text:
Joint Legislative Study Committee
on the Crrrmnal . . Code Revision Study
Final Report
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.
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
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
' 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.
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
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.
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.
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.
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
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."
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.
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 .
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.
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).
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.
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 .
THE COClMITTEE RECOMMENDS THAT THE CLASSES OF THEFT BE AMENDED AS DESCRIBED BELOW
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
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.
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.
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.
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.
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 .
Minutes from Criminal Code Study
Committee Meetings
Fortieth Legislature - First Regular Session
Interim Committee Meeting
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
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)
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.
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.
10/ 16/ 91
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
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.
10/ 16/ 91
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.
10/ 16/ 91
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.
10/ 16/ 91
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
10/ 16/ 91
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.)
7 10/ 16/ 91
DATE: Thursday, October 31, 1991 TIME: 2: 00 p. m. PLACE: SHR 1
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
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.
J o i n t Legislsve Study C o n i t t e e on the
Criminal Code Revision Study
Page 2
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
Criminal Code Revision Study
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
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
Criminal Code Revision Study
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
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
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.
Joint Legi s l a v e Study Cormi t t e e on the
Criminal Code Revision Study
Page 6
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
F o r t i e t h Legislature - F i r s t Regular Session
Joint Interim Committee Meeting
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
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.
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.
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
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
( 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
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)
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
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
11/ 13/ 91
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
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.
7 11/ 13/ 91
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.)
11/ 13/ 91
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
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
I . Need for gradation of sentencing based on the severity of the
offense for drug offenses.
J t . L e g i s l a t i v e Study Committee on the
Criminal Code Revision
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
J t . L e g i s l a t i v e Study committee on the
Crimi na1 Code Revision
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
Criminal Code Revision
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
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
Criminal Code Revision
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
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
Criminal Code Revision
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
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. '
J t . L e g i s l a t i v e Study Committee on the
Criminal Code Revision
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
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
Fortieth Legislature - Fi Regular Session
Joint Interim Committee Meeting
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
1/ 14/ 92
he thinks there should be distinctions between one- time drug offenses and repeat
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
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
Click tabs to swap between content that is broken into logical sections.