Arizona Votes for CJ Reform in 2020

By Caroline Isaacs |

Despite the nail-biting tight races and seemingly endless counting processes, there is much to celebrate in the election outcomes in Arizona this year. It’s not the landslide victory many of us hoped and fought so hard for, but it is a perceptible shift and evidence of steady progress in the right direction. Here’s what we have to celebrate:

It’s not just about weed.

Ok, now that we’re all done with the stoner jokes, let’s take a serious look at what else was in the Smart and Safe Act (Prop 207), which passed with 59.9% approval.

Currently, Arizona is the only state in the country that still requires law enforcement to charge people with a felony for possession of any amount of marijuana. There is abundant evidence of folks ending up incarcerated for even “residual amounts” of marijuana found on their persons. Prop 207 will change this in two ways: through legalization AND decriminalization – legalization of one ounce and decriminalization of 2.5 ounces. Law enforcement will no longer be able to detain, search or arrest persons who fall under the 2.5-ounce threshold. This includes paraphernalia charges and possession with intent to sell (which are common sentencing enhancements). This is huge given that low-level drug offenses are the number one driver of incarceration in Arizona. 

The proposition also makes two critical changes to Arizona’s DUI laws: 1) The police cannot charge people with DUI based only on the odor of marijuana or presence of burnt marijuana  and 2) the mere presence of a metabolite in a driver’s system does not constitute impairment. This is important since we’ve seen so many incarcerations stemming from people having used days prior getting slapped with DUIs even though they hadn’t consumed weed for multiple days. 

Prop 207 goes even further, allowing people who have past convictions for marijuana possession and paraphernalia to have their records expunged. In addition to providing the courts with the resources it needs to implement a system for the expungement of records, Prop 207 sets aside one-time funding in the amount of $4M for nonprofits to assist with the notification and assistance to those eligible for expungement under this Act. If the expungement is granted, the court must vacate the conviction and any record pertaining to the person’s arrest, charge, adjudication, conviction, and sentence must be sealed and shall not be disclosed to anyone who is not the person whose record has been expunged or their attorney. This could potentially remove some of the lifelong barriers to safe housing and stable employment faced by people with drug convictions.

Finally, the Prop 207 creates a Justice Reinvestment Fund, where an ongoing 10% of marijuana revenues goes to community-based justice reinvestment (JRI) programs. JRI has an intentionally broad meaning but includes anything that falls within the definition of public and behavioral health, evidence-based substance abuse prevention and treatment, and substance use early intervention.

County Attorney Races

Following a national trend, Arizona had two candidates running for county attorney on a progressive, reform-friendly platform. In Pima County, Laura Conover secured the position after she defeated two career prosecutors in the Democratic primary. As she had no opponent in the general election, Conover now has the distinction of being Arizona’s first progressive prosecutor. Her op-ed published in the Arizona Daily Star got straight to the point: There are too many people in jail, the war on drugs is a failure, and the current system does not make us safe.

The race for County Attorney in Maricopa County was unprecedented: an incredibly tight contest between the incumbent Allister Adel, who was appointed to the post to finish Bill Montgomery’s term, and an unapologetically progressive candidate, Julie Gunnigle. In a state where there were more than 600 police shootings between 2011 and 2018, Gunnigle has taken the issue of police accountability head on, expressing support for reallocation of money from police to social services and pledging to establish an independent, community-involved unit to prosecute crimes committed by police. She also signaled that she would not charge low-level drug possession cases or consensual sex work, and would also forbid prosecutors in her office from asking for bail bonds.

At this time, a narrow Adel victory appears imminent. But no matter the outcome, Gunnigle pushed Adel – whose office is responsible for 61% of our current prison population – to focus on reform throughout her campaign and at least consider a plan to substantially reduce the flow of people into our prisons. If Conover (whose office is responsible for 12% of our state’s prison population) implements changes in charging decisions she has promised, we could see drastic reductions those numbers, freeing up resources for other desperately-needed services.

But the good Conover can do goes beyond her own office and charging decisions. Elected prosecutors have long been the most significant opponents to sentencing reform legislation in Arizona. Montgomery was so infamously influential with lawmakers that the Speaker of the House likened it to being “married.” If Montgomery didn’t like a bill, it didn’t pass. And in one notable case, if it managed to pass, he would simply convince the Governor to veto it.

Having County Attorneys who are allies instead of adversaries, and who are willing to work in collaboration with the existing bipartisan coalition in support of sentencing reform, would signal a new day for these efforts in Arizona.

A Growing Consensus at the Legislature

Over the last few years, efforts to pass sentencing reform bills have gathered steam. Each year we’ve seen more bills introduced, more bills sponsored by the majority party, and more bills getting committee hearings. There is a strong, bipartisan group of legislators who have been supportive of these efforts and worked hard to help their colleagues see the value of reform. Fortunately, most of those allies will remain in the legislature.

While the predicted “flip” of the House of Representatives from majority Republican to majority Democrat appears not to have materialized, the Senate may be tied or have a slight Democratic majority when the dust settles. This balance will ideally embolden Democrats to push harder for criminal justice reforms. And the issue is far less controversial to many Republicans than it once was, not to mention more palatable than some other issues on the Democrats’ wish list.

Transformation of the punishment system has always been a long game. While the game’s taken a lot longer here in Arizona than many of us would like, there is no question that substantial change is on the horizon. The hard work of so many people over the years has materialized in exactly the way it was intended to: Broaden the conversation, remove the shame and stigma of having a conviction history, and promote real alternatives that work better at keeping our communities safe.

We at AFSC-AZ are in it to win it, and we will not stop until we’ve created the system we want to see.

Caroline Isaacs is the program director of AFSC-Arizona.

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