Sat, Aug. 17

Lawmakers seek to change criminal law's sentencing rules

PHOENIX -- Seeking to reverse a 30-year trend toward tougher -- and longer -- prison sentences, some state lawmakers are moving to give judges more leeway in determining how long criminals belong behind bars.

But one senator already has vowed to use his new position to kill anything that eases criminal penalties. And a top aide to Gov. Jan Brewer said one specific change being suggested is all but certain to face a veto.

Rep. Cecil Ash, R-Mesa, who chairs a special House panel, said Wednesday there is ample evidence that some of the people now behind bars may not belong there, at least not for as long as the sentences judges were forced to impose. He said it is long overdue to look at the changes in the state criminal code that began in 1978 with restrictions on sentences judges can impose.

In that time, the state's prison population has ballooned from 3,377 to more than 40,000. And the Auditor General's Office said prison growth continues faster than population growth: In 1980, the state locked up one person for every 749 residents; by 2008 that figure reached one out of every 170.

Ash and Rep. Bill Konopnicki, R-Safford, both members of the study committee that met Wednesday, said the state's current budget situation, including a $2 billion shortfall over the next two years, just makes it all the more necessary to look at how Arizona is spending close to $1 billion a year on its prison system.

Sen. Ron Gould, R-Lake Havasu City, said any change in the criminal code approved by the House will have to pass through the Senate Judiciary Committee, which he will chair for the next two years. Gould said he will use his power to ensure the measures don't even get a hearing.

"Just because we're in a budget crisis doesn't necessarily mean that we need to let prisoners out of prison,' he said. "It's the basic function of government to punish evildoers.'

And Gould had no kind words about Ash who was a public defender for five years.

"He seems to have a warm and fuzzy spot for sex offenders,' he said, citing comments the lawmaker has on his personal web site defending his sponsorship of legislation to ease the requirement of some people to register for life as sex offenders. That bill died in committee.

Even if something manages to clear the Legislature, proponents of sentencing reform will have to deal with Brewer.

Gubernatorial lobbyist Scott Smith, who attended Wednesday's hearing, was noncommittal about how his boss feels about tinkering with those laws, many of which were approved during the 14 years Brewer was a legislator. But Smith said Ash is way off base in suggesting that one reform Arizona needs is to repeal laws that require consecutive prison terms for those possessing child pornography.

Ash specifically cited a 200-year prison sentence imposed in 2003 on high school teacher found guilty of possessing 20 separate images on his computer.

The lawmaker said the laws requiring consecutive 10-year sentences for each of the images -- a sentenced upheld by a divided Arizona Supreme Court -- is inappropriate. Ash said the trial judge should have had the discretion to sentence Morton R. Berger to concurrent 10-year terms.

"I do not believe that reducing the sentences for offenders that view child pornography is the best means to begin addressing the budget crisis,' Smith said. He said mandatory sentences were imposed for a reason.

"The public and legislators were upset with lenient sentences that were handed out,' he said.

Ash, however, said he is not deterred. He said he believes a consensus can be developed to remove some of the requirements for minimum sentences.

At the other end of the process, Ash also wants to revisit the "truth in sentencing' laws enacted in 1993 which spell out that inmates must serve at least 85 percent of their sentence before they are eligible for parole. He said that 65 percent may be more realistic.

A report by the state Auditor General's Office suggested there are alternatives to incarceration. Aside from revamping the sentencing laws and changing the earliest release date, it other options include home arrest, drug treatment facilities and even "day reporting' prisons where inmates go home at night, especially for those convicted of nonviolent offenses.

But who qualifies as nonviolent is in dispute.

The state report said that as of the end of last year, 49 percent of the more than 40,000 inmates in the prison system were there for violent crimes. Another 10 percent were sentenced for nonviolent offenses but were repeat offenders.

But Gould said he and Sen. Jack Harper, R-Surprise, took a closer look at the records of about 250 prisoners who the Department of Corrections classifies as serving time for nonviolent offenses.

"Most of those guys are violent criminals,' Gould said. "They pled to a lesser charge.'

Konopnicki, however, said that's not a valid measure. He said prosecutors often "stack' various serious charges with the specific goal of intimidating someone to plead to one of them and avoid a trial.

"When you look at how they charge (defendants), I think it's a little out of control,' he said.

A separate study done for the Arizona Prosecuting Attorneys Advisory Council, said nearly 95 percent of everyone in the prison system is either a repeat felony offender or has "a history of felony violence.

Ash called that study irrelevant, saying it does not address the underlying issue of whether the sentences imposed are appropriate.

Konopnicki said the state's finances underline the need to revisit the sentencing code.

"I believe we have a head-on collision coming in the budget policy,' he said.

"We can be tough on crime all we want to be,' Konopnicki said. But he said that has to be considered in the face of the rising prison population, the possible need for $800 million in past-due maintenance at prisons, and the inability of the state to recruit qualified corrections officers.