're in for now when they get considered violent. And I also -- I may be a defense attorney when I walk into the courtroom but I'm a citizen as well and I don't want violent people acting violently, either. The question is when somebody commits an offense that is a status offense, such as prohibited possessor, does that make them violent? And the answer is no.

Ted Simons: 85% must be served, a lot of folks have problems with that because they don't see the felonies as being the type that need 85% served. Do you think that's the reason we're seeing these numbers?

Bill Montgomery: No, in fact, if we could put that chart up, we can take a look and see what impact truth in sentencing has had. Truth in sentencing was passed in '93, went into effect in 1994 and shortly after that, we also had prop 200 which mandates substance abuse treatment for the first two drug possession convictions. And the trajectory for the increase was happening before those two went into effect and continued afterwards. If you look at that red trend line there, that's the crime right and since truth in sentencing was passed, we have seen a consistent drop and over time, where we're at right now, we're at historic lows for crime and we are exceeding the drop in crime across the United States. Now that in conjunction with everything else we're doing as prosecutors and focusing on the population is contributing to that. The other thing we need to figure is that truth in sentencing laws which resulted in about a 10% increase in the amount of time that people were spending in prison has from 1995 to 2010 and this is in the 2011 Fisher study, it's estimated that it has prevented roughly 1 million crimes, 1 million crimes, so that's 1 million victims who weren't victimized because people were incapacitated and could not commit crimes where they were in for that extended period of time.

Ted Simons: Looking at this chart, what are you seeing?

David Euchner: The data will show what you want it to show but let's look at what we have nationwide. Nationwide there has been a downward trend in commission of crime. It's not just in Arizona. It's nationwide and the initial report by Dr. Fisher and subsequent reports have committed the logical falsely of finding causation where none exists. They think because we have truth in sentencing and the crime rate falls, that one caused the other but when we look at other states that have implementing reform, New York repealed its Rockefeller mandatory minimum drug laws and even though there were less people in prison, the crime rate went down. South Carolina, Mississippi, Texas, hardly the bastions of left wing liberalism have implementing sentencing reform because people like Newt Gingrich say this is the right thing to do and they also see the same drop in crime, even though they have reduced levels of incarceration. The correlation, the fact that we have two data points of a decrease in the prison population or leveling off and the having truth in sentencing, they are not related.

Ted Simons: Not related?

Bill Montgomery: And for someone whose job is to advocate for their client, I appreciate the point. But the data is what it is and we're not just looking at the trend line, which for the last several years, Arizona's crime rates have been falling faster than the national average. So we're not simply following a national trend. However, other states are following Arizona's lead. We increased the threshold limit to charge someone with a felony for theft. Other states followed. We mandate substance abuse treatment for the first two drug possession use convictions. Other states have followed. We don't send people to prison for their first felony conviction in Arizona, unless they commit a very narrow range of offenses. You have to work very hard to go to prison in Arizona. That first time you're going to get probation and we've also seen a drop in the prison population from people who are being revoked on prison. So rehabilitation programs are working in that regard. I would agree with the third point earlier, though, and that we can look at what we're able to do with those who are going to leave prison because 35 sentenced as if you are the time offender. They've committed other felonies. But what can we do during prison transition time frames and what can we do with community correction models to try to prevent people from recidivism.

Ted Simons: Home sentencing, that chart may not change all that much at all if those were in place.

Bill Montgomery: They are now. We're doing it now.

Ted Simons: If more of those were in place.

Bill Montgomery: But there's no more to have more of. Again, when you look at who's in prison right now, the question I always ask, who do you want to let out? There are 131 people in there for possession of marijuana and you don't go to prison for possession of marijuana, unless you've committed a violent offense so who would you try to point at?

Ted Simons: We hear there are too many low-level criminal offenses in state prisons. And yet from the other side we hear there aren't that many people in there at all and the numbers show 95% violent and again, we can talk about what violent is, but it's still a step above some of these lower level crimes, valid?

David Euchner: Yes, and no. First if I could address Mr. Montgomery's point about my advocacy of a position because this report being released by appac, it was released last week and published six months ago, the purpose of releasing it now was to time it to influence the January legislative session beginning. And they have admitted that. It's right there in black and white. So that's the advocacy that's at play here but let me answer your question about how do we address who is going to prison but maybe shouldn't be. Maybe we should have sentencing reform similar to what the federal government implements. They have a sentencing guideline, a range that the judge is supposed to look within but if the judge thinks that the guidelines are too harsh, the judge can depart from the guidelines and if the prosecutor doesn't like it, the prosecutor can appeal. In Arizona on the other hand, we have guidelines that are rigid am. The judge cannot depart from those sentencing guidelines so basically, the sentencing range is being determined by a line-level prosecutor. Sure there's guidelines that Mr. Montgomery and his colleagues set but it could be a 26-year-old prosecutor who's making the sentencing decisions instead of a very experienced judge. If they're so sure that 95% of the people in prison belong there, what's the harm in giving that deference, that discretion to the sentencing judge? If it's correct that all the right people are there, the judge will make that decision, as well.

Bill Montgomery: I have questions about the report which delayed its release. So I don't care who said it was released in order to influence the legislature. It was my fault. But in terms of, you know, the people who are in prison now, they're in prison right now because of the system that we have. Determinate sentencing which guides judges on the sentencing has been in place for quite some time. It's not there for the good judges because they would do that anyway. It's there for judges who need that guide and each one of the different categories of offender based on prior felony convictions, there is a presumptive sentence that judges can depart from downwards or upwards based on the evidence.

Ted Simons: Great conversation. Good to have you both here. Thanks for joining us.

Bill Montgomery:Attorney and Member, Maricopa County and Arizona Prosecuting Attorneys' Advisory Council; David Euchner:Appellate Unit Supervisor and President, Pima County Public Defender's Office and Arizona Attorneys for Criminal Justice;

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