Old obstacles are gone but new ones may arise for criminal justice reform




The new legislature brings new opportunities for a criminal justice reform movement that’s stalled out at the Capitol over the past couple years — and perhaps some new obstacles, as well.

Two key committee chairmen who have been largely unfriendly to reforms and blocked legislation aimed at making Arizona’s criminal justice system less draconian are gone. And a new criminal justice reform committee in the House of Representatives will likely ensure that bills at least receive a hearing in one chamber, regardless of how they fare in the Senate. Proponents of reform are hoping these developments will help them build on recent successes. 

However, obstacles still remain. Rep. John Allen and Sen. Eddie Farnsworth may be gone from their posts as House and Senate judiciary committee chairmen, but Farnsworth’s successor, Sen. Warren Petersen, could bar the way in the Senate, even if legislation gets out of the friendlier House of Representatives.

“I don’t plan on major criminal justice reform changes in year one,” Petersen, a Gilbert Republican, told the Arizona Mirror via text message.

Still, after several years of unsuccessful attempts, including an ambitious citizen initiative that was kept off the ballot for a lack of signatures last year, advocates of reform are hopeful.

“There are obstacles that need to be overcome, and that will kind of play itself out over the legislative session. But I don’t want to say for certain that this is the year we get something done. But it certainly feels like it could be,” said lobbyist Marilyn Rodriguez, whose firm represents a coalition of organizations pushing for criminal justice reform.

The biggest prize of the reform movement may be a reduction in Arizona’s criminal sentencing laws, which are among the most draconian in the nation. Snowflake Republican Rep. Walt Blackman has been trying to reform those laws since he arrived at the legislature in 2019. 

Arizona’s 1993 “truth-in-sentencing” law requires prison inmates to serve at least 85% of their sentences. Inmates can receive one day of “earned release credits” for every six days they serve if they complete substance abuse or other self-improvement programs. 

In 2019, Blackman couldn’t get a committee hearing for his bill to reduce sentencing requirements, though another, successful proposal sponsored by Farnsworth that year now allows people convicted solely of drug offenses to earn early release after serving at least 70% of their sentences. 

Blackman’s successor bill in 2020 passed out of Allen’s House Judiciary Committee and was approved unanimously by the full House. But it never received a hearing in the Senate Judiciary Committee, a victim, like so many other bills, of the COVID-19 pandemic that forced the legislature to go on hiatus.

Now, as Blackman prepares for his third attempt in as many years, circumstances are looking a little better. He plans to resurrect his House Bill 2808, which would make nonviolent felons eligible for release after serving about 65% of their sentences. As chairman of the new House Criminal Justice Reform Committee, Blackman can at least ensure his bill will get a hearing.

“Criminal justice and earned release credits touches everyone in our state. Either you’re paying taxes toward the $2 billion price tag or you have someone that’s in the criminal justice system,” he said.

Blackman is hopeful that he’ll be able to change Petersen’s mind about hearing the bill. After all, Petersen voted for Blackman’s HB2808 last year when they served in the House together. 

“That’s where I’ll hopefully get momentum for the bill. And, hopefully, with the momentum and the improvement of the bill, he will be open to at least giving it a hearing,” he said.

Rep. Ben Toma, R-Peoria, is also hopeful about the possibilities for criminal justice reform in 2021. Toma plans to sponsor a bill allowing people convicted of felonies to expunge their criminal records, which often preclude them from doing things like getting good jobs and renting apartments. 

While Toma wants law enforcement officers and prosecutors to still have access to conviction records, he wants people convicted of non-violent crimes to be able to largely seal those records, which he said is “really expungement for the purposes of day-to-day life.” 

“The point is to sort of legally get around the scarlet letter effect,” Toma said. “I think we should be able to for a good chunk of potential past indiscretions.”

Both Blackman and Toma have their eyes on other reforms, as do other lawmakers. Toma, for example, wants to renew a push to ban or limit the use of “Hannah priors,” a practice that allows prosecutors to charge suspects who are facing multiple charges stemming from a single incident as repeat offenders, even if they’ve never been charged with a crime in their lives. Blackman wants to create an independent ombudsman to oversee the Arizona Department of Corrections, Rehabilitation and Reentry, among other proposals.

Like Blackman, Toma is hopeful that Petersen and other Republican skeptics can be convinced. He’s working with numerous stakeholders, including those in the law enforcement community, and said buy-in from police, prosecutors, corrections officials and others could be critical to winning the committee chairman over.

Though he’s wary of major changes to the system this year, Petersen wouldn’t rule out the possibility of hearing Blackman’s sentencing reform bill or other legislation in 2022. For the earned release credits bill, Petersen said he’ll need to look at any changes Blackman makes from his previous legislation. As a first-time judiciary chairman, Petersen said every bill that comes before his committee will receive extra deliberation.

“I’m a limited government guy when it comes to commerce. When it comes to criminal justice, government plays an important role,” said Petersen

Even if criminal justice reform legislation makes it out of the legislature, it will still need the approval of Gov. Doug Ducey, who has been skeptical of such proposals in the past and is close with opponents of reform. In 2019, he vetoed a bill to largely ban the use of Hannah priors after two county attorneys, Maricopa County’s Bill Montgomery and Pima County’s Barbara LaWall, urged him not to sign it.

Ducey noted to the Mirror that he’s pushed policies aimed at reducing recidivism by inmates since he took office in 2015. But, as in previous years, he indicated that he’s not likely to approve of more ambitious proposals.

“If there are other things that we can do that provide opportunities for people, that better deal with mental health issues or addiction issues, I’m open-minded to that,” Ducey said. “But … among the top priorities for me is public safety. And I’m not going to do anything that would lessen the amount of public safety and attention to law and order in the state or Arizona.”

Lobbyist Barry Aarons, who represents the American Friends Service Committee, a Quaker organization that’s committed to criminal justice reform, said the obstacles could be overcome. He was bullish on the possibility that Ducey can be persuaded, noting that the governor didn’t publicly oppose the proposed ballot measure to reduce sentencing requirements. And he speculated that the governor may want to have some role in shaping any reform proposals that could land on his desk.

As for Petersen, Aarons said if a bill has strong support in the House, that could help lawmakers persuade him to give it a hearing. And if not, there are other legislative techniques that reform proponents could use, including getting bills referred to other committees, attaching it to budget bills or passing it via “strike-everything” amendments that basically rewrite other legislation.

“I think the strategy specifically will be determined at that time. But for the moment, I think there’s still enough support, especially in the House, that things will start to move and then we’ll see how far we can take it,” Aarons said.

Even if reform proposals can’t get past the Senate, just getting them heard in the House is important. 

House Speaker Rusty Bowers created a criminal justice reform committee for the 2019-20 legislature, but dismantled it after its chairman, then-Rep. David Stringer, was found to have faced sex crime charges in Maryland in the early 1980s. Without that committee, reforms pushed by Blackman, Toma and others never saw the light of day in either legislative chamber in 2019.

The new criminal justice reform committee chaired by Blackman ensures that bills will at least get a hearing now. 

“It’s really hard to move the ball forward when you don’t have a hearing at all,” Toma said.