Top Maricopa County prosecutor open to justice reform, but noncommittal on specifics

As the top prosecutor for nearly two-thirds of the state, newly appointed Maricopa County Attorney Allister Adel has a lot of power to make unilateral changes that could lower Arizona’s massive incarceration rate.

While the legislature makes the laws that determine what’s illegal and how long people can spend in prison for those crimes, the way prosecutors enforce those laws can vary. Adel could make great strides in reducing the number of people incarcerated in Arizona if she enacts new policies at the Maricopa County Attorney’s Office, even while legislation intended to achieve the same goal languishes in the face of opposition at the Capitol.

Whether Adel will make those changes remains to be seen. Justice reform advocates took a dim view of her immediate predecessor, Bill Montgomery, who was known for his hardline, tough-on-crime policies. With Mongtomery now sitting on the Arizona Supreme Court and Adel sitting in his old office, advocates are hoping to see MCAO move in a new direction.

Adel said she believes the Maricopa County Attorney’s Office should play a role in reducing the number of people who go to prison in Arizona, which has the fourth highest incarceration rate in the United States. And she said the solution isn’t strictly legislative – the Maricopa County Attorney’s Office needs to take steps toward that end.

“I think it’s incumbent upon us to evaluate our role in this, and specifically, what are we doing right that we need to continue? What can we improve upon? And then what do we need to look at to see if there’s a better way to do this? And it’s all starting with us,” she told Arizona Mirror.

Defense attorneys and criminal justice reform advocates point to several policies Adel could rescind or revamp that would have major impacts on the number of people behind bars in Arizona and the amount of time they spend in prison. Those policies determine who gets charged with crimes, how severe those charges are, whether MCAO will even prosecute certain types of cases and what guidelines determine the plea deals that prosecutors offer.

Exactly what she’ll do and how far she’s willing to go to address justice reform are open questions. In several major policy areas, she has expressed a willingness to at least consider changes. But Adel isn’t committing to much at the moment, saying she’s in “learn-and-listen mode.” 

No more mandatory supervisor sign-off on plea deals

One change Adel has committed to is giving line prosecutors more leeway to make deals in settlement conferences. 

Currently, prosecutors are limited in what they can agree to in such conferences because settlements and plea deals must be approved by their supervisors. Adel remembers how frustrating it was during her seven years as a prosecutor in Maricopa County to go into settlement conferences, only to have to tell the judge that she couldn’t agree to anything without getting her supervisor to sign off first.

While there will always be some cases in which supervisor approval of plea deals will be warranted, such as high-profile or complex cases, Adel said she wants to let her prosecutors to call those shots themselves. 

That policy will go hand-in-hand with standardized guidelines for plea deals, which Adel said will aim to ensure that defendants are being treated equally and fairly. 

“We need to make sure we are giving our lawyers the ability to resolve their cases in an effective manner, rather than having to ask for permission every single time. So, we want to empower them to be able to do that,” she said. “There’s many, many cases out there that could be resolved more quickly. Or we can get people into treatment programs to help them succeed. And that allows us to focus on the worst of the worst offenders and put our resources there.”

Prison isn’t the best option for many

Adel also said she wants to increase the use of alternatives to prison. One priority, she said, is getting more people into diversion programs like the Felony Pretrial Intervention Program, which requires first-time offenders to pay restitution and to get evaluated to determine if they need services for mental health issues, substance abuse problems, homelessness or other needs.

But Adel can’t act alone if she hopes to increase the use of diversion programs: The county Board of Supervisors will need to increase funding and the state legislature needs to repeal laws that make some offenders ineligible for diversion, she said.

Allowing more prosecutorial discretion would be a step in the right direction and would bring positive change to the office, said Jared Keenan, a criminal justice staff attorney with the Arizona Civil Liberties Union of Arizona. But Keenan said it must be coupled with a change in MCAO’s culture that encourages prosecutors to reduce sentences and be less punitive.

“There needs to be a twofold change,” he said.

Grappling with overcharging allegations

Perhaps the most frequently cited problem by critics of Adel’s predecessors – Montgomery and Andrew Thomas – is what they say is an abundance of overcharging. Defense attorneys and reform advocates say prosecutors have been trained to find the harshest possible charges to levy against defendants, regardless of whether they accurately reflect the facts of the case.

That leads to people who are guilty of simple drug possession being charged with intent to distribute because they have small amounts of drugs broken up into multiple bags or containers, or because the amount surpasses statutory thresholds for intent to sell, even though it’s a small amount obviously for personal use, the critics say. 

In other cases, Keenan said minor shoplifting cases are upgraded to organized retail theft charges because a person stole something by hiding it in a purse or backpack, which technically constitutes using “an artifice, instrument, container, device or other article” to shoplift.

Adel said she’s heard the criticism about overcharging from defense attorneys, and she’d like to see some examples.

“I’m not going to say it’s not happening. But I just don’t know specific cases,” she said.

Ultimately, Adel said, the standard for charging decisions is what has a reasonable likelihood of conviction. Sometimes, prosecutors will realize that a certain isn’t appropriate after new facts come to light. Charges are based on the information a prosecutor has at the time a suspect is booked, she said. 

Prosecutors will sometimes charge the highest possible felony as a negotiating tool, Adel said. Spokeswoman Jennifer Liewer said Adel opposes this practice, and has urged defense attorneys to come forward with examples of cases in which they believe inappropriately harsh charges have been levied. Liewer emphasized that charges should be based on probable cause and likelihood of conviction.

The problems with overcharging become magnified due to MCAO’s policy of requiring many defendants to plead guilty to the most severe charge as a requirement of a plea deal, advocates and attorneys say. The policy, dubbed “plead to the lead” when Thomas implemented it in 2005, incentivizes prosecutors to hit defendants with the toughest possible charges.

Adel said she’s evaluating “plead to the lead,” but said one-size-fits-all policies aren’t her preference. 

In some cases, it may not be appropriate, especially with first-time offenders with lower-level felony charges who would be better suited for some kind of diversion program. A lot depends, Adel said, on what crime has been charged, what a defendant’s criminal history is, the victims and the strength or weakness of a case. 

“The short answer is we’re evaluating it and looking at it. I don’t know if it will stay in some version of its current form or if it will go away,” Adel said. “It shouldn’t just be a blanket, black-and-white policy.”

Felonies for drug possession?

At or near the top of justice reform advocates’ wish list is to see MCAO stop charging people with felonies or sending them to prison solely for drug possession. 

Possession of any drug can lead to a felony charge, even marijuana – Arizona is the only state where first-time marijuana possession can be charged as a felony – though prosecutors often reduce the charges to a misdemeanor, and people can’t be imprisoned for marijuana until at least their third offense. According to the most recent figures from the Arizona Department of Corrections, there were nearly 4,000 people in prison in Arizona for drug possession alone last month, including 218 who are behind bars for marijuana possession.

Adel said some people should face prison time for drug possession alone, but it depends on what drug they’re arrested with and what their criminal history is. She noted that people have multiple opportunities to avoid felony charges for marijuana possession.

“We are trying to look at treating the offender, not the offense. And if we can get them into diversion, then it’s incumbent upon us to try to work with that person to make them successful,” she said.

‘They’ve turned us into parole’

One issue that arose during a recent meeting of a legislative sentencing reform committee that Adel could address at MCAO is “probation tails” – the practice of sentencing a defendant to both prison and probation upon release.

Kathy Waters, who heads up the Adult Probation Services Division for the Administrative Office of the Courts, told the committee that probation tails only accounted for about 3 percent of all probation admissions in Arizona in 2009. Today, that number is 13 percent. More than 8,000 people are currently on probation due to a probation tail, she said, and about 15,000 current prisoners will get probation tails when they are released. Though it has become a statewide phenomenon, Waters said the trend began in Maricopa County and spread across the state from there.

Arizona eliminated the use of parole in 1994 when it implemented a “truth in sentencing” law that requires prison inmates to serve at least 85 percent of their sentences. But lawmakers wanted the option of keeping sex offenders on lifetime supervision after their release from prison, and allowed the use of probation tails for that purpose, Waters said. 

But rather than stay confined to just sex offenders, the practice became common for other crimes.

“They’ve turned us basically into parole,” Waters told the Mirror.

Adel said probation tails are valuable in some cases, especially for sex offenders, whom she described as a “specialized population” that needs to be monitored after release. But she said she wants to talk with stakeholders and examine MCAO’s policies on probation tails.

An ally for reforms at the Capitol?

Adel took a similar view of the practice of charging someone who’s never been convicted of a crime as a repeat offender because they allegedly committed multiple crimes. At the urging of Montgomery and Pima County Attorney Barbara LaWall, Gov. Doug Ducey vetoed a bill that would have prohibited the practice. 

Montgomery was an influential voice against many of the criminal justice reform proposals that have failed at the Capitol in recent years. 

Legislative Democrats questioned whether Montgomery effectively had a veto over justice reform bills after House Speaker Rusty Bowers suggested he refrained from sponsoring more far-reaching legisation allowing people to be removed from the sex offender registry because Montgomery would have opposed it. Ducey said Montgomery was one of several people he would consult with before acting on any reform legislation that reached his desk.

“One of the big things that would really just help here in the state of Arizona is not having prosecutors stand in the way of reform,” said Rebecca Fealk, the program coordinator for the pro-justice reform American Friends Service Committee.

Adel expressed a willingness to consider supporting justice reform legislation. She said she believes “wholeheartedly” that it’s worth looking for ways to improve the system, and wants to hear from others on how to accomplish that.

“We may not always agree on how we get there or if there’s a consensus. But we need to have the conversation,” she said.

When it comes to reform, Adel’s first priority is to ensure that policymakers have good data so they can make informed decisions on issues like sentencing reform, recidivism reduction and diversion programs.

“We want to make sure that what we are doing is going to be successful, does not have unintended consequences and is rooted in evidence-based practices,” Adel said.