Arizona's prisons are packed. Building more would cost millions. Governor Janet Napolitano wants to lockup even more people. But others say it may be time to let a few out.
BY ROBERT NELSON
Arizona's prison system is in crisis.
The state's prisons are built to hold 26,000 inmates. They now hold more than 30,000.
Under Arizona's current sentencing laws, the state's prison population is expected to continue exploding with more than 1,000 additional inmates every year. By next summer, Arizona prisons are estimated to be short 5,200 beds.
Arizona now has the highest incarceration rate of any western state. About 500 of every 100,000 Arizonans are in prison, according to the U.S. Bureau of Justice Statistics.
To address the crisis, Governor Janet Napolitano, who's been both a state and a federal prosecutor, has proposed a prison expansion that would cost $700 million to add 9,134 beds at seven state prisons between 2004 and 2007. She wants legislators to immediately pump $26.4 million into the Department of Corrections as a stopgap measure.
This proposal comes as the state remains nearly $1 billion in debt.
Legislators began meeting this week in a special session designed to address the problems with both prison overcrowding and the beleaguered Child Protective Services.
But the overloading of the state prison system is a considerably more critical issue to the future financial health of the state.
An ad hoc committee of legislators has spent the last several months looking at alternatives to Arizona's present legal and penal system. There are myriads of ideas sprouting up across the country for creating a more effective and cost-effective justice system.
In fact, strapped with similar budget problems, numerous other states have moved away from increasingly severe prison terms.
For the first time in decades, several state legislatures have voted to relax and revamp sentencing codes, increase judicial discretion, promote rehabilitation over incarceration and increase good time credits along with numerous other measures aimed at reducing the number of inmates in their prison systems.
In the last year, a new catch phrase has been sweeping state legislatures. Democrats and Republicans, facing drastic budget cuts, are now "Smart on Crime."
Being "Tough on Crime" has proven to be an expensive failure.
Arizona legislators have yet to embrace the kinds of reforms that encompass being "smart on crime." But in this current special session -- and the debate likely will continue when the regular session begins in January -- legislators will be forced to make tough choices.
They can retain Arizona's comparatively harsh sentencing laws. To do so, though, they will have to spend hundreds of millions of dollars the state does not have.
Such spending has always come with high costs in a state government perpetually strapped for cash. In the past, any increase in prison spending in Arizona has directly correlated to a decrease in higher education spending, according to a study conducted earlier this year by the Arizona Advocacy Network, a local social justice think tank.
Legislators could choose to reverse a 25-year trend toward increasingly harsh sentences, a conservative-driven tough-on-crime legacy that is known around the country as the "Arizona experiment."
"None of this is going to be easy," says Republican Representative Andy Biggs, who sits on an ad hoc legislative committee examining prison reform ideas. "The only thing that's clear is that something must be done. If we sit and do nothing, we'll be in deep, deep trouble."
And the political will may be there for sweeping change. Although this special session may be overshadowed by Napolitano's less-than-inspiring spending proposal, numerous legislators promise they will attack the problem again in January.
"We were kind of puzzled that the governor brought her proposal out just when we were out trying to get ideas for something other than a bricks and bars' proposal," says Representative Ted Downing, a Democrat from Tucson who's also on the reform committee. "To be honest, what she's proposing comes from the kind of thinking that got us into this mess."
And nothing less than sweeping reform, Downing says, will likely get us out.
"To me, this 25 years of building and playing with the criminal code has been an experiment like our experiment in Iraq," says Downing, a University of Arizona sociology professor. "At some point you turn around and say, Hey, what's this all costing us?' Well, it's cost us the education of our children and it's looking to cost even more than that.
"So it's our job to find a more cost-effective way to punish, and find the smartest way to break the cycle of crime while protecting public safety. That's a hefty job. But we've got to do better."
Governor Napolitano's recently released plan for Arizona's prisons focuses primarily on the critical shortages DOC is currently facing.
About half of the $26.4 million in stopgap emergency funding will go toward providing temporary beds. Officials are scouring county jails and out-of-state private prisons for space the state can rent to take the overflow of Arizona inmates.
The money also would go toward recruiting and retaining staff at prisons that are dangerously short of manpower.
While effective in addressing critical shortcomings in the present system, though, critics of Napolitano's plan call it woefully inadequate in addressing the core problem: Arizona is sending an inordinate number of people to prison for sometimes outrageously long prison sentences.
"Her plan is very disappointing," says Donna Hamm, director of the prison reform group Middle Ground. "There are so many good, solid ideas out there and she comes up with this."
Napolitano does call for a few genuine prison reforms. She wants to expand the options available to judges and probation officers. Instead of prison time, she has proposed intermediate sanctions such as sending probation violators to jail for short stints, known as "shock incarceration," rather than forcing them back into prison to serve the remainder of their sentences.
To reformers and fiscal conservatives, the most disappointing aspect of Napolitano's plan clearly is her proposal to spend $700 million to add 9,000 prison beds over the next four years.
For Ted Downing and other legislators, moving quickly on profound sentencing and prison reform is not just about keeping Arizona from spending money it doesn't have. It's about readjusting the state's spending priorities that have for more than two decades steered away from education in favor of corrections.
"We will very soon be spending more per capita to incarcerate our citizens than to educate them," he says. "Is that really what we want to do?"
In April, the Arizona Advocacy Network, a social justice advocacy group, released a comprehensive study of the effectiveness of Arizona's tough sentencing laws as well as their effect on the state's funding priorities.
In essence, the study found that Arizona's quarter century of "tough-on-crime" policies had been an extremely expensive bust. The explosion of Arizona's prison population has not translated into a decrease in the crime rate compared to other states. Indeed, as crime rates across the country dropped in the 1990s, Arizona's dropped less than in states with much less expensive prison systems.
According to another study, this one by the Sentencing Project in 2000, researchers found that from 1991 to 1998, states with above-average prison growth saw smaller declines in crime rates than states with below-average prison growth.
The Advocacy Network study also found that much of the money spent to expand Arizona's prisons was drawn from state general fund dollars that would have gone to education.
Over the last 24 years, the study found, higher education and prisons have competed for the same chunk of general fund dollars, about a quarter of the state budget. In that time, the amount allocated for prisons more than doubled from 4.3 percent to 10.7 percent of the general fund, while higher education's cut dropped from 19.1 percent to 12.4 percent.
The spending gap between imprisonment and college spending becomes more profound for minorities. For example, for every dollar Arizona spends to pay for college for African-Americans, it spends $2.42 to incarcerate them. The state spends $1.54 per Hispanic for incarceration for every dollar it spends on education.
At the same time, Department of Corrections data shows that Arizona's tough crime laws aren't affecting the intended target. While proponents of long, mandatory prison sentences say they are pursuing repeat violent offenders, the majority of Arizona's prison population is made up of first-time, non violent offenders.
According to DOC data, 55.3 percent of Arizona's prisoners are serving time for non violent offenses, while 77 percent of those incarcerated are there for a first-time offense. Of the 11,000 non violent first offenders in Arizona prisons, nearly all were sent to prison because of Arizona's tough "Truth in Sentencing" guidelines, which mandates that all inmates serve at least 85 percent of their sentence, a sentence that is already typically much longer than those served in other states.
In fact, less than 10 percent of Arizona's prison population is classified as violent, repeat offenders.
Much of the rapid increase in the state's prison population has come from non violent drug offenses. There are now 5,341 people serving time for non violent drug possession convictions, which makes up 22 percent of the total prison population. That's a 10-fold increase from the number of people serving time for non violent drug offenses in the early '80s.
Women also make up much of the increased prison population.
While women make up 8 percent of the prison population, they account for more than 12 percent of the prison population growth since 1995. Seventy-six percent of those women are serving time for non violent, first offenses. Only one in 40 are classified as violent, repeat offenders.
At its current rate, Arizona will soon have the country's third-highest incarceration rate for women, after Mississippi and Oklahoma.
There is also a social cost to incarcerating non violent female offenders.
The majority of Arizona's female prisoners have at least two dependent children. Thirty-eight percent of male prisoners have two or more dependents.
While 90 percent of prison fathers report that their children are living with their mother, only 28 percent of female inmates reported that their children are now living with their father. About 10 percent of mothers report that their children have been placed in foster homes during their incarceration.
Extrapolating from state census figures, this means that as many as 35,000 Arizona children have a mother or father in prison and that as many as 5,000 have been displaced from their homes.
This disruption of the home very likely increases the children's chances of ending up in prison themselves. A 2002 survey of children in Arizona's Department of Juvenile Corrections showed that 76 percent of girls and 56 percent of boys had a sibling or parent in prison.
The damning statistics go on and on. And in all the data collected by New Times or prison reform advocacy groups, none of it points to success in the state's current crime policies and spending habits.
What the numbers clearly indicate is that something drastic must be done to create a criminal justice system that is just, economically viable and effective at improving public safety without harming other critical public institutions.
As Arizona's prison population increased by 5 percent per year in 2001 and 2002, with an estimated increase of another 10 percent by 2005, several other states saw their prison populations level out or decline.
Strapped with similarly crippling budget crises and exploding prison populations, states such as Michigan, Mississippi, New York, Virginia, South Carolina, Oklahoma and even Texas have attempted dramatic prison reform measures.
Interestingly, many of the strongest state prison reforms are being led by conservatives. Indeed, four Republican governors have decided to close prisons in their states. In the last two years, incarceration has become less an issue of punishment and more an issue of fiscal responsibility.
It has been a difficult political shift for Republicans and Democrats alike. To understand why politicians have been fearful of any perceived rollbacks of prison sentencing guidelines, all you need to remember is the name Willie Horton.
"There are a lot of political careers that have been ruined because somebody, in effect, put their political future in the hands of a convicted felon," says Biggs, a former prosecutor. "So Dukakis's release program might have been a 99 percent success, but then he had this guy who went and raped someone and he was finished politically. If somebody you release hurts somebody, you're in big trouble. It's absolutely imperative that you don't compromise public safety with any action that you take."
But these reforms in other states, none of which place violent, repetitive criminals such as Horton back in the community, seem to be working. And most of the myriad reform tactics other states have already used would be available to legislators during this special legislative session.
In 2001, Mississippi reworked its "Truth in Sentencing" laws, which had been modeled after those in Arizona. In doing so, Mississippi made 2,000 non violent prisoners eligible for parole by the end of that year.
With a similar move, Arizona could free up as many as 2,000 beds for more serious offenders. The state currently has 4,000 more prisoners than it is supposed to house.
Oklahoma's conservative governor Frank Keating has asked the state's Pardon and Parole Board to find 1,000 non violent inmates to release as a result of the state's budget crisis.
Virginia initiated a conditional release program for its elderly prisoners. According to data from the National Center for Institutions and Alternatives, elderly inmates cost three times as much to house as younger inmates. Arizona currently has 1,192 prisoners over the age of 55, which criminologists consider to be past a person's crime-prone years. Those prisoners are costing Arizona the equivalent of housing more than 3,500 younger inmates.
In Texas, where nearly 1,000 people were returned to prison each month for technical parole violations, state officials urged parole agents "to make more use of effective alternatives to parole revocation, utilizing intermediate sanction facilities and other preventive measures" to handle parolees who were doing poorly under community supervision. By the middle of 2000, parole revocations dropped by 26 percent.
In 2001, 3,267 prisoners were returned to Arizona prisons because of parole violations, many of which were only technical violations. Applying the Texas model to Arizona's prison population, 850 inmates per year could be kept from returning to prison.
Michigan made what is perhaps the most profound shift in sentencing philosophy among states in recent years. And the Michigan model may be the most telling for Arizona legislators. Like Arizona, much of Michigan's prison population explosion was caused by rigid drug imprisonment laws that became politically popular in the late '70s.
As Arizona instigated the first round of mandatory minimum sentences in 1978, Michigan enacted a law that gave life imprisonment without parole to anyone convicted of possession or delivery of 650 grams or more of heroin or cocaine.
What began as an attempt to net drug kingpins soon started netting anyone knowingly or unknowingly involved in drugs.
By 1997, 240 people sat in Michigan prisons on drug charges with no hope of parole. That year, a group was formed called Families Against Mandatory Minimums. It began challenging the Michigan laws. Its most powerful weapons were the stories of many of those serving life in prison.
One of the first people netted by the Michigan drug laws was Yodana Young, a 24-year-old college student and single mother who was pulled over driving her new boyfriend's car. The boyfriend, unbeknownst to her, it was later proved, was using her to transport drugs that police found in the trunk of the car.
In 1998, behind the stories of people like Young, legislators changed the "kingpin provision." After 21 years in prison, Young was released. Soon after her release, Young joined the staff of Families Against Mandatory Minimums.
Last year, Young and her coworkers at FAMM succeeded at changing Michigan's mandatory minimum laws. Nearly 1,200 non violent inmates became eligible for parole. The Detroit Free Press estimated the move would save $41 million each year.
Now, FAMM members are in Arizona lobbying the legislature to follow Michigan's lead.
"We felt we needed to begin organizing in Arizona because the state is facing many of the same issues as Michigan," says the group's executive director, Laura Sagers, in an interview from Washington, D.C. "It's important to get information to the public about who is actually going to prison and what is actually going on in the prisons. Arizona is clearly another state in crisis."
Joel Foster, the Arizona director of FAMM, has already testified before the legislative committee.
"Polls show that the majority of people want to return to a time of more judicial restraint and more treatment to address the underlying problems," Foster says. "It's our job to offer up some ideas on how to do that."
Along with Foster, legislators have already talked to members of the Arizona Advocacy Network, James and Donna Hamm of Middle Ground Prison Reform as well as numerous members of the Arizona criminal justice community.
From this battery of interviews, legislators such as Biggs, Downing and the committee's leader, Representative Bill Konopnicki, are just beginning to pull together a nebulous package of reform proposals. Napolitano's special session may have come too quickly for substantial bills to be written and passed. If so, their work will be pushed into the next session.
"We have been taking our job very seriously," Downing says. "And this is Republicans and Democrats working closely together to craft substantial plans. It may take some time, but we will succeed."
According to local prison reform leaders such as the controversial James Hamm, there is one problem with the recent push of national prison reform advocates into Arizona. They don't yet fully understand Arizona's labyrinthine criminal code.
"The devil, in our case, is most often in the details," says Hamm, the convicted murderer-turned-lawyer who, teamed with his wife, Donna, is arguably Arizona's most knowledgeable and influential voice for reform.
"It's not just about mandatory minimums. It's not just about Truth in Sentencing.' It's about how much power prosecutors have been given to pile up years on people and how little power judges have to craft punishments that fit the specifics of each case."
PHOTO IN STORY: (Caption) James and Donna Hamm, the brains behind Middle Ground's Prison reform ideas.
"It's critical that people looking at this problem look at precisely how the criminal code functions in Arizona," says Hamm, who received his law degree after serving 17 years for murdering a man in the early '70s in a drug deal gone bad.
Arizona's prisons are stacked up, he says, not because of Arizona's basic criminal code, outlined in Arizona Revised Statute 13-702, but because of all the potential aggravating factors for enhancing sentences outlined in the much-tweaked and complicated ARS 13-604.
At its heart, the basic criminal code was intended to mete increasingly severe punishment on repeat offenders, particularly in cases involving children or the use of a potentially deadly weapon.
In practice, though, the intention is often bastardized as prosecutors stack charges and aggravating circumstances against defendants. The law gives immense power to prosecutors to force punitive plea agreements. Prosecutors win because they keep cases out of court while still scoring lengthy prison terms.
"You'll often get a guy with some low-grade prior who does something fairly minor again and all of a sudden, if that guy goes to court, he's looking at 21 years because of some quirk in 702," Hamm says. "So the prosecutor can come in and say, Ok, we'll offer no less than 10 years. And the guy has to take it because he's looking at 21 if he goes to trial."
Take the case of 18-year-old Josh Mazion.
Mazion hit some ruts on a country road and rolled his car while driving buddies to their favorite drinking spot. Mazion wasn't legally drunk that night in 2000. His buddies, who were older than him, had asked him to drive. They all were drinking beer.
One of Mazion's buddies wasn't wearing his seat belt when the accident occurred. The young man was paralyzed when he was thrown from the vehicle.
Mazion is now in prison after taking a plea agreement to serve seven and a half years for the accident. While the prosecutor's offer seemed outrageous considering the incident, Mazion was facing a much larger sentence if his case of "aggravated assault with a deadly weapon" came to trial.
"How is this justice? How is this fair? Who could this possibly be helping?" asks Mazion's mother, Terry Mazion-Winter. "He was wrong, but is this worth wiping out a boy's college years and beyond? We're still in absolute shock."
Similar stories abound, each punching holes in the idea that Arizona's sentencing enhancement laws hit the target for which they were intended.
Presently, 18-year-old Eryk Dykert is awaiting trial for possession of six Internet photos of underage girls involved in sex acts. Dykert downloaded the photos when he was 17, but prosecutors waited until Dykert was 18 to charge him to ensure he'd face adult court.
He is looking at a maximum sentence of 144 years on six counts of possession. In Arizona, thanks to sentencing enhancements in the criminal code, all sentences for possession of child pornography must run consecutively, and each count carries a mandatory sentence of 10 to 24 years.
If he were given the minimum sentence, Dykert would not be eligible for release until he is 78 years old.
"Arizona has unquestionably the harshest Internet sex crimes laws in the country," says Dykert's attorney, Jason Lamm, who has handled dozens of Internet-involved cases around the country. "In Arizona, you can rack up more prison time in a couple seconds alone at home than a serial killer would receive for a month-long rampage."
The provisions regarding prior crimes also get used and sometimes abused.
Consider the case of Jeffrey Taylor, a reformed drug addict who now serves as program advocate for the Phoenix Rescue Mission, one of the few residential treatment facilities still available for people convicted of drug or alcohol-related crimes.
In the '80s, Taylor was the poster boy for the "Less Than Zero" age. He was a high-flying securities trader who got hooked on cocaine.
As his addiction progressed, he lost his job and ended up homeless on the streets of Phoenix doing petty crimes.
After being convicted of stealing a girlfriend's tuition money, Taylor was ordered into intensive probation and a six-month Salvation Army drug treatment program instead of prison. The program worked. After the program, Taylor began studying to get his teaching degree.
In recovery, though, Taylor decided to try to make right with some of the people he had wronged. When he was on drugs, he had stolen a girl's necklace and pawned it for $55. So he decided it was the right thing to do to send the $55 to the person he stole the necklace from.
The victim was not impressed. With proof from Taylor that he had stolen the necklace, as well as an appraisal from her brother, who was a jeweler, that the necklace was actually worth $300, the victim went to police wanting charges brought against Taylor.
In no time, prosecutors charged Taylor with the theft and, thanks to Arizona law, were able to classify the theft as a "historical prior." Taylor was looking at two years in prison.
But in an unusual move, the judge in the case played his own game. He dropped Taylor's prior theft charge to a misdemeanor, and then gave Taylor probation while ordering him to pay the victim the full-perceived value of the necklace.
"There are hundreds of people in Arizona's prisons who weren't lucky enough to have a judge who went that far to do what was fair in the case," Taylor says. "The prisons are full of people who just got chewed up by the system."
It's not just reform advocates and former prisoners who believe Arizona's criminal code is no longer just.
As program advocate for Phoenix Rescue Mission, Jeffrey Taylor has seen the power of intensive rehab first hand.
Bob Myers, who spent five years as the presiding Superior Court judge in Maricopa County before becoming the chief deputy for the Arizona Attorney General, says that, even in his new position as a top prosecutor, he believes much could be done to make Arizona's criminal code more fair and relieve prison overcrowding.
"This isn't about the genuinely violent, repeat offenders -- for those guys, the laws are just fine," Myers says. "But when you get below that, yes, there are problems. Judges do need more discretion to judge cases on a case-by-case basis. Particularly in drug and alcohol cases, it seems pretty clear you have a lot of people going to prison who would be better served with some sort of intensive probation and intensive treatment. But that option is not always available to judges."
Interestingly, as chief deputy for the state A.G.'s office, Myers is well aware of the tie between prison spending increases and decreased spending on education. It is now his job to protect the state against the numerous lawsuits being filed against the state for providing its children with unconstitutionally substandard education facilities.
"I can't even begin to count the total amount of money we're talking about here," Myers says of the lawsuits stemming from the Legislature's raiding last year of monies mandated for schools. "The argument is that the Legislature is not providing the funds necessary for education pursuant to the constitution. It begs the question for people: Where is that money going?"
Myers, along with numerous others, believes that instead of long, mandatory sentences, Arizona desperately needs a better system of drug courts and rehabilitation options.
To make those courts and rehabilitation effective, though, the state needs probation officers. But last year, 160 probation officers were cut out of the state budget.
It costs $54 a day to incarcerate a drug or alcohol offender. The cost is about $2 per day to the state if that person is on probation, Meyers notes.
"You make better use of drug courts," he says. "If you pee clean, you stay out of prison. You're in quick, you get an early disposition and you get diversion into treatment."
"But then you hit the other problem," he says. "The treatment programs are grossly underfunded. The money has got to be there for these programs because in the long run, they save the state an incredible amount of money and actually address the underlying problem."
Myers and other experts also want more judicial discretion in determining what are true aggravating circumstances.
"If a guy pulls out a weapon, or shoots a gun in the air, the prosecutors want prison, boom," he says. "But that simply is not always the best option available. Is there an underlying drinking problem? Is there something that can be done to address the behavior without prison? The judge needs to be able to look at the issues specific to the case."
Legislators have numerous other options to consider. Some are simple. Some, like the ones proposed by Middle Ground Prison Reform, are more complex fixes that get to the strange idiosyncrasies at the core of the Arizona criminal code and corrections system.
•Create an emergency release clause. Once the state's prisons reach a certain level of overcrowding, perhaps 110 percent (the prisons are currently at 116 percent capacity) state pardons officials would be forced to review the sentences of the thousands of Arizona inmates serving time for first-time, non violent offenses. Those deemed to be little risk to the community would be released. Thousands of non violent offenders have been released around the country in the last two years under similar laws.
•Give judges, not prosecutors, the authority to decide whether to try juveniles in adult court.
•Use home arrest with electronic monitoring as a legitimate alternative to incarceration for some non violent offenses. Technological advances in monitoring technology have made home arrest a much more viable and safe option than in years past.
•Reclassify the most minor Class 6 felonies as Class 1 misdemeanors. This move, argues James Hamm of Middle Ground, would significantly reduce the number of people serving excessively enhanced sentences for minor prior felony convictions.
•Give Arizona judges more latitude in allowing for sentences to be served concurrently. Under present law, there is the presumption that sentences must run consecutively.
•Increase the number of release credits available to prisoners, particularly for those serving time for non-repetitive, non violent offenses. Instead of all prisoners serving at least 85 percent of their sentence, Middle Ground proposes that non-repetitive, non violent offenders serve 65 percent if they prove to be model citizens. Middle Ground suggests that the 85 percent truth-in-sentencing standard remain for violent or repeat offenders.
•Push for more innovative solutions for probation violators. A large percentage of Arizona's prison population is made up of people who violated relatively minor stipulations of their probation. Governor Napolitano and others have suggested short, weekend-length "shock" jail terms for violators instead of forcing probationers to serve the remainder of their prison sentence.
•Prohibit prosecutors from treating convictions for separate crimes committed near the same time as "prior convictions."
•Shorten the expiration date for certain low-level prior offenses used for sentence enhancement purposes.
•Demand a "fiscal truth in sentencing." Representative Ted Downing is behind Middle Ground's idea that judges not only record the amount of time imposed at sentencing, but also the cost to the taxpayer for that full sentence.
•Create fiscal penalties for counties that exceed their quota of state prisoners. This could deter county prosecutors determined to make their political name by landing volumes of the most excessive sentences.
•Work toward an international treaty with Mexico to facilitate the transfer of Mexican Nationals held in Arizona, which make up about 10 percent of the Arizona prison population, to prisons in Mexico.
"We know this is incredibly complex, detailed stuff," Downing says. "But its complexity is only outweighed by its importance. We all must understand what's going on here so we can get a clear picture how to fix it.
"The bottom line: No matter how difficult it is, we've got to tackle it. The future of the state depends on it. In that sense, it's really simple."
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