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December 15, 2010

"Top prosecutors oppose sentencing 'reform' proposals"

The title of this post is the headline of this local Arizona article, which highlights the all-too-common efforts of some prosecutors (and their lobbyists) to advocate against reform efforts that would give sentencing judges great discretion.  Here are some details:

Top prosecutors from the state's two largest counties are moving to kill some sentencing "reform" proposals before they have a chance to sprout.  Kathleen Mayer, the lobbyist for Pima County Attorney Barbara LaWall, took a specific shot at a proposal by Rep. Cecil Ash, R-Mesa, to make it harder to label something a "crime spree" which requires judges to impose minimum prison terms....  Maricopa County Attorney Bill Montgomery had his own objections to that element of the plan....

Montgomery also chastised Ash, who chairs a special legislative committee reviewing sentencing laws, for proposing to give judges more leeway in sentencing those found guilty of possessing child pornography.  Right now, state law requires judges to impose consecutive prison terms for each item of pornography.  That resulted in one recent case to a man being sent to prison for 200 years -- 10 years for each of 20 items.  "Child pornography is not a victimless crime," Montgomery said.

Ash, an attorney and former public defender, said he is not making such a claim.  But he pointed out that someone who actually molests a child can get out of prison after 35 years. And murderers are eligible for probation after 25 years.  "Unless people want to say possession of child pornography is more serious, more harmful than murder, I think we need to look at our sentencing laws to make appropriate adjustments," Ash said....

The overall theme behind what Ash is proposing would give judges more discretion in sentencing.  That would reverse a trend beginning in 1978 when lawmakers voted to impose mandatory prison terms for certain crimes.  And in 1993 legislators approved a "truth in sentencing" law which says criminals must serve at least 85 percent of their term before being eligible for release.  The result, said Ash, is there are more than 40,000 people in state prisons, a figure he computed out to one out of every 170 residents. "The problem with that is that the state is paying for that," he said. "The taxpayers are paying for that."

Mayer, however, said the proposal which Ash intends to introduce when the Legislature convenes next month goes too far.  "Rep. Ash wants a lot more judicial discretion on a general basis than prosecutors are comfortable with," she said.  And Montgomery said the laws on mandatory sentencing and minimum prison terms are necessary.  "These drastic changes represent a movement away from sentencing laws that have both lowered crime rates and honored the rights of crime victims," Montgomery wrote.   "Changes such as the ones proposed in the legislation undermine public safety and could have very serious consequences for the state."  Ash, however, said other states have managed to alter their sentencing laws and also see a drop in crime.

Another target for Ash is an existing law that imposes mandatory prison terms on those who are convicted of possessing anywhere from two to four pounds of marijuana.  He said that might be appropriate for a member of a drug cartel.  But Ash said it's just as likely that the courier is just some drug user willing to do the job for a "fix," someone who a judge should be able to place on probation.

Mayer said that ignores evidence her office has that these "casual" couriers are not harmless. "The cartels are not doing our home invasions," she said. "It's our local traffickers who are engaging in smaller amounts -- just under 4 pound range -- where we're getting a lot of violence."

Mayer said there already are options for dealing with special situations like this, albeit not for the judges.  She said her office has the ability to put someone who is determined solely to be a drug user and not involved with other crimes into a diversionary program.  There, the person would get counseling and help rather than being incarcerated.

I think it is appropriate and important for prosecutors (and their lobbyists) to comment upon any proposed legislative criminal justice reforms.  But I am always irked when prosecutors work extra hard to deny judges sentencing discretion because they fear that giving judges more authority to impose a fitting sentence risks diminishing prosecutors' always greater authority to assess, structure and frame the sentencing consequences facing a defendant.

December 15, 2010 at 09:07 AM | Permalink


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Prof. Berman,

I suspect that one might find that those few situations where "prosecutors work extra hard to deny judges sentencing discretion" are due to the spectacular abuses of said discretion that many judges have displayed, where criminals who deserve prison are sentenced to probation and criminals who deserve lengthy prison terms get substantially lighter ones.

I can not speak for other states, but in California, any such "extra work" that CDAA puts in is usually completely ignored by the majority in our Legislature.

Posted by: California Prosecutor | Dec 15, 2010 1:28:48 PM

It's always a hoot when prosecutors brazenly remind us their judgments about who "deserves" to be in prison and who doesn't are inerrant and judges are just a bunch of liberal sisses bent on loosing bestial criminals to prey on the rest of us.

Crime-issue demagogues since Nixon "worked extra hard" to successfully diminish the role of judges. Now prosecutors lord over the system with breathtaking powers and resources and few if any significant restraints. So it's not at all surprising the word reform hits them like sunshine on a vampire.

Nonetheless, Montgomery and anyone else who thinks 200 years in prison is a fitting punishment for merely possessing 20 dirty pictures have simply lost their perspective.

Posted by: John K | Dec 16, 2010 12:17:25 PM

It is rather less than a hoot to hear someone brazenly call child pornography "dirty pictures." Someone who can display such breathtaking ignorance has lost considerably more than their perspective.

Posted by: California Prosecutor | Dec 16, 2010 3:57:51 PM

Ignorant? Maybe. Though I'll certainly cop to lacking the wild imagination and hysterical (or opportunistic) impulses needed to perceive pathetic dudes who possess pictures of ANYTHING they didn't personally touch, stab, shoot, set afire, photograph or pay someone else to produce as villains deserving of decades or centuries in prison.

Posted by: John K | Dec 16, 2010 5:38:36 PM

Well I will agree this is not a victimless crime I believe the punsihment is to harsh for simply looking we do not know ones mind set when they are looking it could be out of total disgust they maybe under the infunence of drugs and alchol and dont even remember any of if but we as society assume the worse we already have them convicted and labeled because we assume they will act upon .I have read several study that this not true so still we will cinvict them of a crime they may committ . That is unfair justice
To a predator is some who entices or lures children into the hands offender in my eye is someone who actually does physical harm .
I believe that before sentencing a person to 5-? to prison should go to conseling to be assessed a what threat they are if they pose not threat they should be let go no labeling no regestration .We all make stupid mistakes !!!

Posted by: theo | Dec 18, 2010 12:48:29 PM

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