Joint Legislative Study Committee on the Criminal Code Revision Study: final report.

              Joint Legislative Study Committee

on the Crrrmnal . . Code Revision Study

Final Report

JOINT LEGISLATIVE STUDY COMMITTEE ON THE CRIMINAL CODE REVISION STUDY

FINAL RFPORT

INTRODUCTION

According t o Laws 1991, chapter 235, section 1, the Joint Legislative Study

Committee on the Criminal Code Revision Study was established to:

1. Study the reports submitted by the consultants authorized pursuant to

laws 1989, f i r s t special session, chapter 5, section 2, t o review the corrections

system and criminal code of t h i s state.

2. Devel op a written report i ncl udi ng findings and recommendations f o r

programmatic changes and l e g i s l a t i v e action.

3. Submit i t s report t o the governor, the president of the senate and the

speaker o f the house of representatives.

MEMBFRSHIP

The committee was comprised o f the following eighteen legislators:

Senate House

Senator Chuck Bl anchard, Co- chai r

Senator David Bart1 e t t

Senator Jim Buster

Senator Ann Day

Senator Bob Denny

Senator Stan Furman

Senator John Greene

Senator Nancy Hi 1 1

Senator Victor Sol tero

Representative P a t t i No1 and, Co- chai r

Representative Ernie Bai r d

Representative Frank " A r t n Cel aya

Representative Benjamin Hanl ey

Representative Phil 1 i p Hubbard

Representative Mark Ki 11 i an

Representative John Kromko

Representative Dave McCarrol 1

Representative Bob Williams

MEETINGS

The Joint Legislative Study Committee on the Criminal Code Revision Study met

ten times on the following dates. Meetings were held on September 11, October

10, October 16, October 31, November 13, November 14, November 21, January 2,

January 14 and January 27. The minutes f o r each meeting are attached as Appendix

A,'

' Formal minutes were not taken f o r the meeting held on November 21 i n

Tucson, thus no minutes f o r t h i s meeting are attached.

RECOMMENDAT IONS

The Joint Legislative Study Committee on the Criminal Code Revision Study made

the following recommendations. Those recommendations that amend statutory

sections are set out i n a b i l l d r a f t which i s attached as Appendix 8. Each

recommendation contains citations t o particular sections o f the bi 11 d r a f t where

appropriate.

RECOMMENDATION 1.

THE COMMITTEE RECOMMENDS THAT A STATUTORY CHANGE BE MADE AS DESCRIBED BELOW TO

STATE THAT ONE OF THE PURPOSES OF THE CRIMINAL CODE IS TO PROVIDE THE OPPORTUNITY

FOR REHABILITATION FOR PERSONS WHO COMMIT UNLAWFUL ACTS. ( A. R. S. 13- 101)

The language recommended by the Committee amends the statutory section that sets

out the purposes of the criminal code. Specifically, the section i s amended to

state that one of the purposes of the criminal code i s to provide the opportunity

f o r rehabil i tation f o r persons who commit unlawful acts. The 1 anguage a1 so makes

clear that nothing i n the statute creates a cause of action by inmates if they

are not being rehabilitated. This was added t o prevent lawsuits by prisoners

or others claiming the statute was not being followed.

RECOMMENDATION 2.

THE COMMITTEE RECOMMENDS THE STATUTES RELATING TO OFFENSES COMMITTED WHILE ON

RELEASE FROM CONFINEMENT BE AMENDED AS FOLLOWS ( A. R. S 13- 602.02)

1. Persons convicted of any felony offense involving 1) the use of a deadly

weapon or dangerous instrument t o create a reasonable r i s k o f serious physical

i n j u r y t o another person i n the course of committing another offense or 2) the

intentional or knowing i n f l i c t i o n upon another of serious physical i n j u r y that

creates a r i s k of death should, if the act i s committed while the person i s on

probation f o r a conviction of a felony offense or on any other re1 ease mechanism,

be sentenced t o 1 i f e imprisonment with no chance of release u n t i l the person has

served 25 years. ( A. R. S. 13- 602.02, subsection A)

Currently, commission o f any o f the following offenses while a person i s on

release status requires the person t o be given a 1 i f e sentence: 1) use or

exhi b i t i o n o f a deadly weapon or dangerous instrument; 2) a felony violation of

the statutes r e l a t i n g t o precursor chemicals 11; 3) a violation of the marijuana

statutes involving eight pounds or more of marijuana at the time of the seizure,

4) any felony violation of the statutes relating t o prescription- only drugs; 4)

any violation of the statutes relating to dangerous and narcotic drugs; and 5)

the use or involvement of a minor i n the commission of any drug offense.

2. Persons convicted of any felony offense, other than those contained i n

paragraph 1, involving discharge, use or threatening exhibition of a deadly

weapon or dangerous instrument f o r a use other than s e l f defense, the intentional

or knowing i n f l i c t i o n o f serious physical i n j u r y upon another, sexual assault,

a violation of the statutes r e l a t i n g t o marijuana, dangerous drugs or narcotic '

drugs that involves an amount of drugs greater than the threshold amount ( as

specified i n A. R. S. 13- 3401), or an offense involving the use of minors i n a drug

offense or possession or sale o f drugs on or near a school zone should, i f the

person i s on probation or any other release status because of the commission of

a felony, be sentenced t o the presumptive sentence f o r that offense and should

be required t o serve the entire sentence before being e l i g i b l e f o r release.

( A. R. S. 604.02, subsection B)

Currently, many o f these offenses f a l l under the l i f e sentence requirement

contained i n paragraph 1.

3. Any person convicted of committing any felony offense not included i n

paragraphs 1 or 2 above, while the person i s on release status, should be

sentenced to a term of imprisonment and should not be released u n t i l at least

two- thirds of the sentence imposed has been served. ( 13- 604.02, subsection C)

Currently, a l l other felony violations require the person t o be sentenced t o the

presumptive term and to serve the entire sentence imposed by the court.

RECOMMENDATION 3.

THE COMMITTEE RECOMMENDS THAT THE USE OF " HANNAH PRIORS" BE ELIMINATED BY

ENACTING LANGUAGE TO DO THE FOLLOWIM. ( A. R. S. 13- 604)

Statutory language i s deleted that allowed two or more felonies not committed

on the same occasion but consolidated f o r t r i a l purposes t o be counted as p r i o r

convictions f o r the purpose of enhancing the person's sentence. The 1 anguage

also makes clear that p r i o r convictions may only be alleged if the sentence was

imposed or suspended before the commission of the offense f o r which enhanced

punishment i s sought.

The recommendation t o el iminate " hannah priorsn i s i n response t o the Commi ttee's

concern that it i s used as a prosecutorial tool t o obtain plea bargains from

accused persons.

RECOMMENDATION 4.

THE COMMITTEE RECOMMENDS THE DANGEROUS CRIMES AGAINST CHILDREN STATUTES BE

AMENDED AS FOLLOWS. ( A. R. S. 13- 604.01)

1. The Court should have the discretion t o increase or decrease the

presumptive sentences i n paragraphs 1 and 2 by seven years. ( 13- 604.01,

subsection C)

Currently, the court can increase or decrease the sentences by f i v e years.

2. Persons who are convicted of a dangerous crime against children i n the

second degree or of sexual abuse as defined i n A. R. S. 13- 1404 are gui 1 t y of a

class 3 felony and mav be sentenced t o a presumptive term of imprisonment of ten

years. ( 13- 604.01, subsection F)

Currently, such persons shall be sentenced to a presumptive term of ten years.

3. The sentence imposed on persons convicted of a dangerous crime against

children should be consecutive t o any other sentence imposed provided the

offenses occurred on separate and d i s t i n c t occasions or involved more than one

victim.

Currently, the sentences are consecutive with no requirement that the offenses

occurred on separate and d i s t i n c t occasions or involved more than one victim.

4. The d e f i n i t i o n of " predicate felony" should be changed t o mean any felony

conviction involving the intentional or knowing i n f l i c t i o n of serious physical

i n j u r y o r the use or exhibition of a deadly weapon or dangerous instrument, or

a dangerous crime against children i n the f i r s t or second degree f o r which a

person has been convicted on a separate occasion.

Currently, the d e f i n i t i o n includes any felony ( conviction i s not speci f led)

involving c h i l d abuse, a sexual offense and a l l of the others 1 isted above. The

d e f i n i t i o n does contain the language " for which the person has been convicted

on a separate occasion."

RECOMMENDATION 5.

THE COMMITTEE RECOMMENDS THAT JUDGES BE GIVEN ADDITIONAL AUTHORITY TO INCREASE

OR DECREASE A DEFENDANT'S SENTENCE BASED ON AGGRAVATING AND MITIMTING

CIRCUMSTANCES. ( A. R. S. 13- 604.03)

The court should be a1 lowed t o increase a defendant's sentence by up to 50 per

cent i f three or more aggravating circumstances are found. This 1 a t i tude should

apply t o a l l sentences except sentences of l i f e imprisonment. ( A. R. S. 13-

604.03, subsection A)

Similarly, the court should be able to decrease the defendant's sentence by up

t o 25 per cent, or by up t o 50 per cent i f the state concurs, if the court finds

at least two mi t i g a t i n g factors. The authority to decrease sentences should not

apply t o cases involving dangerous crimes against chi 1 dren ( 13- 604.01), serious

offenses committed while released from confinement ( 13- 604.02, subsections A and

B), or t o felony offenses that create a reasonable r i s k of death or involve the

use o f a dangerous weapon or deadly instrument to create a reasonable r i s k of

serious physical i n j u r y t o another i n the course of committing another offense.

( A. R. S. 13- 604.03, subsection B)

If the cou'rt chooses to increase or decrease a sentence, it should state on the

record i t s reasons. A l l parties shall be informed p r i o r t o the time ~ f

sentencing if the court intends t o increase or decrease a sentence. ( A. R. S. 13-

604.03, subsections C and D)

Currently, the court has some authority to increase or decrease a sentence but

the discretion i s quite limited.

RECOMMENDATION 6.

THE COMMITTEE RECOMMENDS THAT THE COURT BE GIVEN THE AUTHORITY TO SENTENCE A

PERSON WHO HAS VIOLATED THE TERMS OF HIS PROBATION TO JAIL. ( A. R. S. 13- 902)

The court should have the option of sentencing a person who violates the terms

of his probation t o j a i l .

Currently, the court can sentence such a person t o j a i l as long as the person

has not or w i l l not serve more than 365 days i n j a i 1 .

RECOMMENDAT I ON 7.

THE COMMITTEE RECOMMENDS STATUTORY LANGUAGE BE ADOPTED THAT PROVIDES THAT A

PERSON WHO KIDNAPS A CHILD WITH THE INTENT TO COMMIT SEXUAL ABUSE I S NOT SUBJECT

TO SENTENC IN6 UNDER THE DANGEROUS CRIMES AGAINST CHILDREN STATUTES. ( A. R. S.

13- 1304)

The language i s i n response t o a concern raised during the committee that a

person who lays on a c h i l d with the intent t o commit sexual abuse may be

convicted of kidnapping ( a class 2 felony), and punished under the dangerous

crimes against children statutes. These statutes carry mandatory penalties.

RECOMMENDATION 8.

THE COMMITTEE RECOMMENDS THAT THE STATUTES RELATING TO SEXUAL OFFENSES BE AMENDED

AS FOLLOWS ( A. R. S 13- 1401, 13- 1404, 13- 1407, AND 13- 1410) :

1. THE DEFINITIONS SECTION SHOULD BE AMENDED TO CLARIFY AND CLEARLY

DISTINGUISH EACH OFFENSE.

2. CHANGES SHOULD BE MADE THROUGHOUT THE SEXUAL OFFENSES STATUTES TO

INCORPORATE THE NEW DEFINITIONS.

I

1. The d e f i n i t i o n section of the statutes relating t o sexual offenses should

include the following terms as defined below. ( A. R. S. 13- 1401)

A. " Direct sexual contact" means any direct touching, fondling or

manipulating o f any part of the genitals, anus or female breast by any part of

the body or any object.

0. " Indirect sexual contact" means any indirect touching, fond1 ing or

manipulation of the outer clothing or similar covering of any part of the

genitals, anus or female breast by any part of the body or by any object.

C. " Sexual intercourse" means penetration into the penis, vulva or anus

by any part o f the body or by any object.

2. The crime o f sexual abuse should be defined t o mean i n t e n t i o n a l l y or

knowingly engaging i n or causing a person t o engage i n direct or indirect sexual

contact with a person f i f t e e n or more years of age without the consent of the

person, and indirect sexual contact or the direct touching of the female breast

with a person less than f i f t e e n years of age.

Indirect sexual contact with a person f i f t e e n or older should be a class 6 felony

( 1.5 yrs/$ 150,000); direct sexual contact with a person f i f t e e n or older should

be a class 5 felony ( 2 yrs/$ 150,000); and indirect sexual contact or touching

the female breast with a person under f i f t e e n years o f age should be a class 3

felony ( 5 yrs/$ 150,000). ( A. R. S. 13- 1404)

Currently, the penal t i e s f o r sexual abuse are similar but the term and others

i n t h i s chapter are defined i n such a way that the same act could be prosecuted

under more than one statute. The proposed amendments t o t h i s chapter seek to

eliminate overlapping terms and definitions and to create a specific offense and

punishment f o r each v i o l ation.

3. Molestation o f a c h i l d should be defined t o mean i n t e n t i o n a l l y or knowingly

engaging i n or causing a person t o engage i n direct sexual contact with a child

under f i f t e e n years o f age, excluding direct sexual contact with the female

breast. Molestation o f a c h i l d should be a class 3 felony ( 5 yrs/$ 150,000).

( A. R. S. 13- 1410)

Currently, molestation o f a c h i l d i s a class 2 felony ( 7 yrs/$ 150,000) and i s

defined as knowingly molesting a c h i l d under fourteen years of age by d i r e c t l y

o r i n d i r e c t l y touching the private parts of the c h i l d or by causing the child

to d i r e c t l y or i n d i r e c t l y touch the private parts of the perpetrator.

4. It should be a defense t o a prosecution f o r c h i l d molestation o r c h i l d

abuse if both the defendant and the victim were between the ages o f fourteen and

eighteen and the conduct was consensual . ( A. W. S. 13- 1407)

Currently, the age range f o r consent being a defense does not include persons

who are eighteen years of age.

NOTE: The Comni ttee recomnended adopting the Washington age gradat ions f o r

determining when consensual sexual conduct could be used as a defense to a

prosecution. Unfortunately, Washington' s gradations could not be easily

incorporated into Arizona's statutory provisions. Thus the b i l l d r a f t does not

contain t h i s portion o f the Committee's recommendation. It i s the hope of the

Committee that t h i s issue w i l l be addressed as the b i l l proceeds through the

1 egi s l at i ve process.

RECOMMENDATION 9.

THE COMMITTEE RECOMMENDS THAT THE STATUTES BE AMENDED TO DISTINGUISH SHOPLIFTING

OFFENSES FROM BURGLARY OFFENSES AS DESCRIBED BELOW. ( A. R. S. 13- 1501)

A person commits burgl ary i n the t h i r d degree by entering or remaining unlawful l y

i n a nonresidential structure or i n a fenced commercial or residential yard with

the intent t o commit a t h e f t or felony. Because of t h i s d e f i n i t i o n , if a person

forms the intent t o s h o p l i f t a f t e r he has entered a store, he can be charged with

burglary, - which exposes the person t o a higher penalty than shoplifting.

Therefore, charging burglary may be used as a tool to gain a plea bargain from

the accused.

The language recommended by the committee amends the d e f i n i t i o n of " enter or

remain unlawfully" t o exclude a person who enters a premises that i s open to the

public during normal business hours and does not enter an unauthorized area of

the premises. This would prevent a person who shoplifts from being charged with

burgl ary .

RECOMMENDATION 10.

THE COClMITTEE RECOMMENDS THAT THE CLASSES OF THEFT BE AMENDED AS DESCRIBED BELOW

( A. R. S. 13- 1802):

Theft of property or services should be punishable as follows ( A. R. S. 13- 1802):

1. With a value of $ 25,000 or more, class 2 felony ( 7 yrs/ S150,000).

2. With a value o f $ 3,000 or more but less than $ 25,000, class 3 felony

( 5 yrs/$ 150,000).

3. With a value of $ 2,000 or more but less than $ 3,000, class 4 felony

( 4 yrs/$ 150,000).

4. With a value of $ 1,000 or more but less than $ 2,000, class 5 felony

( 2 yrs/ S150,000) .

5. With a value of $ 500 or more but less than $ 1,000, class 6 felony

( 1.5 yrs/ S150,000).

6. With a value o f less than $ 500, class 1 misdemeanor ( 6 mos/$ 2,500)

unless such property i s taken from the person of another or i s a motor vehicle

or firearm, i n which case the t h e f t i s a class 6 felony ( 1.5 yrs/$ 150,000)

A person who i s convicted of t h e f t of property or services with a value of

$ 100,000 or more should be prohibited from being released u n t i l he has serve at

least h a l f o f the sentence imposed by the court. ( A. R. S. 13- 1802, subsection

D 1

Currently, the classes of t h e f t are as follows:

1. With a value of $ 1,500 or more, class 3 felony ( 5 yrs/$ 150,000).

2. W i t h a v a l u e o f $ 7 5 0 o r m o r e b u t l e s s t h a n $ 1 , 5 0 0 , c l a s s 4 f e l o n y

( 4 yrs/ S 150,000) .

3. With a value of $ 500 or more but less than $ 750, class 5 felony ( 2

yrs/$ 150,000) .

4. With a value of $ 250 or more but less than $ 500, class 6 felony ( 1.5

yrs/ S150,000).

5. With a value of less than $ 250, class 1 misdemeanor ( 6 mos/$ 2,500)

unless such property i s taken from the person o f another or i s a motor vehicle

or firearm, i n which case the t h e f t i s a class 6 felony ( 1.5 yrs/$ 150,000)

There are no provisions requiring a person t o serve a specified portion of the

sentence f o r high- doll ar thefts.

RECOMMENDATION 11.

THE COMMITTEE RECOMMENDS THAT AN ENHANCED PENALTY BE ESTABLISHED FOR PERSONS WHO

RECEIVE A BENEFIT OF MORE THAN $ 100,000 FROM A FRAUDULENT SCHEME OR ARTIFICE TO

DEFRAUD ( A. R. S. 13- 2310)

Persons who receive a benefit of $ 100,000 or more from a fraudulent scheme or

a r t i f i c e t o defraud should be required to serve at least ha1 f of the sentence

imposed by the court before they are e l i g i b l e for release from confinement.

( A. R. S. 13- 2310)

Currently, there are no provisions requiring a person t o serve a specified

portion of the sentence f o r receiving a high- dollar benefit from a fraudulent

scheme or a r t i f i c e t o defraud.

RECOMMENDATION 12.

THE COMMITTEE RECOMMENDS THE STATUTES RELATING TO DRUG OFFENSES BE AMENDED AS

FOLLOWS. ( A. R. S 13- 3401, 13- 3405, 13- 3407 AND 13- 3408)

Currently, there i s no gradation i n sentencing with respect t o dangerous and

narcotic drug offenses similar t o the ones i n marijuana cases. I n cases

involving marijuana offenses, the felony c l a s s i f i c a t i o n depends on the weight

of the marijuana. Also, a person i s not exposed t o a mandatory sentence unless

the marijuana weighs at least eight pounds. With respect t o cocaine and other

drugs, there i s no such threshold.

The language recomnended by the comni ttee places into statute threshold weights

f o r dangerous and narcotic drugs, whi 1 e 1 eaving the threshold f o r marijuana at

eight pounds. Therefore, if a person i s convicted of an offense involving a

dangerous or narcotic drug, a mandatory sentence w i l l not apply unless the

offense involves an amount over the threshold.

RECOMMENDAT I ON 13.

WITH RESPECT TO THE ISSUE OF M I N I N G THE SENTENCES OF THOSE PEOPLE I N PRISON

FOR CRIMES COMUITTED UNDER A PREVIOUS CRIMINAL CODE, THE COMMITTEE RECOMMENDED

THAT THIS BE DEALT WITH THROUGH THE NORMAL LEGISLATIVE PROCESS OR THROUGH A STUDY

COMMITTEE .

RECOMMENDAT I ON 14.

THE COMMITTEE EXPRESSED INTEREST IN THE ISSUE OF ESTABLISHING A SENTENCING

GUIDELINE COMMISSION TO ADOPT SENTENCING GUIDELINES AND POSSIBLY SERVE AS AN

ONGOIN6 BODY TO CONTINUOUSLY EXAMINE THE CRIMINAL CODE, BUT FELT THAT THIS WOULD

TAKE MUCH MORE STUDY THAN WAS POSSIBLE AT THIS TIME.

RECOMMENDATION 15.

THE COMMITTEE RECOMMENDS THAT THE JOINT SELECT COMMITTEE ON CORRECTIONS REVIM

THE METHOD I N WHICH THE SYSTEM HANDLES PRISONERS WHILE THEY ARE I N PRISON AND

WHEN THEY ARE RELEASED

The Joint Select Committee on Corrections should review and make recommendations

for improvements to the programs that are avail able to inmates while they are

incarcerated in the Department of Corrections system and the programs avai 1 able

to inmates at the time of and immediately following their release.

The Joint Select Committee on Corrections i s compri sed of twenty 1 egi sl ators:

ten senators appointed by the President of the Senate and ten representatives

appointed by the Speaker of the House of Representatives .

APPENDIX A

Minutes from Criminal Code Study

Committee Meetings

ARIZONA HOUSE OF REPRESENTATIVES

Fortieth Legislature - First Regular Session

Interim Committee Meeting

JOINT LEGISLATIVE STUDY COMMITTEE

ON THE

CRIMINAL CODE REVISION STUDY

Minutes of Meeting

Wednesday, October 16, 1991

Senate Hearing Room 1 - 9: 00 a. m.

Cochairman Noland called the meeting to order at 9: 05 a. m. and the attendance

was noted.

Members Present

Senator B a r t l e t t

Senator Buster

Senator Day

Senator Denny

Senator Furman

Senator Greene

Senator Hi 11

Senator Sol tero

Senator Bl anchard, Cochai man

Representative Bai rd

Representative Cel aya

Representative Hubbard

Representative Kromko

Representative McCarrol 1

Representative W i 11 i ams

Representative No1 and, Cochai man

ers Absent

Representative K i 11 i an Representative Hanl ey

Soeakers Present

Terry Stewart, Assistant Director, Human Resources, Department of Corrections

( DOC

Dr. Daryl Fisher, Manager, Research Unit, Department of Corrections ( DOC)

Dr. Michael Block, Professor of Economics and Law, University of Arizona

Guest L i s t ( Attachment 1)

PRESENTATIONS:

Terrv Stewart. Assistant Director. Human Resources. De~ artment of Correct i onf

( DOC1 , presented the Department of Corrections' response to some comnents made

i n previous meetings on mandatory sentencing and i t s impact on prison population.

He directed the Membersr s attention to the comnentaries contained i n the Arizona

Department of Corrections Briefing dated October 1991 ( Attachment 2). He said

that if after discussion and study, the Comnittee determines that the mandatory

sentencing provisions i n the criminal code should remain unchanged, there needs

to be a recognition and commitment to the resources t o support the resulting

prison population.

JOINT LEGISLATIVE STUDY COMMITTEE ON

THE CRIMINAL CODE REVISION STUDY

10/ 16/ 91

M r . Stewart said his comments are directed toward the following reports: the

Knapp report published by the I n s t i t u t e f o r Rational Public Policy, Inc.

( Attachment 3), the Block report publ ished by the Arizona Prosecuting Attorneys'

Advisory Counci 1 ( Attachment 4), and the Mandatory Sentencing report publ i shed

by the Arizona Department of Corrections .

M r . Stewart related that DOC i s extremely concerned about assertions made on

prison projections, additional prison beds, and specification of the number of

mandatory sentences which are contained i n the Knapp report.

He said DOC w i l l conment on the concepts contained i n the Block report which

maintain that those sentenced to mandatory terms deserve to be sentenced, that

the indications are that those with p r i o r felony convictions deserve to be sent

to prison and that Arizona i s not among the most punitive i n sentencing.

Mr. Stewart said he feels that t o date, there have been no comprehensive analyses

that define how mandatory sentencing affects the Arizona prison system and which

presents objective data describing the impact of mandatory sentencing on the

entire prison system. He said he w i l l present an outline of the Mandatory

Sentencing report which DOC has prepared and w i l l distribute it when available.

Senator B a r t l e t t asked Mr. Stewart if the data contained i n the DOC study

indicates there i s a correlation between mandatory sentencing and the number of

felony convictions and incarcerations i n the State and would it make much

difference i n terns of growth i n prison population.

Mr. Stewart answered that DOC has attempted to isolate offenses by class and

1 ook at mandatory provisions versus nonmandatory provisions.

He said that Dr. Daryl Fisher analyzed the Knapp report and indicated that the

I n s t i t u t e for Rational Public Policy responded to Dr. Fisher's comments i n a

l e t t e r dated September 19, 1991 ( Attachment 5).

Senator Bartlett, along with other Members of the Comnittee, commented that he

had not seen the l e t t e r from the Institute. Staff was directed to provide copies

to the Members.

Mr. Stewart sumarized the DOC Briefing report on i t s comnentary on the Knapp

report on prison popul at ion project1 ons, prison construction programs and

mandatory sentencing. He a1 so discussed adult i n s t i t u t i o n a l population growth

trends and projections.

Cochairman Noland asked Mr. Stewart if DWIs are included i n the DOC projections

and he answered i n the affirmative.

Representative M i l l iams pointed out that Ms Knapp indicated that DWIs, etc.,

had been omitted from her report and had they been included, the figures might

have coincided with DOC'S figures.

Mr. Stewart declared that DWIs account for approximately seven per month of the

t o t a l and therefore would not s i g n i f i c a n t l y revise the numbers.

JOINT LEGISLATIVE STUDY COMMITTEE ON

THE CRIMINAL CODE REVISION STUDY

10/ 16/ 91

2

Representative Williams said that the issue i s confusing because Ms Knapp did

not c l e a r l y i d e n t i f y the minor offenses which were excluded from her report.

Senator B a r t l e t t noted that the DOC chart on prison population and construction

does not take into consideration any changes i n the sentencing guide1 ines or

changes i n the post conviction re1 ief system that might impact on the need for

additional prison space. Mr. Stewart said he agrees with Senator B a r t l e t t ' s

comments that fewer beds would be required i f something i s done to mitigate the

prison population increase. He added, however, that u n t i l the impact of that

i s f e l t , beds would s t i l l be needed.

Senator Greene asked Mr. Stewart if DOC regards the Knapp report as seriously

deficient and Mr. Stewart answered that with regard to the issues with which DOC

i s concerned, the report does not contain the necessary rigor to substantiate

the assertions and conclusions made.

Senator B a r t l e t t asked i f DOC has any recommendations on effective rehabi 1 i tation

of repeat offenders. Mr. Stewart responded that the recidivism rate for the

Arizona state prison system i s approximately 34 percent which i s very close to

the national average. He noted that the prison system cannot r e h a b i l i t a t e

anyone; the only thing that can be done i s to provide the opportunity for an

individual to rehabilitate himself. To that end, i n the budget t h i s year,

empha- si s has been pl aced on education and substance abuse prevention.

Representative Baird said he thinks there i s some misunderstanding that the 7,915

offenders i n prison under mandatory sentences would not be there without

mandatory sentencing. Because of the seriousness of the crimes comnitted, he

asked Mr. Stewart if, i n his judgment, these offenders would be i n prison even

if they were sentenced under some other provision where the judge had discretion.

After Mr. Stewart answered i n the affirmative, Representative Bai rd commented

that it would be inaccurate t o suggest that there would be an imnediate huge

reduction i n the prison population i f the offenders had not been sentenced under

mandatory sentencing. Mr. Stewart comnented that he does not agree. He said

that based on the length of time that i s being served by those on mandatory

sentences, it has resulted i n a 24 percent increase i n the prison population.

Representative Kromko said the emphasi s should be whether mandatory sentencing

reduces crime, not if it reduces the prison population. He said the proposal

when presented to the Legislature by the I n s t i t u t e of Rational Public Policy

inferred that the crime rate would be reduced as soon as mandatory sententes were

imposed. He said that, i n his opinion, if the crime rate does not substantially

change, then mandatory sentencing has to be judged a failure.

Representative Hubbard noted that t h e n appear to be wide discrepancies i n the

figures i n the different reports. Mr. Steurrt rep1 ied that every study except

the DOC report represents sampling as opposed to a review of the entire prison

population.

I n reply t o Representative Hubbard's question of whether those serving time under

mandatory sentences w i 11 serve thei r f u l l sentence, Mr. Stewart answered that

there are many re1 ease provisions ava i 1 able.

JOINT LEGISLATIVE STUOY COMMITTEE ON

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Dr. Darvl F i sher. Manaaer, Research Unit , Oeoartment of Correct ions ( DOCL,

announced that he has been with DOC since Auaust 1988. He said his backqround

includes a Ph. D. i n mathematics from Iowa S t ~ Uen iversity, employment wiih the

Iowa Department of Corrections as research supervisor, with the Iowa S t a t i s t i c a l

Analysis Center and with the Arizona Board of Pardons and Paroles as planning

director. He advised that while he was with the Iowa system, he received a grant

from the Bureau of Justice Statistics to travel around the country to discuss

tha concept o f r i s k assessment.

O r . Fisher advised that i n the study conducted by DOC, as of June 30, 1991, there

were 15,150 inmates and 7,915 of those inmates were serving mandatory sentences.

This figure d i f f e r s from the figure of 4,200 that i s published i n the Knapp

report and i s the result of the number of mandatory categories that were

considered and a1 so the number of offenders who were counted i n the individual

category. I n the OOC analysis, Dr. Fisher mentioned that the categories over1 ap

i n some cases.

Or. Fisher noted that i n terms of length of sentence f o r the same category of

inmates, analyses by DOC show that on the average, mandatory sentences reoul t

in maximum sentences twice as long f o r those with mandatories as those without,

that minimum sentences are three times as long, and that the expected lengths

of stay are 2.3 times as long. He said t h i s data i s validated by h i s t o r i c a l

comparison and shows that those inmates with mandatories are doing more time and

are bui ldinq up i n the prison population. He said if not f o r mandatory sentences

24.4 percent of the prison population would be released. Additionally, analysis

of data indicates that those inmates sentenced under the new code are doing 25.5

percent more time than those inmates sentenced under the old code.

Dr. Michael Block. Professor of Economics and Law. University of Arizona, said

that i n 1985 he was appointed by President Ronald Reagan and confirmed by the

Senate as a voting member of the7United States ~ entencfngC omnission and served

on that Comission u n t i l 1989 and that he i s the co- author of the Federal

Sentencing Guide1 ines that are now i n place. He advised that he has a Ph. D. i n

economics from Stanford University .

Dr. Block presented an overview of his report on felony sentencing which was

sponsored by the Arizona Prosecuting Attorneys1 Advisory Council ( Attachment 4).

He covered several myths that he said his report invalidates.

I t i n a touaha doesnl t work - that essential 1 v our. sentencina PiOcy I

doesn't W c hd if ferenca

Dr. Block said the s c i e n t i f i c evidence on sentencing i s t h a t getting tough

works. The cruci a1 question i s how much does it work, how much does i t

cost, and how much should we do.

Senator B a r t l e t t informed Dr. Block that his study skipped over the main

thrust of both the Knapp and the DOC coamaents, that people getting

mandatory sentences are getting 1 onger sentences than are necessary which

i n turn i s building up the prison population without any correlation to

any i ssue o f pub1 i c safety.

JOINT LEGISLATIVE STUDY COWITTEE ON

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10/ 16/ 91

4

Dr. Block commented that studies show that the crime rate i n Arizona was

lower i n 1990 than it was in 1978 when the Code became effective. He said

s c i e n t i f i c evidence shows that when you get tough, the crime rates decl ine.

In looki- ng at the Arizona Supreme Court's data on the proportion of felony

sentencings and imprisonment, Or. Block noted that i n 1978 before the Code

was i n effect, 30 percent of a l l felony sentencings involved prison terms.

I n 1990, 30 percent s t i l l involve prison terms.

I n his report, Dr. Block said he took a random sample of 1800 offenders

sentenced i n 1989 which showed that four out of f i v e offenders going to

prison have priors. He said his sampling shows that 68 percent of people

being sent to prison, excluding OWIs, are exposed to mandatories because

of t h e i r p r i o r felony behavior.

sentences i n Arizona are cnaotic and n o n ~ r o ~ o r t i o n a l

Or. Block said t h i s myth has been perpetrated i n part by the Knapp report

and said it i s his opinion that the study i s flawed i n i t s estimate of

the impacts of the mandatory sentencing on the disparity of sentencing

because it includes only a selected set of mandatories. In his sample,

Dr. Block said he arrived at an average f o r mandatories of 30 months, as

opposed t o 67 months as reported i n the Knapp report. He said that

evidence indicates that sentences are what one would expect i n terms of

the structure and that overall they are proportional.

The Arizona criminal code with i t s mandatory orov. i si. o n s. imrisons huae

ers o f f i r s t time nondanaerous offenders

Dr. Block maintained that analysis o f sample data indicates that

nondangerous, nonrepeat offenders are given the 1 ightest sentences and that

sentences increase w i th repetitiveness and dangerousness, so that dangerous

repeat offenders receive sentences over f i v e times as 1 ong as nondangerous,

nonrepeat offenders.

0 imrisonments i n Arizona are e x c w i v e sentences i n Arizona are widelv

gxcessive r e l a t i v e to the rest of the natiog

Dr. Block claimed that his sampling indicates that there i s no evidence

t o validate this.

~ entencinaa uidel ines. e s ~ e cail lv the Minnesota auidel ines. w i l l so1 v?

311 of our orlson oroblems

Dr. Block claimed that guidelines combined with a system of mandatories

may solve some technical problems with the structure of the system but w i l l

not solve the prison overcrowding problem.

Dr. Block announced that many people lean toward the Minnesota guidel ines

as a system that reduces manipulation of convictions by prosecutors and

a1 so reduces the prison population. He noted that the Minnesota guidel ines

are based on sentencing on real behavior independent of conviction offense.

JOINT LEGISLATIVE STUDY COMMITTEE ON

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5

This has resulted in a higher proportion of incarcerations in j a i l and a

smaller proportion of incarcerations in prison. It should be pointed out

that Minnesota i s restructuring i t s system t o include mandatories f o r

certain convictions.

Cochai rman Bl anchard asked Dr. Block about the correl at ion between the commitment

rate and the crime rate, and whether it i s better law enforcement, rather than

the code, which i s attributable t o a decrease i n the crime rate. Dr. Block

replied that i t ' s both. He indicated that the absence of a code, as in

Minnesota, makes prosecutors less 1 i kely to f i l e on some crimes and said if you

increase the l ikel ihood of going to prison, you'll get less crime.

Cochairman Blanchard comnented on the chart which assesses what people are

i n i t i a l l y charged with as compared to what they are ultimately convicted of and

asked Dr. Block if this i s a way to get around mandatory sentencing. Dr. Block

contended there was no way to determine this and said the evidence indicates that

d i f f i c u l t y of proof and the way the Code i s written leads to plea bargaining.

Dr. F i sher sumnarized OOC' s position by announcing that the Oepartment' s analysis

on mandatory sentencing indicates there is definitely an effect on the population

growth rate by the imposition of mandatory sentencing. The quantifying data

addresses the issue of where the prison population would be today if there were

no mandatory sentencing provisions in the statutes. He said the preliminary

estimate i s that approximately one- fourth of the population i s due to the

presence of the mandatory sentences above and beyond the normal provisions of

the code, controlling for the type of offender, whether violent or nonviolent,

the class of the offense, and the prior record. He contended that historical

data tends to support this i n terms of differences i n time served patterns

between the old and new code and that extensive data w i l l be presented in the

f i n a l report covering the p r o f i l e of the active population, data on admissions

and data on releases.

In response to Cochairman Blanchard's request that DOC do a mu1 ti- variate

analysis similar to that done by Dr. Block, Dr. Fisher answered that a multi -

variate analysis was done and that he w i l l consult with Dr. Block to t r y to

rep1 icate his analysis with his technique.

Cochai rman No1 and announced the dates and times of the next. hearings:

October 31 - 2: 00 p. m. - presentation by judges

Novendmr 6 - 6: 00 to 9: 30 p. m. - public testimony

November 7 - 9: 00 a. m. - public testimony

November 21 - 2: 00 to 5: 00 p. m. - public testimony ( Tucson)

6: 00 to 8: 00 p. m. - public testimony ( Tucson)

In answer to Representative Hubbard's quest ion, Dr. Block said that the Arizona

Prosecuting Attorneys' Advisory Council ( APAAC) funded the report at a cost of

$ 40,000. Representative Hubbard announced that he w i 11 investigate the use of

APAAC funds for such a report.

Representative Hubbard asked about " hannah priorsn i n other states and whether

they are the result of a legislative or judicial decision. Dr. Block replied

JOINT LEGISLATIVE SNOY COMMITTEE ON

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that he does not know how many states have " hannah priors" but that Minnesota,

a guide1 ine state, has something similar which was the result of a j u d i c i a l

deti sion implemented by the sentencing comni ssion.

In answer to Representative Hubbard's question, Dr. Block said that i n his

opinion, given our crime rate, the punishment levels of people i n prison are

not out of 1 ine with the rest of the nation. He inferred that s c i e n t i f i c

evidence done on a cross- section indicates that with a l l things equal, higher

sentences lead to lower crime rates and that higher punishments deter crime.

Senator Furman said that from a l l indications, " hannah priors" are used i n a very

small percentage of cases, that there's an inherent unfairness and injustice i n

" hannah priorsn, and that they have been used as a club to essentially force

those threatened with it to plea bargain. He asked i f Dr. Block would recommend

el iminating the use of " hannah priors". Dr. Block answered that used alone, they

don't change things much, however, " hannah priorsn are generally used i n

conjunction with other mandatories. He stated that every system has some way

of dealing with multiple offenses sentenced at the same time.

I n response to Senator Soltero's questions, Or. Block said he feels that

mandatories have a place i n the system i n many instances to discipline j u d i c i a l

decisions and t h a t h i s reconmendation f o r changing the criminal code would be

t o have shorter d e f i n i t e sentences f o r some crimes and substitute incarceration

for intensive probation.

Representative Williams stated that, i n his opinion, the Block report almost

nu1 1 i f i e s the Knapp report. He said that people are not w i l l ing t o pay for more

prisons and that he i s not convinced that increased sentences would deter crime

or drive the prison rate down.

Without objection, the meeting was adjourned at 12: 22 p. m.

( Attachments on f i l e i n the Office of the Chief Clerk. Tapes on f i l e i n the

Office of the Chief Clerk.)

JOINT LEGISLATIVE STUOY COMMITTEE ON

THE CRIMINAL COOE REVISION STUDY

7 10/ 16/ 91

-=- ARIZONA STATE SENATE

MINUTES OF THE

JOINT LEGISLATIVE STUDY COMMITTEE ON THE

CRIMINAL CODE REVISION STUDY

DATE: Thursday, October 31, 1991 TIME: 2: 00 p. m. PLACE: SHR 1

MEMBERS PRESENT

Co- Chai rman 81 anchard

Senator Bartlett

Senator Furman

Senator H i 11

Senator Soltero

Senator Buster

Senator Day

Senator Denny

Senator Greene

Co- Chai rman No1 and

Representative Baird

Representative Williams

Representative Cel aya

Representative McCarrol 1

Representative Hubbard

Representative Ki 11 i an

Represent at ive Hanl ey

Representative Kromko

Co- Chairman Blanchard called the meeting to order at 2: 15 p. m.

Judge Keddie, Yuma County, Superior Court, explained who would be testifying

before the Committee today on behalf of the judges and probation officers. He

then further explained that he felt it would be beneficial for the committee to

know some of these individuals backgrounds in regards to their experience in the

area of the Criminal Code Revisions.

Judge Keddie felt that the system is " out of whack" as a result of policies on

mandatory sentencing. He felt that the Code has given great discretion to the

prosecutors of this state, in turn the reduction of discretion of the judges.

He further felt that it is rationally applied at most times, and commended the

County Attorney in Yuma County for not exercising undue power in that area. He

felt that the judges should be able to exercise more di scretion in the area of

sentencing in particular.

Judge Keddie stated the following are specific areas that he felt should be

examined:

1. The practice of charging Hannah priors, which can result in enormous

penal ties with consequent pleading by some persons who might otherwise go

to trial.

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2 . Mandatory sentencing ought to be examined. Not opposed to a l l mandatory

sentences, but it should be reexamined i n p a r t i c u l a r areas. For example,

the area of drugs, possible gradation of the amount of drugs involved i n

an arrest. He f e l t t h a t more discretion should be given the judges i n

sentencing offenders. He f e l t t h a t no judge was reluctant t o exercise the

d i s c r e t i o n i n sentencing people t o prison.

Judge Scholl , Presiding Judge, Criminal Bench, Pima County, gave some of his

background. He f e l t t h a t certain areas o f the Code are u n f a i r and that the state

i s not wise t o continue enforcing them. He r e i t e r a t e d t h a t these comments are

h i s own opinion, but that opinion i s shared by a majority o f the judges i n Pima

County. He f e l t t h a t the greatest unfairness t o the people concerning the

sentencing under the e x i s t i n g Criminal Code i s t h a t some offenders are receiving

prison sentences i n cases where prison a1 ternatives should be f i r s t u t i l ized and

some offenders are r e c e i v i n g prison sentences f a r greater than t h a t which i s f a i r

and appropriate. He then gave two examples o f real cases t o support his opinion

on mandatory sentencing. His suggestion was t h a t greater sentencing and

d i s c r e t i o n should be s h i f t e d t o the judge. A necessary revision o f the criminal

code i s a mechanism which allows the judge t o remedy an inappropriate sentence

by departing from the mandatory sentencing requirements, He f e l t that the

present system did not provide s u f f i c i e n t safeguards t o insure fairness.

Judge Rei nstei n, Presiding Criminal Judge, Haricopa County, gave some of hi s

background. He spoke b r i e f l y about the l a s t revisions t o the Criminal Code,

which was done 13 years ago. He f e l t t h a t a t t h a t time the Code was a move i n

the r i g h t d i r e c t i o n . However, the Code today does not resemble the one that was

adopted i n 1978. Every year a new mandatory sentencing provision has been added,

usually t o address c e r t a i n community concerns. A f t e r 13 years, he feels it i s

time t o take another look at the Code and commended the Committee f o r doing so.

Judge Reinstein said t h a t he f e l t that the Legislature should ask themselves what

i s r i g h t f o r the State o f Arizona and i s the Criminal Code doing that. He does

not oppose a l l mandatory sentencing. He f e l t t h a t the system i s t o t a l l y

control l ed by the prosecution. The c o u r t u s u a l l y o n l y has discretion when the

prosecution allows it. He f e l t t h a t the prosecutors, f o r the most part, i n

Maricopa County do a good job and t r y t o be f a i r . However, he f e l t that they

get i n the habit o f using the heavy leverage t h a t the Cede allows them to use

because o f the burdens they are under. He spoke b r i e f l y about the p o s s i b i l i t y

o f using a guideline system, much l i k e the State o f Washington.

He a1 so f e l t t h a t other areas t h a t the Committee should look a t are Hannah p r i o r s

and the drug code. He f e l t t h a t there should be some d i f f e r e n t i a t i o n i n the

Code as t o the amount o f drugs t h a t are sold or possessed f o r sale. He also f e l t

that the dangerous crimes against children should be reexamined. He f e l t that

the mandatory sentencing did not necessarily need t o be looked at, but that the

minimum sentence should be reexamined. He f e l t that some of the provisions i n

the Code create an inequity. He stated that shopl i f t i n g i n Arizona i s not only

shopl i f t i n g , but a1 so burglary. Judge Reinstein . said t h a t the Committee should

look at the " Truth i n Sentencing" provisions. He f e l t that the judges should

be able t o exercise more d i s c r e t i o n f o r some of the mandatory sentences, for

example, the offenses t h a t are non- dangerous i n nature. He then discussed

Joint LegislaJjve Study Comnittee on the

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Page 3

intermediate sanctions, explaining that they are punishments. He said that many

people will reject probation and elect to go to prison because they know that

prison is easier and that they will get out in a lot less time in the Department

of Corrections system.

He closed his remarks by stating that the Criminal Code is a plea bargaining tool

for the prosecution. He felt that most prosecutors were fair, but others are

not. It has been 13 years and time for a serious review of the Code. He offered

the Committee any help that he could offer. He further stated that he has

examples, but for the sake of time would wait until they were asked for.

Mr. Gary Graham, Administrative Office of Supreme Court, Division Director, Adult

Services Division, gave some background information about his experiences. He

stated that his comments are coming from the perspective of the probation system

in Arizona. He gave the basic functions of the adult probation system in

Arizona.

He stated that public safety is the paramount concern of all of those in the

criminal justice system. No program, policy or law should be considered or

implemented that would compromise publ ic safety. There are crimes and criminals

for which imprisonment is both necessary and appropriate.

Mr. Graham spoke of the Knapp report in accordance to the recommendations of

intermediate sanctions. He felt that development of a range of intermediate

sanctions for the nonviolent, nonrepeti tive and nonpredatory offenders i s

meritorious. He stated that he did not know if these intermediate sanctions were

necessarily cheaper or would reduce overcrowding. He discussed, as an example,

the issue of illiteracy or addiction in the area of criminals that are criminals

by trade because of their illiteracy or addiction. He felt that the investment

in intermediate sanctions is an attempt to treat the illness not the symptoms

of criminal behavior.

Mr. Don Stiles, Chief Probation Officer, Pima County Adult Probation, gave some

of his background. He stated that intermediate sanctions were punishment options

considered on a continuum to fa1 1 between traditional probation and traditional

incarceration. It is envisioned that if the Committee chooses to enact

additional intermediate sanctions in Arizona that those programs would be

admi ni stered by probation. He sees the primary responsi bi 1 i ty the protection

of the public. Any intermediate sanctions should be structured in such a way

so that they can carefully screen and evaluate and determine which of the

offenders may be safely dealt with in the community sanctions without increasing

the risk and danger to the public. Few programs and treatment services exist

outside the metropolitan areas. He felt that the services available in the

metropol itan areas were not adequate to meet the needs of the numbers of people

that come under their supervision. If the Legislature makes the pol icy decision

to invest further in intermediate sanctions, there are a number of actions that

he would recommend. First, funding be provided to reduce the case load of

probation officers to a level of no more than 50 per officer. He felt that as

a result of that it would increase publ ic protection. Secondly, expand special

case loads and team supervision for special needs probationers. There are

Joint LegislaJive Study Comnittee on the

Criminal ~ ode'Revision Study

Page 4

increasing numbers of people coming under supervision with both alcohol and drug

addi ct i on probl ems. He would recommend that there be funding for presentence

and assessment activity of probation. The presentence investigation not only

involves the courts decision and sentencing but also a major tool i n the

probation officers development of a real istic supervision plan.

He spoke of the intermediate sanction referred to a day- reporting centers. These

programs are set up in such a way that the probationer that is unemployed is

required to report to that center each morning at an appropriate time just as

they would report to a job. There day is planned for them and they are involved

i n counsel i ng, education programs, vocational training and whatever programs can

be provided that meet the needs of that particular probationer and are at the

same time referred out for job interviews and placement opportunities.

Mr. Stiles further explained other forms of intermediate sanctions including

daytime centers, home arrest and drug treatment centers.

Representative Williams asked Mr. Stiles asked about the number of probationers

per probation officer. Mr. Stiles stated that he feels that 50 is a reasonable

amount to ask for, however, an even smaller number would be best. Mr. Stilks

a1 so explained some of the ratios involved in special cases.

Representative Noland asked Mr. Stiles if it is the probation officers or the

surveillance officers who actually go out and see probationers. Mr. Stiles

stated that it is both. The surveillance officers typically work a shift from

3: 00 p. m. to 11: OO p. m., and the probation officers will not see the offender

as often as the surveillance officer, but they also make home visits.

There was discussion between Senator Bay and Mr. Stiles regarding electronic

surveillance, such as home arrest. Mr. Stiles explained that it takes more

probation officers to handle electronic monitoring due to the fact that it

requires response during the night time hours.

Mr. Norman He1 ber , Chief Probation Officer, Haricopa County Adult Probation, gave

background about his experience. He discussed investments in intermediate

sanctions. He agreed with Mr. Stiles regarding the necessity for this sanctions.

He then fully explained the handout that was distributed to Committee members.

( Handout filed with original minutes)

Representative Hubbard, addressing Judge Scholl, stated that one of the major

reasons in doing the revision in 1978 was due to the discrepancies in the way

that 1 i ke- offenders with 1 i ke- hi stories were getting treated by the courts and

a response to those people who felt the discrepancy was due to liberal judges

or racial sentences and the changes were made so that there would be more uni form

sentencing. He stated that Judge Scholl made a statement that our state Code

is not being given uniformity. That was the entire idea of the change. Judge

Scholl explained that when a person commits one crime in Pima County and the same

crime in Maricopa County, they may not be treated the same, therefore, no, it

is not uniform throughout the state, much less within each county.

Joint L e g i s W v e Study Comni t t e e on the

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Page 5

Representative Hubbard asked Judge Scholl , if he were able, what two big changes

would he make t o the Code. Judge Scholl stated that more discretion should be

given to the judges and then make them accountable for t h e i r decisions.

There was then discussion between Representative W i 11 i ams, Judge Schol 1 , Judge

Keddie and Judge Reinstein regarding sentencing guidelines. Judge Keddie said

that he does not oppose sentencing guidel ines as such, given some conditions.

Judge Reinstein stated that i f Arizona would go to Federal sentencing guidel ines,

he would oppose it; however, if Arizona went t o guidelines such as Washington's,

he would favor it. He f e l t that what the Committee needed t o do i s what i s r i g h t

for Arizona. There are things that can be done r i g h t now w i t h i n the current

Code.

Senator Blanchard asked Judge Reinstein t o give some examples o f the cases that

he was r e f e r r i n g t o earl i e r i n h i s testimony. Judge Reinstein gave the Committee

several examples.

There was some discussion between Senator Denny and Judge Reinstein regarding

the f l e x i b i l i t y o f the Judge i n the cases that Judge Reinstein cited.

There was discussion between Senator B a r t l e t t and Judge Reinstein regarding the

differences i n the views o f the prosecutors verses the judges. Senator R a r t l e t t

stated that he f e l t t h a t it came down t o a matter o f j u s t i c e . He stated that

he f e l t t h a t the prosecutors would say that the system i s working because we are

incarcerating more people. Judge Reinstein stated t h a t he didn't feel that was

case. He f e l t t h a t maybe we are catching more people, b u t d i d n ' t f e e l that the

crime rate was being reduced.

There was additional discussion about the power struggle between the prosecutors

and judges. Judge Reinstein stated that when he goes i n t o the courtroom, he

takes it by a case by case basis. He f e l t t h a t the criminal bench i s a l o t

different from 1978. He f u r t h e r stated t h a t i n the State o f Arizona, a

prosecutor has the a b i l i t y t o change judges i f they are assigned t o a judge that

they do not l i k e . He also stated that the s t a t i s t i c s do not show how when a

prosecutor comes i n t o the o f f i c e and the judges r e j e c t t h e i r plea agreements

because they were too lenient.

Senator B a r t l e t t asked Judge Reinstein i f he agreed with B i l l Scholl's position

o f wanting the judges t o make the determination on sentencing and they make them

accountable. Judge Reinstein said that he does agree f o r non- violent crimes,

but i s not so sure about murder, rape, heinous crimes.

Judge Reinstein explained t h a t the Legislature was able to resolve the v i c t i m s '

r i g h t s l e g i s l a t i o n , when there was a l o t o f opposition and a l o t o f different

sides t o consider. He f e l t t h a t t h e c r i m i n a l code could be handled i n the same

manner.

There was discussion between Representative N i l 1 iams and Judge Reinstei n

regarding plea bargaining and the cases that are bargained down from violent to

nonviolent crimes.

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Senat0. r Soltero asked Judge Reinstein if he f e l t that stronger sentences were

a deterrent to crime. Judge Reinstein stated t h a t he f e l t t h a t i n some instances

that i s true. He stated that OUI statutes have r e a l l y made an impact on driving

drunk. He further stated that when people set out t o commit a crime such as

murder, rape, etc., they do not think about the sentencing they may receive.

Mr. Stephen Neely, Pima County Attorney, stated that he had been a prosecutor

for 22 years. He also gave additional background. He stated that he has four

chief deputies and they average 14 years between them. There i s nothing that

goes through h i s department that does not go through those four deputies.

He stated that he i s an advocate for public safety. He also added that the

judges are also advocates. He stated t h a t people i n the prison system have been

convicted beyond a reasonable doubt. He stated that he looks t o see i f he i s

e f f e c t i v e i s i n the streets, not the courthouse.

Mr. Neely brought. with him a 9- 1- 1 recording i n order t o show the Committee what

h i s o f f i c e i s a l l about, what protecting the v i c t i m i s a l l about. ( The

t r a n s c r i p t from t h i s recording i s f i l e d w i t h o r i g i n a l minutes.) He i n v i t e d the

Comrni t t e e t o consider t h a t the focus o f the conversation should be about victims,

1 i ke the woman on the tape t h a t we should be protecting. He further gave other

d e t a i l s about the case on the tape. He stated t h a t the person that was arrested

f o r breaking i n t o the woman's home had been arrested previously and was out on

the streets again. This i s the type o f person t h a t needs t o be put i n t o prison.

M r . Neely then gave the Committee several examples o f cases where offenders were

convicted and then released early t o then go on and commit other heinous crimes.

Mr. Neely stated t h a t a t the point t h a t mandatory sentences became e f f e c t i v e that

the crime r a t e stopped climbing. He stated t h a t he knew t h a t the present date

judges cannot be accountable f o r what the judges d i d before the mandatory

sentencing became e f f e c t i v e . He f u r t h e r spoke about how there are admini s t r a t i ve

p o l i c i e s i n place i n the prosecutors o f f i c e t h a t cannot be i n place i n the

courtroom - each judge i s e n t i t l e d t o run t h e i r courtrooms the way they see f i t .

Therefore, t h a t leaves a l o t o f room f o r discrepancies in each courtroom.

M r . Neely then discussed accountabil i ty. He stated t h a t he i s re- elected every

four years. The judges do not have that accountability. He f u r t h e r stated that

his only goal i s t o protect the public. He also said t h a t he f e l t that the

Committee's job i s t o create a pol i c y that i s t o p r o t e c t t h e State o f Arizona.

In closing, he i n v i t e d the Committee t o v i s i t h i s o f f i c e and actually see the

r o l e t h a t he plays.

There was discussion between Senator Buster and Mr. Neely regarding the Arizona

crime r a t e i n comparison t o other states.

Mr. Richard Romley, Haricopa County Attorney, stated t h a t a f t e r hearing the

previous testimony he i s concerned about the way the meetings are proceeding.

He stated t h a t he i s not sure what the issue i s that the Committee i s looking

Joint L e g i s k t i v e Study Comnittee on the

Criminal Code Revision Study

Page 7

at. He would hope that the issue be public safety. He stated that t h i s should

not be a mandatory sentencing issue, it should be a revision o f the criminal

code issue. Mandatory sentencing i s not the only thing i n the code.

M r . Romley supported what Mr. Neely had stated regarding the fact that there

are 200 Superior Court judges that do what they want t o do. He stated that he

f e l t it would be impossible under those circumstances to have uniform public

pol i c y o r accountabil i ty.

He f e l t that the system was not broken, yes, it needs some f i n e tuning, but it

i s not broken. He f u r t h e r explained other things that the Criminal Code held.

He brought up diversion programs, probation a c t i v i t i e s , day fines, and others.

He stated that he does be1 ieve i n intermediate sanctions, the question i s whether

the people i n the prisons are deserving of these programs. He f e l t that there

are very few intermediate sanctions that Arizona does not have already. But,

the bottom l i n e i s that are we e f f e c t i v e i n carrying out public policy. In

closing he stated t h a t Sam Lewis, i n answering a question o f who should be l e t

out o f prison, said that nobody should be l e t out o f prison, he d i d n ' t want any

of them as neighbors.

Mr. Romley wanted t o go on record saying that if t h i s Code works and the r i g h t

guys are i n prison and we are running out of prison space then we have t o b u i l d

more prisons.

Senator B a r t l e t t and Mr. Romley discussed the durational issue of sentencing.

M r . Romley stressed that . the long term solutions should be looked at. Senator

Bart1 e t t stated' t h a t he agreed and that he f e l t there should be more programs

for mental health, drug addictions and s i m i l a r issues.

There was extensive discussion between Senator B a r t l e t t and Mr. Neely concerning

prison space, and a1 ternatives t o incarceration. Mr. Neely stated that f o r one

he f e l t t h a t there should be degrees o f dangerous crimes against children.

M r . Romley stated t h a t he f e l t that looking at gradation would be a good idea.

He stated t h a t he f e l t t h a t the back end o f the system should be looked at. He

f e l t that the Board o f Pardons and Parole should be discontinued. People are

choosing prison because they w i l l get one sentence and be out i n a considerably

less amount o f time. He does not feel t h a t plea bargaining i s serving j u s t i c e .

Senator B a r t l e t t asked Mr. Romley if he agreed with any o f the suggestions

offered by the judges. Mr. Romley stated t h a t he f e l t t h a t some o f t h e i r

suggestions were very valid. He f e l t t h a t a l o t o f the mandatory sentencing was

i n need o f f i n e tuning i n the code.

Senator B a r t l e t t asked Mr. Neely the same question. Mr. Neely stated that a l o t

of the drug v i o l a t i o n proposals were very valid. He said t h a t he i s opposed t o

the philosophical debate t h a t i s oriented about protecting one half of one

percent o f the population a t the expense o f the other 99 and one half percent.

Senator Furman stated t h a t he f e l t that public safety i s a primary factor, but

Joint L e g i s W v e Study Comnittee on the

Criminal Code Revision Study

Page 8

it i s not the only factor. He f e l t that when there i s a sentencing discrepancy

o f 5 years or 35 years f o r the same crime that it needed to be looked at.

There was discussion between Senator Furman and Mr. Neely concerning plea

bargaining and how mandatory sentencing has affected plea bargaining. M r . Neely

stated that he would 1 i ke t o t a l k with Senator Furman at another time concerning

plea bargaining.

M r . Hubbard and Mr. Romley discussed using Criminal Justice Enhancement Fund

( CJEF) monies to d i s c r e d i t reports. Mr. Romley feels that the CJEF money i s

there t o enhance prosecutorial e f f o r t s and when dealing with a subject as

important as the e n t i r e criminal code, it i s d e f i n i t e l y appropriate.

M r . Hubbard stated t o Mr. Neely that he recently read an a r t i c l e that stated that

i n order t o help Mr. Neely, Mr. Twist was hired and was being paid $ 35,000 and

the money i s coming out o f CJEF funds. Mr. Neely stated that he has hired Mr.

Twist t o advise him on a wide array o f subjects. He was not hired to be a

lobbyist. Mr. Neely stated that he would provide Mr. Hubbard with a copy of Mr.

Twist's contract. Mr. Romley stated that he has also hired Mr. Twist to help

i n some areas, and he i s serving as a consultant not a lobbyist.

There was discussion between Senator Buster and Mr. Neely concerning the costs

o f incarceration versus not inearcerati ng criminals.

Chairman Blanchard apologized to Mr. Skelly who w i l l not be heard today.

Chairman Blanchard adjourned the committee.

Respectful 1 y submitted,

Jan V. Stapleton

Commi ttee Secretary

ARIZONA STATE LEGISLATURE

F o r t i e t h Legislature - F i r s t Regular Session

Joint Interim Committee Meeting

JOINT LEGISLATIVE STUDY COHNITTEE ON THE

CRIHINAL CODE REVISION STUDY

Minutes o f Meeting

Wednesday, November 13, 1991 and Thursday, November 14, 1991

Senate Hearing Room 1 - 6: 00 p. m. and 8: 30 a. m.

Cochairman Blanchard called the meeting t o order at 6: 13 p. m. and attendance

was noted.

Members Present

Senator Bart1 e t t Representative Baird

Senator Buster Representative Cel aya

Senator Furman Representative Hubbard

Senator Greene Representative Kromko

Senator Hi 11 Representative McCarroll

Senator Sol tero Representative Williams

Senator Bl anchard, Cochairman

Senator Day

Senator Denny

Members Absent

Representative Hanl ey

Representative K i l l i an

Representative No1 and, Cochairman

S~ eakers Present

John Wright, Citizen, representing himself, Phoenix

James Skel ly, Lobbyist, representing the Arizona Prosecuting Attorneys' and

S h e r i f f s y Association

Louis Rhodes, Executive Director, Arizona C i v i l Liberties Union ( ACLU)

Rhonda Jensen, Citizen, representing hersel f, Phoenix

Georgi a Marr, Middl e Ground

Carmen Brown, Middle Ground

Pat Matthews, Citizen, representing hersel f, Phoenix

Donna Ham, Director, Middle Ground

Bruce M i l ton, Citizen, representing himself, Phoenix

Paul E l l e r , Citizen, representing himself, Sun City West

Jerry Orcutt, Citizen, representing himsel f, Tucson

Robert Tucker, Chai man, Arizona Board o f Pardons and Paroles

Cynthia Ahumada, Citizen, representing herself, Phoenix

Pat W i 1 son, Director, Ex- offender Services

Tiny Phil 1 ips, Vocational Rehabi 1 i t a t i o n Counselor

Charlotte Ward, Middle Ground

JOINT LEGISLATIVE STUDY COMMITTEE ON

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11/ 13/ 91

Guest L i s t ( Attachment 1)

John Wriaht. Citizen. Phoenix, related his experience as a former Deputy Warden

at Florence and h i s thirty- one years being involved i n correctional work, the

past eighteen years o f which were dealing with juvenile offenders.

Mr. Wright noted that the current approach i n the criminal system i s toward

punishment rather than changing choices from wrong t o r i g h t by changing an

inmate's thinking, valuing and behavior. He said that many offenders are the

type who do not fear arrest and, i n fact, it i s t h e i r expectation or even r i g h t

of passage. He submitted that criminals know that crime pays, with minimal r i s k .

He f u r t h e r contended that prosecution and confinement do not deter future crime.

He noted t h a t Arizona i s near the top of the l i s t i n incarceration numbers, and

needs t o change the focus from r e t r i b u t i o n t o public safety. He said t h a t the

current Arizona criminal j u s t i c e system services the need f o r punishment without

any e f f o r t t o change the offender. He added that what happens t o the offender

while i n prison i s a t issue and i f the concern i s f o r public safety, then

assessing who should be confined and who should be subjected to moral conversion

should be addressed. Mr. Wright suggested that the time incarcerated be spent

i n a r e h a b i l i t a t i o n exercise aimed at changing the thinking process by changing

thinking, valuing and behavior.

Mr. Kromko asked Mr. Wright if his suggestions are r e a l l y feasible. Mr. Wright

responded t h a t he i s not r e f e r r i n g t o r e h a b i l i t a t i o n o f the e n t i r e 15,000 prison

population, but thinks there needs t o be a reassessment o f who goes t o prison.

He said t h a t he believes prisons are necessary f o r some people but i s n ' t sure

a l l the people there now are the ones who should be there.

Mr. Hubbard asked Mr. Wright f o r elaboration on what changes he would suggest.

Mr. Wright r e p l i e d t h a t punishment f o r punishment's sake i s usually counter

productive and has become a luxury taxpayers can no longer afford. He

recommended, instead, t h a t rehabil i t a t i o n would e f f e c t greater publ i c safety.

Mr. Williams wondered at what point i n the system there would be enough

information t o p r o f i l e an offender and i f it should be made avail able t o a judge.

Mr. Wright remarked t h a t r i s k assessment should be d r i v i n g a system focused on

public safety and should be incorporated p r i o r t o t r i a l as well as a f t e r t r i a l ,

and made available t o the prosecutor, defense and judge. He said that by

focusing on publ i c safety, something other than punishment i s being addressed.

He added t h a t i f a person i s at high r i s k as a repeat offender, and his r i s k

assessment points toward incarceration, then he should be incarcerated.

Senator Greene agreed t h a t r e h a b i l i t a t i o n probably makes sense, but said that

previous testimony has indicated that regardless o f r e h a b i l i t a t i o n , recidivism

does not decrease. He asked Mr. Wright t o explain the types o f offenders he

feels should not be i n prison. Mr. Yright c i t e d property offenders with no

h i story o f violence or people- re1 ated offenses as being worthy o f consideration

f o r a1 ternatives t o incarceration.

JOINT LEGISLATIVE STUDY COMMITTEE ON

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11/ 13/ 91

Senator Greene said that while rehabil i t a t i o n sounds r i g h t , he wonders if there

have been any studies indicating it has been successful. Although M r . Wright

did not have that information, he submitted that the current criminal system i s

not working and recommended t r y i n g something new.

Senator Greene repeated his comment that previous testimony indicates that

r e h a b i l i t a t i o n does not decrease recidivism and said that he i s concerned about

the c o n f l i c t i n g information being given out.

Mr. W i 11 i ams stressed what an enormous commitment it would take to rehabi 1 i tate

even a portion of the 15,000 prison population and asked how successful

r e h a b i l i t a t i o n would be f o r people who may not want t o be rehabilitated. M r .

Wright responded that he believes it i s the State's r e s p o n s i b i l i t y to t r y to

e f f e c t r e h a b t l i t a t i o n rather than do nothing.

Senator Hi1 1 asked f o r Mr. Wright's comments about incarceration o f drunk

drivers. Mr. Wright said that he believes there are other ways o f dealing with

drunk drivers rather than incarcerating them. He suggested that a monitoring

program would be one way.

Mr. Cel aya questioned whether shock incarceration has been e f f e c t i v e i n reducing

recidivism. M r . Wright said that while he has not had much experience i n t h i s

area, he doesn't believe shock incarceration i s l i v i n g up t o people's

expectations and that recidivism i s no lower than otherwise.

James Skellv. Lobbyist. Arizona Prosecutina Attorneys' and S h e r i f f s ' Association,

disagreed with previous testimony regarding r i s k assessment and suggested that

it could r e s u l t i n unintended consequences. He submitted that rehabi 1 i t a t ion

programs throughout the nation have resulted i n no change i n the recidivism r a t e .

He f u r t h e r suggested t h a t i f there wasn't a question of money, the State would

be b u i l d i n g more prisons, but because o f tough times i n the economy, it has been

decided alternatives t o incarceration should be studied. He said that when it

comes t o pub1i. c safety, it i s wrong t o follow t h i s trend. Commenting on

mandatory sentencing, Mr. Skelly noted that there has been a decrease i n

robberies i n both Phoenix and Scottsdale since the mandatory sentencing laws went

i n t o e f f e c t and emphasized that mandatory sentencing i s d e f i n i t e l y a deterrent

t o crime.

( Tape 1, Side 2)

Mr. Skelly spoke i n opposition t o returning t o the practice o f using j u d i c i a l

d i s c r e t i o n i n sentencing, and suggested that i n 1 i g h t o f bad decisions made by

some judges, it would not be advisable t o return t o t h a t system. He added that

he be1 i eves there are a1 ready a1 ternat i ves t o incarceration and whi 1 e he agrees

prisons are expensive, he feels the answer i s t o b u i l d cheaper prisons because

the more people who are incarcerated, the more the crime rate i s reduced. He

conceded t h a t building more prisons w i l l take more money, but said he feels

public safety warrants the expense. He submitted t h a t government has an

obl i g a t i o n t o spend the money t o incarcerate people who need t o be incarcerated.

JOINT LEGISLATIVE STUOY COMMITTEE ON

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3 11/ 13/ 91

Senator Blanchard suggested that i n attempts to evade mandatory sentencing, plea

bargaining i s being used to reduce the offense, which i n turn affects the

s t a t i s t i c s .

Mr. Williams asked Mr. Skelly i f the publ i c shares his views about building more

prisons, to which M r . Skelly answered affirmatively. He said that the average

Arizonian wants to see repeat offenders incarcerated for t h e i r crimes. He noted

that there are roughly 8,000 of the t o t a l 15,000 prisoners who are not repeat

offenders. He added that r i s k assessment i s d i f f i c u l t because of the plea

bargains which a l t e r the true offense and said that some offenders labeled as

non- repetitive may actually be repetitive but not i d e n t i f i e d because of the plea

bargain to a lesser offense.

Mr. Hubbard remarked that the Director of the Department of Corrections has

indicated he i s i n favor of changes to the criminal system. Mr. Skelly reasoned

that the Director's main concern as an administrator i s e f f i c i e n t operation of

the prisons and not the public safety and his r o l l as administrator of the

Department of Corrections i s to get s u f f i c i e n t money from the Legislature to

run the prisons effectively. Mr. Hubbard disagreed that the Director i s not

concerned with publ i c safety. Mr. Skelly explained that what he meant was that

while the Director may personally be concerned about publ i c safety, from an

administrator's standpoint, his major concern i s running the prisons e f f i c i e n t l y .

Senator Furman suggested that justice i s as important as public safety and

disagreed that mandatory sentencing i s working, because the system i s not honest

when it permits plea bargaining.

( Tape 2, Side 1)

Mr. Skelly stated that he thinks offenders should have to serve 90 percent of

t h e i r sentence i n prison and not be released i n as l i t t l e as a t h i r d o f the time.

He urged the committee members to remember that the more people who are

incarcerated, the less crime there i s . He added that there i s less crime today

i n proportion to the population i n Arizona than before the mandatory sentencing

1 aws were passed.

Senator Furman comnented that judges are compl ai n i ng that mandatory sentenci ng

laws have taken sentencing out of t h e i r hands. Mr. Skelly disagreed and pointed

out that judges can either accept or reject plea bargains.

Louis Rhodes. Fxecutive Director. Arizona C i v i l Liberties Union. ( ACLU1,

suggested that a person can find s t a t i s t i c s to substantiate any position,

depending on who i s reading the s t a t i s t i c s and what they are looking for. He

expressed support f o r judges making sentencing decisions rather than prosecutors

because he believes it i s important to maintain the balance of power among the

executive, l e g i s l a t i v e and j u d i c i a l branches.

Mr. Baird suggested a solution might be to modify mandatory sentencing by having

a minimum and maximum range f o r sentencing and then a judge could determine what

the appropriate sentence would be. Mr. Rhodes agreed that the suggestion has

JOINT LEGISLATIVE STUDY COMMITTEE ON

TljE CRIMINAL CODE REVISION STUDY

11/ 13/ 91

p o s s i b i l i t y and said that he i s not unhappy w i t h t h a t theory, but would prefer

not t o have any plea bargains.

Rhonda Jensen. Citizen. Phoenix, t e s t i f i e d as the wife of an inmate serving a

l i f e sentence and expressed her b e l i e f that prison sentences breed criminals and

that for the betterment o f the community, there should be shorter prison

sentences. She suggested that there needs t o be a system whereby judges can

consider both the crime and the offender and assess each case i n d i v i d u a l l y . She

urged committee members t o rethink the current mandated twenty- five to l i f e

sentences t o bring them more i n l i n e with the national average of eighteen years

and be made r e t r o a c t i v e f o r a l l the inmates serving 1 i f e sentences i n Arizona

prisons.

( Tape 2, Side 2)

G e o r ~ ai Marr. Middle Ground, t e s t i f i e d i n opposition t o the existing sentencing

code and the unfairness i n sentencing f i r s t - t i m e offenders.

Carmen Brown. Middle Ground, stated that something i s not working r i g h t . She

advi sed t h a t the people making out the presentenci ng reports are inexperienced

and have the power t o determine a person's l i f e i n a very short time without

understanding d i f f e r e n t cultures or knowing anything about the person they're

judging. She advised t h a t once an offender i s i n the prison system, he needs

a l o t o f help, whether with alcohol or drug counseling, therapy or education.

She noted that many prisoners do not know how or have the means t o improve

themselves and many 1 ives o f smart people are being wasted away. She suggested

that money should be put i n t o education and therapy rather than building more

prisons. She agreed with previous testimony regarding the unfairness of

sentencing f i r s t - t i m e offenders.

Mr. Bai r d disagreed t h a t presentencing reports are being completed by

i nexperi enced peopl e.

Pat Matthews. Citizen. Phoenix, t e s t i f i e d as the wife o f a long- term inmate.

She reported that Arizona locks up more people per capita than any other state,

but submitted c i t i z e n s are s t i l l no safer. She emphasized the need t o address

seeking ways t o help inmates develop s k i l l s t o help them 1 ive i n the community

when they're released from prison. She contended t h a t r e h a b i l i t a t i o n programs

do work and education, meaningful work experience and treatment f o r substance

abuse problems do a f f e c t recidivism. She admonished that Arizona has no serious

commitment toward education and inmates are forced t o be i d l e because of the

discontinuation o f work programs. Also, there are almost no drug treatment

programs i n Arizona prisons, which means that most o f the inmates incarcerated

f o r drug usage w i l l return t o that 1 i f e s t y l e when released from prison. She

urged comnittee members t o look at community supervision with the a b i l i t y t o pay

r e s t i t u t i o n as an a1 ternative t o incarceration. She concluded by saying that

i n other states inmates are paid a minimum wage or more f o r performing meaningful

work, which allows them t o make r e s t i t u t i o n and support families who otherwise

would be on we1 fare. She said that t h i s prepares the inmate f o r 1 i v i n g a useful

JOINT LEGISLATIVE STUDY COMMITTEE ON

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11/ 13/ 91

1 i f e once he i s out of prison. She urged committee members to seek programs t h a t

work and not put the criminal back on the streets with no change to t h e i r l i f e .

Donna Hamm. Director, Middle Ground, distributed a s t a t i s t i c a l report to

committee members ( Attachment 2). She related her background as a Justice of

the Peace, director of a juvenile treatment agency and wife of an inmate serving

a l i f e sentence. She said that since t h i s i s such a serious subject to consider,

she recommends that the committee continue to study revisions to the criminal

code and conduct hearings to gather maximum information. She stated that some

laws punish so severely they cause bitterness, and inmates are given no

opportunity t o become responsible people. She a1 so suggested that home arrest

be made an option f o r judges to consider and that the causes of crime be attacked

by providing education and treatment programs, as well as training inmates with

marketable ski 11 s f o r future employment.

( Tape 3, Side 1)

THE MEETING WAS RECESSED AT 9: 30 P. M. COCHAIRMAN BLANCHARD RECONVENED THE

MEETING ON NOVEMBER 14, 1991 AT 8: 35 A. M. WITH THE FOLLOWING MEMBERS ABSENT:

Senator Day

Representative Hanl ey

Representative No1 and, Cochai man

Representative K i 11 i an

Representative Kromko

Bruce M i l ton. Citizen. Phoenig, re1 ated the circumstances of his brother- in-law's

incarceration and what he feels i s the unfairness o f the length of the

sentence. He said that his brother- in- law was arrested f o r drugs, and although

he did not possess any drugs himself and was only with a group that had drugs,

he was sentenced to f i v e years i n prison with no p o s s i b i l i t y of parole. He

submitted that after a two- to three- year time period, the government i s wasting

money by continuing to incarcerate his brother- in- law and f i v e years i s excessive

f o r the nature of the offense. He said that as a taxpayer he i s not interested

i n more prison beds and favors individual review rather than mandatory

sentencing.

Paul F l l e r . Clt~ zen. Sun C . . i t v West, cited s t a t i s t i c s attributed to Sam Lewis,

Director o f the Department of Corrections, that 80 percent of the prisoners i n

Arizona p r i sons are nonviolent, nonrepeating offenders. He suggested that it

would be better t o have these prisoners doing something productive and making

r e s t i t u t i o n and paying taxes, rather than costing the state $ 17,000 per prisoner

each year.

Mr. Baird reminded Mr. E l l e r that many of these prisoners labeled nonviolent,

nonrepetitive offenders have plea bargained to reduced charges, so the s t a t i s t i c s

cited don't actually r e f l e c t the true picture. He further contended that some

whi te- coll ar crimes warrant prison time because of the pub1 i c y s expectations.

Mr. W i l l iams suggested that the cost of $ 17,000 per prisoner per year might be

a savings over the cost of the crimes that would be committed i f the inmate were

JOINT LEGISLATIVE STUDY COMMITTEE ON

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released. M r . El l e r responded that he be1 ieves the answer i s individual

assessment of each case.

Senator B a r t l e t t stated that the fact must be faced that there w i l l be a tax

increase t o b u i l d more prisons unless the code i s changed, but the determination

must be made as to which i s necessary.

Jerrv Orcutt. Citizen. Tucson, related the circumstances o f his son's sentencing

f o r c h i l d molestation. He said that because o f the circumstances involved, the

mandatory sentence of sixty- four years i s too severe.

Robertr% ead a position ,

paper prepared by the Arizona Board o f Pardons and Paroles regarding the Arizona

Criminal Code and Correct ions Study ( Attachment 3).

Senator Blanchard asked Mr. Tucker i f the Board has a position on the value o f

retaining a parole decision versus the t r u t h i n sentencing approach. Mr. Tucker

r e p l i e d t h a t the Board feels parole hearings are a necessary function that should

continue.

I n response t o questions, Mr. Tucker stated that the current criminal system i s

too compl icated and there are too many codes and too much d i s p a r i t y i n the codes.

He said t h a t many cases are m i s c e r t i f i e d and it i s not infrequent that

e l i g i b i l i t y i s i n question. He repeated that t h e l a r g e s t problem faced by the

Board i s too many codes.

( TiPe 3, Side 2)

Mr. Williams asked Mr. Tucker i f the Board i s able t o keep up with t h e i r case

load or i f it i s behind. Mr. Tucker said t h a t c u r r e n t l y the Board i s keeping

up with i t s load, but if cases continue t o escalate l i k e they have i n the past

few years, the Board w i l l not be able t o keep up with two- member panels and said

that he would recommend an increase t o three- member panels.

Cvnthi a Ahumada. Citizen. Phoenix, spoke about the f a l l acy that prison

rehabil i tates criminals and emphasized the need f o r job t r a i n i n g so inmates w i l l

be prepared t o secure employment when they are released from prison. She

commented on the necessity o f doing something about nonrepeti t i v e prisoners

being given long- term sentences. I n response t o questions, Mrs. Ahumada

recommended t h a t opportunities i n education and work ski 11 s be provided.

Pat Wilson. Director. Ex- Offender Services, commented on h i s twelve years i n

state and federal prisons and the problems inmates face when released with only

$ 50, no family and no contacts. He said they do not know where t o go or what

t o do. He stressed the value o f education and t r a i n i n g f o r job s k i l l s . He also

contended that mandatory sentencing results i n innocent people being 1 ocked up

because they confess t o something they didn't do and accept a shorter sentence

because they're a f r a i d o f taking a chance on g e t t i n g convicted and receiving a

longer , sentence. Mr. Wilson pointed out the need f o r half- way houses and

admonished t h a t prisoners are human beings too.

JOINT LEGISLATIVE STUDY COMMITTEE ON

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Tinv Phil1 i ~ s . Vocational Rehabil i t a t i o n Counselor, described her work with

people with emotional disabil i t i e s . She emphasized the need f o r psychological

and vocational evaluation i n the criminal system, which would aid counselors i n

guiding inmates i n t o areas of education where they can be successful. She said

that she thinks the current system i s cycling prisoners through without giving

them any sense of direction. She suggested that a twelve- step program would be

extremely beneficial i n the prisons and i s available at no cost.

Senator H i l l asked how the functionally i l l i t e r a t e can be reached. Ms Phillips

said that she thinks much can be learned by reviewing the forms prisoners f i l l

out, which can indicate proficiency i n grammar, spell ing, punctuation, etc.

She also suggested that the sooner the process of i d e n t i f y i n g the functionally

i l l i t e r a t e begins, the sooner it becomes clear what to do with the person.

Charlotte Ward. Middle Ground, spoke about her son who was sentenced to Florence

f o r f i v e years and who i s now i n the Yuma prison. She said that she agrees with

the idea of house arrest and f e e l s t h a t double- bunking aggravates problems. She

concluded by stressing the importance of a1 ternatives t o building more p r i sons.

The meeting was adjourned at 9: 55 a. m.

/ A/* & 44w ; f Z ?; it;, :$ l*'

Carolyn , Richter, Secretary

( Attachments on f i l e i n the Office of the Chief Clerk and with the Committee

Secretary. Tapes on f i l e i n the Office of the Chief Clerk.)

JOINT LEGISLATION STUDY COMMITTEE ON

THE CRIMINAL CODE REVISION STUDY

11/ 13/ 91

MINUTES OF THE

JOINT LEGISLATIVE STUDY COMMITTEE ON THE

CRIMINAL CODE REVISION

DATE: Thursday, January 2, 1992

TIME: 9: 30 a. m.

PLACE: House Hearing Room 3

Cochairman Noland called the meeting to order at 9: 40- a. m. and attendance was

noted.

Members Present

Senator Bartlett Representative Bai rd

Senator Denny Representative Cel aya

Senator Furman Representative Hubbard

Senator Greene Representative Killian

Senator Hill Representative Kromko

Senator Sol tero Representative No1 and, Cochairman

Senator Blanchard, Cochairman

Members Absent

Senator Buster

Senator Day

Representative Hanl ey

Representative McCarrol1

Representative Williams

Representative Noland stated the purpose of this meeting was to have general

discussion among the Committee members regarding significant areas in the

criminal code revision study and to determine if there was a consensus among

the Committee members. Representative Noland said the Committee would take

additional public testimony at a later date.

Senator Blanchard informed the Committee there was a " rump group" formed that

included judges, prosecutors and defense counsel from the criminal justice

system. Senator Blanchard said this group was meeting to determine other areas

o f consensus that needed revision i n the Criminal Code. Senator Blanchard

informed the Committee that Judge Ronald Reinstein and Steve Twist were present

to answer questions from the Committee regarding the rump group's work, but at

this time they were not ready to make recommendations to the Committee.

Representative Noland noted the Committee was working beyond their original

timeframe for completion of the report and that legislation would need to be

drafted, but it was important for the Committee to allow adequate time to hear

from every segment involved in the study.

The fol lowing area was presented to the Committee by Representative No1 and for

discussion:

I . Need for gradation of sentencing based on the severity of the

offense for drug offenses.

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January 2, 1992

Page 2

Senator Blanchard informed the Committee that currently, i f a person i s charged

with possession f o r sale o f any drug other than marijuana, there i s no quantity

requirement before the mandatory sentence was imposed. Senator B l anchard

informed the Committee that the quantity requirement f o r marijuana i s eight

pounds. Senator Blanchard said there was a different problem with the

commercial s e l l e r that had a p r o f i t motive and dealt with much 1 arger amounts

than the addict s e l l e r . Senator Bl anchard suggested the Committee consider a

threshold amount before the mandatory sentence was imposed f o r drug crimes such

as possession for sale, s i m i l a r t o what i s i n place f o r marijuana. Senator

Blanchard said i n t h i s manner, judges could d i v e r t f i r s t - t i m e addict sellers and

t r e a t them d i f f e r e n t l y than the b i g commercial sellers.

Representative Noland c l a r i f i e d t h a t the threshold amount t o be set would not

be 1 i m i ted to addicts. Senator Blanchard agreed and explained the federal

sentencing model also had thresholds before a mandatory prison term was imposed

and that a judge could s t i l l impose a lengthy prison term, but the issue was

whether there should be a mandatory sentence.

In response t o Representative Kromko, Senator Bl anchard said t h a t possession f o r

use i s treated very d i f f e r e n t l y than possession f o r sale and the mandatory

penalties i n the code do not apply f o r use. Senator Blanchard said that his

focus was on the mandatory penalties and when they apply. Senator Blanchard

informed the Committee that i n the federal system a mandatory prison term was

imposed based on the sale of 12 pounds of marijuana and then a conversion chart

was used t o deal with other drugs. Senator Blanchard informed the Commi ttee

that Arizona adopted an eight pound system and one approach would be to take the

federal equivalency charts and d i s t i n g u i s h what the threshold should be for a

mandatory prison term to be imposed f o r possession o f cocaine or other drugs.

Representative Noland suggested the S t a f f provide f o r the Committee a chart with

the eight pound guide1 ine and the Federal conversion level on a gradation basis.

Senator B a r t l e t t expressed the need f o r the Committee t o proceed with caution

i n addressing changes t o the structure o f the criminal code and t h a t it appeared

the Committee was " t i n k e r i n g on the edges of mandatory sentencing." Senator

B a r t l e t t questioned the r o l e o f the Legislature t r y i n g t o " micromanage" the

circumstance o f a crime and i t s punishment.

Senator Greene stated that there was some feeling that the Committee did not

need t o make a fundamental change i n the criminal code. Senator Greene

emphasized t h a t the drug area was a p a r t i c u l a r l y d i f f i c u l t one and agreed with

Senator Blanchard's suggested approach.

Representative Hubbard questioned i f the Committee wanted t o " t i n k e r " with the

criminal code or i f s i g n i f i c a n t changes were planned.

Representative No1 and reminded the Committee members t h a t t h i s meeting and

future meetings were t o get the Committee members' suggestions and t o look at

the main areas where change would el iminate problems. Representative No1 and

said the Committee heard pub1 i c testimony and she had talked t o people i n the

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January 2, 1992

Page 3

criminal j u s t i c e system t o determine the areas that needed revision, but the

Commi t t e e needed to have further discussion i n order t o make some decisions.

Representative Noland said one concern was how t o create a method of

a c c o u n t a b i l i t y f o r judges, once sentencing discretion was given t o the judges.

Representative Baird questioned whether the Committee should decide on

" wholesale changes" and go t o a simple guideline system and give the discretion

e n t i r e l y back t o the judges. Representative Baird recommended the Committee

move cautiously and take care of the problems that existed. Representative

Baird stated that he was not opposed t o making d r a s t i c changes i n some areas,

but he f e l t that some mandatory sentencing needed t o be retained.

Senator B a r t l e t t said with the present system, there was an enormous amount of

money spent on a few people and t h a t could d i s t o r t the analysis o f what the

Committee needed t o do. Senator B a r t l e t t added t h a t he would l i k e to see some

type o f forum t o allow f o r a continuing discussion t h a t included the people

involved i n the criminal j u s t i c e system.

Representative Hubbard said he f e l t the thrust o f the problem with the criminal

code was t h a t l e g i s l a t o r s were held too immediately accountable t o the pub1 i c .

Representative Hubbard stressed there were spikes of severity i n the sentencing

structure. Representative Hubbard said that the Legislature l e g i s l a t e s to the

few and not t o the many. Representative Hubbard concluded there was a lack of

c o n t i n u i t y w i t h i n the criminal code.

The next area f o r discussion was:

11. Need f o r gradation o f sentencing based on t h e s e v e r i t y o f the

offense f o r sex offenses.

Representative Noland s a i d t h e Committee received a l o t o f testimony regarding

t h i s area and suggested the Committee consider a more severe level o f punishment

f o r sex offenses committed against children that are o f a heinous nature and for

repeat offenders. Representative Noland said those offenses should be handled

i n a d i f f e r e n t manner than " touching" offenses.

Senator B a r t l e t t stated there was a need t o make some d i s t i n c t i o n between the

true pedophile and those persons t h a t were capable o f change. Senator B a r t l e t t

acknowledged the d i f f i c u l t y o f making t h a t d i s t i n c t i o n i n the law but said that

he had conversations with various people and they f e l t the d i s t i n c t i o n should

be less with the repeat offender and more with the nature o f the r e l a t i o n s h i p

and the circumstances surrounding an offense.

Representative Noland said t h i s issue was examined i n the oversight committee

on Child Protective Services and the Commi t t e e should consider involving peopl e

from the j u v e n i l e court system f o r some input regarding t h i s area.

Representative Baird informed the Committee that because o f the severity of

mandatory sentencing, there was no intervention from family members t o bring i n

the a u t h o r i t i e s when an offense took place. Representative Baird said the

J t . L e g i s l a t i v e study Committee on the

Criminal Code Revision

January 2, 1992

Page 4

Committee was going t o have t o take some p o l i t i c a l r i s k s and make the necessary

decisions t o protect the children.

Representative No1 and said that i n the Tucson prison complex, almost ha1 f o f the

inmates were sex offenders and one problem was there was no t r a n s i t i o n f o r the

prisoners before t h e i r release from prison back i n t o the community.

Representative Noland informed the Committee that she had information from the

Department of Corrections ( DOC) regarding three minimum security faci 1 i t i e s and

an order had been issued t o begin reducing the number o f beds that were taken

by sex offenders i n the Tucson f a c i l i t y .

Senator Greene cautioned the Committee against making a d i s t i n c t i o n between a

pedophile and a sex offender because t h i s area was not an exact science.

Senator Greene suggested the Committee focus on the appropriate punishment for

behavior t h a t was offensive t o society and not become psychologists.

Wsnal d Rei nstei n, Presiding Crimi nal Judge o f Mari copa County Superior Court,

informed the Committee t h a t the rump group had met several times and included

representatives from the criminal j u s t i c e system and w i l l include

representatives from DOC and the Parole Board a t future meetings. Judge

Reinstein said t h a t there was some p o s i t i v e give and take within the group,

especially i n the area of sex crimes. Judge Reinstein said he and Gary Husk,

from the Attorney General's Office were working together on t h i s issue, and they

found there were portions o f the code where there were problems with the

d e f i n i t i o n s because there could be the same type o f conduct f o r various

offenses. Judge Reinstein gave the Committee some examples of the problems the

d e f i n i t i o n s could cause.

In response to questions from Senator B a r t l e t t i n regard t o making a d i s t i n c t i o n

between offenders, Judge Reinstein gave an example o f a sexual offense that

i nvol ved sexual intercourse and how society demanded there be some punishment,

but the issue was whether there was a need f o r the mandatory f l a t time or " 15

year bottom" f o r t h a t offense. Judge Reinstein said it may require another look

at the range o f sentences f o r t h a t type o f offender.

In response t o Representative Noland, Judge Reinstein said the rump group had

two meetings scheduled f o r next week and some o f the issues should be

" c r y s t a l l i z e d . " Judge Reinstein emphasized that the rump group did not have a l l

the answers and t h i s was a l e g i s l a t i v e determination and they could only make

recommendations t o the Committee based on t h e i r experience.

Representative No1 and informed everyone present, i f they had recommendations f o r

these areas or any other areas, t o submit them t o the Committee.

The next - area f o r discussion was:

111. P r o h i b i t i o n against charging shop1 i f t i n g offenses as burglary.

Senator Blanchard stated t h a t t h i s area came from testimony received i n Tucson

regarding t h e c u r r e n t wording o f the burglary statute. Senator Blanchard said

the way t h e burglary s t a t u t e i s currently written, it simply required an entry

J t . L e g i s l a t i v e Study Committee on the

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January 2, 1992

Page 5

i n t o the business or residence with the intent to e i t h e r commit a t h e f t or a

felony. Senator B l anchard informed the Committee that technically, to go into

a business with the i n t e n t t o s h o p l i f t i s considered a burglary. Senator

Bl anchard suggested a d i s t i n c t ion be made between burg1 ary and shopl i ft ing.

Representative Noland said t h a t if the person i s on probation or parole and

committed a shopl i f t i n g offense, a b i g sentence could be handed down, thus

taking up prison space t h a t was needed f o r more serious offenders.

Representative Hubbard agreed and said he would l i k e to see something i n w r i t i n g

f o r the categories they were discussing. Representative Noland requested the

S t a f f provide copies to the Committee o f the appropriate statute sections.

Senator Greene agreed with the discussion for t h i s area, but recommended leaving

the d e f i n i t i o n f o r burglary as broad as possible.

Representative K i l l ian commented the Committee should not make it easier f o r the

people who commit a crime while on parole or probation. Representative Noland

agreed and discussion was held regarding the d i f f i c u l t y o f accomplishing that

objective.

The next area f o r discussion was:

IV. Modification or elimination o f " Hannah priors."

Representative Noland d i s t r i b u t e d t o the Committee members copies o f the court

cases on Hannah ( copies on f i l e i n Senate Secretary's O f f i c e ) . Representative

Noland stated the Committee had heard so much about the use o f Hannah p r i o r s and

the Committee needed to discuss what should be done.

Judge Reinstein said that he was not sure if anyone knew what the o r i g i n a l

i n t e n t i o n was regarding Hannah p r i o r s . Judge Reinstein said t h a t Judge Hannah

thought it was one thing, t h e L e g i s l a t u r e had another idea and the Supreme Court

thought something else. I n addition, Judge Reinstein said there are prosecutors

and defense judges that s t i l l do not know. Judge Reinstein gave an example of

a person stealing a car stereo from one parking l o t and then stealing another

stereo from a car i n a parking l o t down the street and whether t h a t would be

considered a " spree offense" and would not q u a l i f y as a Hannah or whether that

would be considered as two separate d i s t i n c t acts i n two separate d i s t i n c t areas

and points o f time and would qua1 i f y f o r a Hannah. I n addition, Judge Reinsteln

said i f you were dealing with three times, there was also a " wrap around"

provision. Judge Reinstein explained t h i s can be mind boggling i n that one

count can act as a p r i o r f o r the other two counts.

Judge Reinstein stated t h a t t h i s area probably triggered the most discussion

w i t h i n the rump group and there was some agreement t h a t there needed t o be some

change regarding the use o f Hannah p r i o r s , but there was a l o t o f disagreement

as t o what that change should be. Judge Reinstein said the prosecutors f e l t

they need it i n some instances f o r purposes o f decreasing l i t i g a t i o n and he fel t

that was appropriate because o f the cost o f l i t i g a t i o n . Judge Reinstein sald

there was i n t e r e s t from the prosecution and also from the judges and defense

Jt. Legislative Study Committee on the

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January 2, 1992

Page 6

representatives that if someone had commi tted mu1 tiple offenses against mu1 tip1 e

victims they should be treated differently than someone that is not really the

true repeat offender.

Judge Reinstein, in regard to the area of drug offenses and property crimes,

informed the Committee there was discussion by the rump group to set a threshold

amount for a quantity of drugs or a certain amount of money for incidents where

Hannah priors would not apply and the judge would be given some discretion.

Judge Reinstein said there was some feeling within the group to do away with

Hannah priors completely and to look at the true repeat offenders that have

already been through the system. Judge Reinstein said there was concern that

use of Hannah priors really takes away the right to a jury trial. Judge

Rei nstei n said representatives of the defense bar a1 so recognized there were

certain instances when the use of Hannah priors would be appropriate, for

example, when dealing with the true predatory offender or when a person commits

fraud against many people for a great amount of money.

In response to Senator Blanchard, Judge Reinstein said the rump group had not

reached a complete agreement on how to treat Hannah priors different than

regular priors, but discussed a recommendation that if some Hannah priors was

g ~ i n g to be used, to increase the range at both ends of the sentencing. Judge

Reinstein said that would still not answer the question of proportionality and

consistency in sentencing.

Judge Reinstein said it would be instructive for the Committee to examine

section 13- 101, Arizona Revised Statutes, which gives the purpose of the

criminal code and sets forth the publ ic pol icy of the State. In addition, Judge

Reinstein suggested the Committee look at the criminal code from other states

and their publ ic pol icy. Judge Reinstein briefly reviewed for the Committee

Washington's criminal code.

O i scussion was held in regard to criteria for the court to determine a Hannah

prior and what would be considered a spree offense. Judge Reinstein explained

that a spree offense is when multiple separate crimes occur at one place.

Representative Hubbard commented that our criminal code was a good example of

a good idea that was out of control and abused. Representative Hubbard stated

that a prior offense should be considered a prior offense and that Hannah prior

was being used as a hammer. Representative Hubbard said he felt the justice

system was being bartered rather than administered. . In concl us i on,

Representative Hubbard stressed that this was the main area that needed

revision.

Senator Blanchard informed the Committee that the rump group had discussed a

proposal that would lessen the hammer effect of Hannah priors. Senator

Bl anchard explained the idea was if a person had committed several crimes, to

take the least serious offense the person was convicted of and make the minimum

sentence the minimum mitigated sentence for that crime. At Senator Blanchard's

request, Judge Reinstein further explained this proposal for the Committee.

/ J t . L e g i s l a t i v e Study Committee on the

Criminal Code Revision

January 2, 1992

Page 7

Rob Carey, Attorney General's Office, informed the Commi ttee that he wanted to

t e s t i f y not so much as a member of the rump group, but as a member o f the Office

of the Attorney General. M r . Carey stated that he disagreed with Representative

Hubbard's remarks that the use o f Hannah p r i o r s had been abused by every

prosecutor, but there were some circumstances when it was abused. Mr. Carey

said that i n the Attorney General's Office, before f i l i n g a Hannah allegation,

the Attorney General had t o approve it. M r . Carey said there are certain cases

i n which Hannahs can be used e f f e c t i v e l y t o achieve j u s t i c e , but there was a

problem when it was used to achieve an unjust r e s u l t . I n regard t o the extent

of the abuse of Hannahs, M r . Carey referred t o Dr. Block's report that less than

two per cent of persons incarcerated had " Hannah exposure." In conclusion, M r .

Carey said problems that involved Hannahs actually affected a small segment o f

the case 1 oad.

Representative Hubbard questioned why the Attorney General f e l t it was necessary

to give h i s approval t o use Hannahs, although he agreed w i t h t h a t procedure.

M r . Carey said there was potential f o r abuse o f Hannahs, but there was potential

for abuse of a number o f prosecutorial t o o l s . Mr. Carey said there was

recognition o f the problems, but possibly through prosecutorial guidel ines, and

statewide guidel ines on Hannah appl ication, a middle ground could be found. M r .

Carey explained t h a t t h i s method of approval by the Attorney General was a

" short- term f i x " and i n the long term, a f t e r guidel ines were developed, he hoped

that prosecutors could make t h a t decision on t h e i r own and i n a f a i r manner.

Representative Hubbard said t h a t he was o; t o f step i f he implied that ' a l l "

prosecutors abused the use o f Hannahs, but he f e l t t h a t " many" of the

prosecutors had abused the use o f Hannahs.

Representative Kromko remarked that i f the Committee i s not going to do away

with Hannah p r i o r s , then there was a l o t o f work t o be done t o the criminal

code. Representative Kromko said at the time the current criminal code was

adopted, the Legi'slature d i d not know about Hannah p r i o r s and it was not t h e i r

o r i g i n a l intention. Representative Kromko recommended e i t h e r doing away with

Hannah p r i o r s or t o r e w r i t e the sentencing structure.

Representative Noland said she heard d i f f e r e n t l y from other people i n regard to

t h i s area and the Attorney General had expressed concern over the fraud and the

white c o l l a r crime t h a t takes place.

Senator Furman asked Judge Reinstein i f prosecutors used Hannah p r i o r s to

b o l s t e r t h e i r cases. Judge Reinstein said t h a t does occur and that some

prosecutors f i l e a Hannah for every case and some prosecutors never use it.

Judge Reinstein said i n Maricopa County, it was used frequently because of the

number o f cases they handled and it was found t o be a valuable plea bargaining

t o o l .

Senator Furman said he could understand some use o f Hannahs, but the concept of

using it f o r plea bargaining he found to be abhorrent. Senator Furman commented

there i s no t r u t h i n the j u s t i c e system. Senator Furman stated that the

Cornmi t t e e had heard testimony i n regard t o sting operations when the undercover

o f f i c e r d i d not arrest someone for purchase o f drugs because they wanted to

r J t . Legislative Study Committee on the

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January 2, 1992

Page 8

build the case t o qua1 ify for a Hannah priors. Judge Reinstein said on one hand

i t . was good law enforcement to build a case by showing the offender had a

predisposition toward committing the offense and any good narcotics detective

is not going to go on one " buy bust" situation, but will go on a t least one

more. In addition, Judge Reinstein said there are officers that know if you get

two or more separate incidents, there will likely be a better sentencing

possibility. In conclusion, Judge Reinstein said that i t is proper law

enforcement technique, however, i t could be abused at times.

The next area for discussion was:

V. Modification of repetitive offender statutes so the punishment f i t s

the severity of the offense.

Senator Blanchard said one issue regarding the repeat offender statutes, was

there was no time limit on application of " real" priors, which was appropriate

for some crimes, such as property crimes, but not for violent crimes. Senator

Blanchard gave the Committee some example situations and reviewed the issues t o

be considered. Senator Blanchard said one issue was the threshold issue, which

would take into consideration the amount of damage done with a prior offense.

Senator Blanchard said another issue to be considered was automatic enhancement

t~ sentences. Senator Bl anch- ard referred to Senator Bart1 e t t ' s previous

comments that the certainty of a person going to prison is probably more

important than the actual time to be spent i n prison. Senator Blanchard said

a different approach to the repetitive offender statute would be a mandatory

disposition t o prison, but the prison term would be set at the judge's

discretion.

The next area for discussion was:

VI. Review of offenses t h a t result in a mandatory 1 ife sentence if

committed while a person i s on probation.

Senator Blanchard asked Rob Carey to describe this area.

Rob Carey explained there are no distinctions made in the criminal code between

very minor drug transactions that involve a minimal amount of drugs and those

that involve a large' amount of dangerous drugs. Mr. Carey said the movement was

to distinguish between those groups to allow for proportional and just

punishment. Mr. Carey said the other issue was when a person was on release

status -- probation or parole and they were charged with selling a dangerous

drug, the criminal code called for a mandatory l i f e sentence. Mr. Carey said

if marijuana was involved, i t did not call for a mandatory l i f e sentence and

that was a common misperception.

Representative No1 and questioned whether there could be a gradation and

threshold amount translated along the 1 ines of the Federal level. Mr. Carey

said i t could be translated in the manner t h a t he understood the term

" gradation" but the issues were what was a real prior and if the appropriate

punishment was being given right now. '

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January 2, 1992

Page 9

Representative Hubbard said if a person i s on probation, he would 1 i ke to know

what type of crimes qua1 i f y for a 1 i f e sentence. Representative Noland said the

S t a f f would be providing that information.

Senator Blanchard referred the Committee t o section 13- 604.02, Arizona Revised

Statutes and said the amount o f marijuana was eight pounds or more.

Judge Reinstein stated t h i s p a r t i c u l a r provision was probably the most heinous

as f a r as what happens i n the system. Judge Reinstein s a i d t e c h n i c a l l y , if a

person was on probation f o r any offense, f o r example, s h o p l i f t i n g and that

person was caught with a narcotic drug, that called f o r mandatory 1 i f e

imprisonment. Judge Reinstein said that type o f " hammer" was not needed by the

criminal j u s t i c e system and t h a t many people i n the criminal j u s t i c e system did

not want t o see a mandatory sentence given t o the addict user who was making an

e f f o r t t o change.

The l a s t area f o r discussion was:

1 1 Consideration o f p a r i t y ( equal i z a t i o n o f sentences given under

d i f f e r e n t codes) i n cases other than c a p i t a l cases and f i r s t

degree murder cases where sentences o f 1 i f e without parole

were imposed and how p a r i t y could be accomplished.

Representative Noland said there was testimony given regarding the issue of

p a r i t y if the criminal code was changed and whether the people that were

sentenced under the " old" code would be given a review and if so, how it could

be accompl i shed. Representative No1 and said there could be three criminal codes

i n e f f e c t f o r the people i n the criminal j u s t i c e system.

Representative Greene said t h i s issue warranted consideration but advised

against t r y i n g to make the criminal code equal, as it was a natural process

where criminal 1 aws and penal t i e s change, but that the Parole Board would be the

l o g i c a l place t o go f o r any review o f sentencing.

Representative Baird suggested a review o f the people sentenced under the 1978

code and t o consider t h e i r record and conduct while i n prison.

Senator B a r t l e t t said he had proposed l e g i s l a t i o n l a s t year t h a t re1 ated to t h i s

issue, but the b i l l d i d not get heard i n the Judiciary Committee. Senator

Bart1 e t t suggested t h a t the Committee not bypass a legitimate j u d i c i a1 process

that had already occurred and possibly allow a review by the Parole Board

regarding sentence modification and then have that action approved by the court

o f o r i g i n with opportunity f o r various p a r t i e s t o be heard.

Representative Hubbard said t h a t times change and laws change and advised

against a review o f sentencing, unless it was very l i m i t e d .

~ epresen'tative No1 and said f o r c l a r i f { cation, the question on p a r i t y she

referred t o earl i e r was if someone was sentenced p r i o r t o 1973 f o r f i r s t degree

murder, would t h a t person under p a r i t y then be subject t o the death penalty.

Jt. Legislative Study Committee on the

Criminal Code Revision

January 2, 1992

Page 10

Representative No1 and said' there was a review on the capital punishment cases,

but not on other cases.

Representative Bai rd said constitutional 1 y, the punishment cannot be increased

once it was pronounced. Representative Baird suggested the Committee could 1 ook

at the criminal code since 1978 and determine if the mandatory sentencing was

unjust and then decide whether consideration should be given to those people who

were sentenced under the 1978 code, but in no event should any punishment be

increased.

Senator Bl anchard stated that he agreed with Senators Greene and Bartlett to

proceed with caution, recognizing that some of the sentences were the result of

plea bargaining.

Representative Noland asked the rump group and the Parole Board and any others

involved in the criminal justice system, to consider this area and give their

input to the Committee.

Judge Reinstein expl ained to the Committee that currently, the mandatory

sentencing provided no release on any basis and that included commutation.

Judge Reinstein said if a decision was made to delete commutation from that,

the authority could be given to the Governor to commute sentences. Judge

Reinstein referred to current case law State vs. Rutherford.

Representative Noland reviewed for the Committee what they would consider at

their next meeting. Representative No1 and again reminded everyone to have

recommendations ready for the Committee and to let her or Senator Blanchard know

of other areas that needed to be addressed.

Discussion was held by the Committee regarding the date of the next meeting.

Representative Noland said the next meeting would be on Tuesday, January 14 at

1: 30 p. m. and asked the Committee if there were other areas to be considered.

Representative Kromko suggested some areas for future Committee discussion. One

area was felony murder rule and to look at the purpose of that law. In

addition, Representative Kromko said in 1975, the Legislature did away with a

provision that a person could not be convicted based on testimony of an

accompl ice. Representative Kromko stated that was a " gross injustice" and

suggested the Cornmi ttee consider that issue. Representative Kromko a1 so gave

the area of pol ice seizures, because the pol ice are allowed to keep the proceeds

of the seizures and there should be some accountability. Representative Kromko

recommended the Committee take a more " creative" look at drugs and that plea

bargaining should be controlled. Representative Kromko said most importantly,

the Committee should consider what happens to prisoners after they are released.

Senator Blanchard suggested the Committee consider the concept of truth in

sentencing and a1 so consider post re1 ease supervision. In addition, Senator

Blanchard said if there was going to be a mandatory sentencing system or

sentencing guide1 ines, for the Committee to consider whether the sentencing

range should be increased at both ends. Senator Bl anchard recommended

J t . L e g i s l a t i v e Study Committee on the

Criminal Code Revision

January 2, 1992

Page 11

consideration o f a " safety valve" system t h a t allowed the judges, i n

extraordinary cases, t o vary w i t h t h e sentencing e i t h e r upwards or downwards,

i f the judge can a r t i c u l a t e on the record why the case was t r u l y extraordinary.

Senator Blanchard said the rump group had some discussions regarding a safety

valve system. I n conclusion, Senator B l anchard emphasized the issue of

sentencing guidel ines. Senator Blanchard said one approach would be t o replace

the present system a1 together with a sentencing guidel ine system. Senator

B l anchard said another possible approach to sentencing guidel i nes that was

discussed by the rump group, would be to change Hannah p r i o r s and increase the

range o f sentencing a judge could apply. Senator Blanchard said t h a t mandatory

sentencing was needed i n order t o have more certainty i n the sentencing system.

Senator Blanchard said it would be appropriate to have a l a r g e r sentencing range

but t o have an overlay o f guidelines that t o l d the judge what the sentencing

should be. Senator Blanchard emphasized that t h i s would not be a replacement

o f the mandatory sentencing system, but an overlay onto a revised mandatory

sentencing system.

Representative Hubbard stated t h a t he would l i k e t o see the establishment o f an

ongoing sentencing commission with representatives from the various groups.

Representative Noland encouraged everyone t o submit t h e i r suggestions i n w r i t i n g

t o the Committee as soon as possible.

The meeting adjourned at 12: 30 p. m.

Respectfully submitted,

% . b - Q u

Charmion B i l l i nq- ton

Secretary w

ARIZONA STATE LEGISLATURE

Fortieth Legislature - Fi Regular Session

Joint Interim Committee Meeting

JOINT LEGISLATIVE STUDY COMMITTEE ON THE

CRIMINAL CODE REVISION STUDY

Minutes o f Meeting

Tuesday, January 14, 1992

Senate Hearing Room 1 - 1: 30 p. m.

( Tape 1, Side A)

Cochairman Blanchard called the meeting to order at 1: 40 p. m. and attendance

was noted.

Members Present

Senator B a r t l e t t

Senator Buster

Senator Day

Senator Denny

Senator Furman

Senator Greene

Senator Hi 11

Senator Sol tero

Senator Blanchard, Cochairman

Members Absent

Representative Baird

Representative Ki 11 ian

Representative Cel aya

Representative Hubbard

Representat i ve Kromko

Representative McCarroll

Representative W i 11 i ams

Representative Noland, Cochairman

Representative Hanley

beakers Present

Judge Ronald Reinstein, Ad Hoc Committee Member

Dave Derickson, Ad Hoc Committee Member

Guest L i s t ( Attachment 1)

Cochairman Blanchard explained that the focus o f today's meeting would be on the

issues outlined on the handout t i t l e d " Criminal Code Issues." ( Attachment 2)

Issue R1 - Need f o r Gradation o f Sentencin~ b ased on the Severi t v of the Offense

f o r Drua Offenses:

Senator B a r t l e t t moved that the Committee adopt Issue # l . He said that he

be1 ieves the range of sentences avai 1 able w i t h i n a1 1 c l a s s i f i c a t i o n s should be

expanded, and aggravating situations be considered by the judge. He added that

JOINT LEGISLATIVE STUDY COMMITTEE ON

THE CRIMINAL CODE REVISION STUDY

1/ 14/ 92

he thinks there should be distinctions between one- time drug offenses and repeat

offenses.

Questions were raised on how threshold amounts for mandatory sentencing would

be determined. Senator Bl ancbard advised that a proposal is being drafted which

would address specific amounts.

Mrs. Noland stated that she has a problem with adopting Issue # 1 as a blanket

statement until more information is available, and would prefer to address

specifics.

Senator Bartlett said that he only proposes endorsing some broad guidelines.

Mrs. Noland stated that she just wants to be sure all Committee Members have the

same understanding of what they are agreeing to.

Senator Furman suggested that it would be confusing to consider both broad and

specific guide1 ines at the same time.

Senator Greene concurred with Mrs. Noland's comments and said that he thinks the

Committee should decide on whether to adopt broad or specific guidelines before

vot i ng .

Senator Bl anchard explained that formal recommendations with specifics would not

be avail able until the dead1 ine for introduction of bills, so the Committee does

not have the time to wait.

Judae Ronald Reinstein. Ad Hoc Committee Member, explained that the Ad Hoc

Committee feel s more comfortable with basing sentencing on quantity of drugs

rather than dollar amounts. He explained that using quantity as a basis would

be less questionable than a dollar amount because a determination of dollar

amount is dependent on who is making the assessment.

Dave ickson. Ad H ittee Mem reported that based on federal

guidel?% s, the Ad Hoc & m!!~ e came