Top prosecutors in Maricopa, Pima counties lobbied Ducey for veto on ‘repeat offender’ bill

The top prosecutors in Arizona’s two most populous counties urged Gov. Doug Ducey to veto a criminal justice reform bill limiting who can be considered a repeat offender, even though an organization representing all 15 of the state’s county attorneys took a neutral position on the legislation.

Ducey on Friday vetoed the measure.

In a May 29 letter, which was initially reported on Monday by Tucson’s KOLD, Pima County Attorney Barbara LaWall, a Democrat, and Maricopa County Attorney Bill Montgomery, a Republican, urged Ducey to veto Senate Bill 1334, which would have barred prosecutors from designating people who have never been convicted of felonies as repeat offenders. Ducey vetoed the bill on June 7.

That opposition put them at odds with the Arizona Association of Counties. On a vote of the majority of the 15 county attorneys, the organization switched to neutral after the bill was amended late in the session to include language authored by prosecutors.

Despite that, LaWall and Montgomery argued in their letter to Ducey that SB1334 would essentially reward people for evading arrest while committing numerous crimes. Non-violent first-time offenders are eligible for probation, and the bill would allow defendants who are charged with multiple crimes to be sentenced as a first-time offender for each one.

LaWall and Montgomery raised the hypothetical example of a member of an organized retail theft ring who had committed numerous shoplifting offenses, arguing that the proposed change to the law would allow such a defendant to be treated similarly to someone who’d been arrested for shoplifting for the first time.

“There is no need for us to needlessly jeopardize public safety or incentivize serial offenders,” LaWall and Montgomery wrote.

Ducey’s sparse veto letter said only that he is “concerned with the unintended consequences that may arise from this legislation and the effect these changes would have on victims.”

LaWall and Montgomery’s letter twice used the term “unintended consequences.”

Patrick Ptak, a spokesman for the governor, declined to comment on what role LaWall and Montgomery’s letter played in persuading Ducey to veto the bill.

“We vetoed the bill because we did not think it was good policy,” Ptak said.

Ducey has for years touted efforts to reduce recidivism among people who have been released from prison, but has expressed skepticism about justice reform proposals intended to reduce the number of people who are imprisoned in the first place. He cited Montgomery as one of the people whose opinion he would solicit on criminal justice reform matters.

The Arizona Association of Counties initially opposed the bill, but changed its position after lawmakers adopted an amendment drafted by the Yavapai County Attorney’s Office that rolled back some of the restrictions in the original version of SB1334. The bill’s sponsor, Sen. J.D. Mesnard, also agreed not to add a data reporting requirement for county attorneys in order to ensure the association’s neutrality.

A representative of the association testified in conference committee on May 24 that it was “very neutral” on the bill as a result of the amendment, and was especially appreciative that lawmakers agreed to the changes. After the bill was amended, it was approved overwhelmingly, with the House of Representatives passing it unanimously and the Senate passing it 27-3.

Yavapai County Attorney Sheila Polk, who, like Montgomery, has earned a reputation as a tough-on-crime prosecutor who has traditionally opposed criminal justice reform efforts, said she was part of the last-minute negotiations with Mesnard. As a result of the amendment, she said, she stayed neutral on the bill and didn’t ask Ducey to veto it.

“The agreement was that AACo… would remain neutral, but that individual county attorneys could certainly exercise their rights to urge the governor to veto. And, in fact, the association did remain neutral,” Polk said.

Jennifer Marson, the executive director of the Arizona Association of Counties, said a county attorney who is on the losing side of a vote has the same ability as any other person to weigh in on legislation. She declined to say how the individual county attorneys voted.

That didn’t sit well with some of the bill’s proponents. Lobbyist Marilyn Rodriguez of the firm Creosote Partners, which lobbied for SB1334, said her understanding is that the Arizona Association of Counties’ neutrality meant that the county attorneys would all stand down. She questioned what point there is in negotiating with the association if individual county attorneys can still actively work against the bill.

“How can stakeholders in a policy discussion possibly trust an organization that poses to speak for an entire group of people – including negotiating on that group’s behalf – only to clarify later that they don’t necessarily represent the position of the entire group?” Rodriguez asked.

Mesnard, R-Chandler, took a more nuanced view. He said he negotiated in good faith, and understood that collective neutrality didn’t mean individual county prosecutors might still oppose SB1334, though he didn’t anticipate that some might lobby against the bill.

Mesnard said he understands that some county attorneys might disagree with the association’s position, and also understands why some proponents of the bill feel like the county attorneys were playing both sides of the debate. He also said the bill might not have garnered as much support without the amendment and the association’s neutrality.

Nonetheless, Mesnard said he probably wouldn’t have agreed to water down SB1334, especially when it came to omitting the reporting requirement, if he’d realized that some county attorneys would actively lobby against it after the Arizona Association of Counties took a neutral position.

“I may have gone a broader approach if I knew a veto was inevitable,” Mesnard said. “I didn’t want to just send a bill up to get vetoed. I wanted to try to make a real difference.”

Marson said the association never indicated to anyone that the vote was unanimous, and said she explained as much to Mesnard, noting that county attorneys who were opposed to the association’s official position could still reach out to legislators.

“County attorneys are citizens just like Ms. Rodriguez, and as citizens, they have the right to express their views on any subject,” Marson said.

Amanda Steele, a spokeswoman for Montgomery, also emphasized that the association’s vote spoke for a majority of the county attorneys, but not for all.

“MCAO remained in opposition and joined Pima County in voicing and explaining the reasons for continued concerns to the Governor,” she said.

While LaWall and Montgomery argued that SB1334 would hinder prosecutors’ ability to mete out appropriate sentences to repeat offenders, supporters of the bill said Arizona’s repeat offender statute is simply a way for prosecutors to excessively punish people with clean criminal records and strongarm defendants into taking bad plea deals.

Jared Keenan, a former Yavapai County public defender who now works with the American Civil Liberties Union of Arizona, said it’s disingenuous to say SB1334 would result in defendants with numerous felony charges facing similar sentences as people with one charge. Judges can stack sentences, giving a defendant more time for each individual charge, he said.  

Keenan also said he’s seen law enforcement agencies use confidential informants to buy drugs from suspects. Rather than arrest the suspect after the first buy, the have their informants buy drugs several more times, then charge the suspect as a repeat offender.

“It’s generally used as additional leverage for people to take plea deals. It also makes prison mandatory for people who have never been convicted before,” he said.

Ducey’s veto punctuated a year of woes for criminal justice reform advocates, who went into the 2019 legislative session with high hopes, only to see them dashed in the face of opposition from powerful committee chairmen and prosecutors, most notably Montgomery, whose influence at the legislature became a frequent talking point among advocates. Many have described SB1334 as the most substantive reform proposal to reach Ducey’s desk this year.

Mesnard noted that only 3 of 90 lawmakers voted against SB1334. Given that support, he said he expects the legislation, or something similar, to come back in the 2020 legislative session.

“I doubt this is going away,” he said.