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Old 02-27-2019, 08:47 AM
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Kyliie Kyliie is offline
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Exclamation LEGISLATIVE UPDATE: 2019 Session

Hello everybody,

I'm really into reform justice in Arizona and I Follow a group: Middle Ground Prison Reform and I also follow FAMM in Arizona

I let here a big info I've received yesterday about this Bill and I would like to let you know something about a SB which could be interesting for our loves one in prison. It's about SB1437 in California. The restore Cal Justice in California fight for it and now a lot of offenders with a felony murder sentence can get re-sentenced cuz its really retroactive.

Middle Grounders:

This will be a lengthy email. We hope the information is , useful and, if you find it so, you will print it off and send it to as many prisoners as you can who are currently incarcerated. As most of you know, we do not varnish the truth or sugarcoat information. We give honest, realistic opinions and try, always, to provide accurate information. We anticipate that some of you will be angry or upset at the reality of what this email contains. We have a responsibility to disseminate the truth.

Many, many of you have contacted us with questions about the progress that is being made at Legislative hearings, particularly with regard to HB 2270, which -- as currently written -- proposes to allow 1 day of earned release credit for every six days of incarceration (85.7%) for dangerous crimes against children; 1 day of release credit for every three days of incarceration (75%) for a dangerous offense, and for all other offenses, the bill proposes to allow prisoners to earn 1 day of credit for every 1 day of incarceration (50%). The bill does not apply to anyone serving flat-time (first and second degree murder, many/most sex crimes; some drug offenses involving threshold amounts of meth, coke, heroin, etc.).

Importantly, and in contrast with ARS 1-244, which REQUIRES that a bill explicitily state that it is intended to be retroactive if it is to be, in fact, retroactive, 2270 does NOT contain the required provision of ARS 1-244. Hence, no matter what anyone tells you or what anyone "intended" with the bill, it is NOT retroactive as currently written. We can only speculate about WHY it has been touted by AFSC and others as being retroactive. It may be that misleading people into thinking it would affect currently incarcerated people is a way to garner more active or vocal support for the bill, as there might be a perception that most current inmate families wouldn't take time off work, make phone calls or write emails, attend rallys, etc., or do other activities to support the bill if they knew it would not directly impact their own loved one in prison. That is not to say the bill does not have support from some released offenders. However, the majority of people not usually involved in legislative lobbying for this bill are people with a family member currently incarcerated. We've met many of them and they are somewhat shocked when we tell them the bill would not apply to anyone currently in prison.

The FACT is: ARS 1-244 says,"NO STATUTE IS RETROACTIVE UNLESS EXPRESSLY DECLARED THEREIN." Folks, it can't be more clear than that. If this language is not included in a legislative bill, then the bill, if passed into law, is NOT retroactive. In order to make HB 2270 retroactive (apply to persons already incarcerated) it would have to include the required language. HB 2270 is not retroactive, no matter what anyone tells you.

Don't believe us? We submitted the following question to DOC's legislative lobbyist: "As written, and if passed into law, would the DOC consider HB 2270 to be retroactive?" The response: "No."

Current Status of the Bill: The Rules of the Arizona House and Senate require that all bills originating in each chamber must have been heard in the originating chamber in at least 1 assigned committed on or before February 22, 2019. As of that date, HB 2270 had not been heard in any of the 3 committees it was assigned to: Judiciary, Public Safety, Rules. Therefore, the bill is "dead" for this session. Are there ways to revive it? Yes, but it is extraordinarily difficult to imagine a scenario wherein this bill could be resurrected. It would have to be attached as an amendment to a bill that has already passed out of committee that has made it to the House floor for a vote of the full House (called COW: Committee of the Whole) OR the entire content of the bill could be attached to another bill that has already been heard and passed out of committee, striking all the language of the old bill and inserting the language of 2270. Then the bill would be connected to a different bill number. This is called a "striker." The reason these scenarios are so unlikely is that the leadership of the House, including the Speaker and other caucus leadership, would have to agree and support thise actions. Since the bill has already been shunned by chairmen of the Judiciary and Public Safety committees, one must assume that it simply does not have the support of the leaders who have the most influence in the House of Representative.

Also, keep in mind that any bill that passed out of the House must also go to the Senate, be assigned to at least 2 committees in the Senate, and must pass out of the Senate from the floor vote. If it was amended in any way during the process, it must then go back to the House for yet another floor (COW) vote before going to the Governor's office.

At a recent criminal justice forum breakfast that we attended, sponsored by Arizona Capitol Times, HB 2270's sponsor. Rep. Walter Blackman, stated that he has not discussed the bill with the Governor's office and does not have any indication of whether the Governor would sign such a bill if it landed on his desk.

Folks, this is not the way major criminal justice/sentencing reform can take place. We were actively involved in 1993 when the criminal code changes were proposed which became effective on January 1, 1994. We opposed most of the changes. The bill that succeeded in passing was endorsed and wholeheartedly supported from the beginning by the Goveror's office and the Governor sent many messages to Legislative leaders to indicate his support. It also happens that millions of dollars of federal congressional incentive monies were offered as an inducemente to the State to adopt the sentencing code ("truth in sentencing" or 85%) which became effective 1/1/94. The changes in the code were not retroactive. Victim's rights groups were active, prosecutors, defense attorneys, and Middle Ground Prison Reform were all brought together as stakeholders. Some sentences for some crimes were reduced, and we supported those changes. Some penalties were increased, and we voiced our concerns about those, too. The point is that many, many groups came together and that is the ONLY way we believe that an entire overall of the criminal code can and will occur. HB 2270 has NOT been vetted by the necessary stakeholders, nor does anyone have even a clue about whether the Governor is on board with major sentencing reform.

At the breakfast, we had an opportunity to see first hand just how staggering is the mis-information about this bill. First, the panelists, including AFSC, ACLU, Americans for Prosperity and Reps. Engel (Tucson ) and Rep. Blackman (Snowflake) all indicated that they believe HB 2270 is retroactive. Second, the lone sponsor, Rep. Blackman, admitted he has never spoken to the Goveror's office on the subject of sentencing reform on any level. In fact, he stated he contacted the Governor's offce, but got no response. Doesn't that indicate how a major sentencing reform bill might be received if it ever made it that far?

If proposals are made which include reducing sentences for dangerous and even violent offenders, as well as for some sex offenders, victim's will need to be consulted and in agreement, like it or not. Like it or not, prosecutors will have considerable sway in the process. That is a reality that cannot be ignored or disregarded, as some current supporters claim.

In short, while we certainly support sentencing reform, we also have been around long enough to know that intelligent, well supported and researched incremental changes have the best chance for success.

One statement made by one panel member at the breakfast was, "We've tried incremental changes and we get nowhere. So, we decided if we're going to have a fight, lets fight over something big." This was her reasoning behind supporting HB 2270 -- because it virtually changes almost every sentence in every crime category. The question is: If they got nowhere with suggesting incremental changes, why would anyone logically think that they could achieve much more drastic, comprehensive changes? It just doesn't make sense. Incremental changes are the way to go, even if they must be sought year after year and political whim after poitical whim.

HB 2270 is dead. It won't pass out of the House, even if it manges to circumvent the ordinary committee hearing process and makes it to a floor vote. Worse, it won't make it through the Senate. Too many powerful people oppose it and they will work both openly and behind the scenes to make sure it never becomes law. It does not have support that is needed within the legislative LEADERSHIP, and that is how our political process works, like it or not. It is too broad, too ambitious, and seeks too much change. It is poorly written (we haven't even pointed out the deficiencies in its language with respect to dealing with unexpired prison terms once a person finishes up his community supervision time, the fact that AFSC has advertised some of the changes as resulting in a sentence of 65% when, in fact, the math in the bill results in 75% sentences for those particular offenders, and other problems with the way it is written). Worst of all, prisoners and their families were DUPED (and some are still being duped) into believing that the bill was retroactive. Our hearts break for the false hope and pain that this has caused to many. It is cruel and selfish to have done this to so many people just to trick them into supporting a bill they otherwise might not have supported or cared about. We suspect the same or a similar bill will be introduced in next year's session, but it will, of course, be given a different number. Meanwhile, we will be working with some legislators for next session to introduce sentencing reform that is more moderate (middle ground), and has a much better chance of passing into law.


Middle Ground has been working to support some bills that are, in fact, moving through the committees, obtaining stakeholder support and counsel to recommened changes, and have the support of Legislative leadership. As you can see from the below, the most successful proposals are ones that make incremental changes rather than sweeping ones. Here's a sampling:

SB 1310: Proposes to allow 1 additional day of release credit for every seven days served for a prisoner convicted of drug possession or use only and who has successfully completed a drug treatment program. Does not include drug sales, transportation or manufacture. Does not include people convicted of violent or aggravted felonies.

This would be in addition to the 1 day of earned release for every six days incarcerated that already applies to everyone not serving flat-time.

HB 2424: Changes the initial classification of a Class 6 undesignated offense from a felony to a misdemeanor, which will impose fewer collateral consequences during a probationary period (jobs, housing, etc.) that currently occurs with the mandatory felony designation.

SB 1092: Proposes to expand the eligibility for the Transition Program, but also imposes some exceptions. Passed committee. Has not had floor vote in Senate.

HB 2361: Limits the use of historical priors when the court is sentencing for multiple offenses cosolidated for trial or sentencing, but not committed on the same occasion. The historical prior under this bill is limited to priors for which the person was convicted and sentenced before the person committed the current offense. This bill eliminates one of the uses of "Hannah" priors. This bill made it though committees (we testified in favor), but has been held from getting a floor vote so far.

HB2602: Requires the court to make a determination in each case whether multiple sentences will be consecutive or concurrent, with no presumption either way. This could have major impact. As of now, a judge must issue consecutive sentences unless he is willing to put on the record his reasons for a set of concurrent sentences. This bill would require that the judge make an individual determination each time he has a defendant before him who is to be sentenced on multiple counts. We supported.

HB 2613: Makes complex changes to requirements for termination of sex offender registration. The bill passed out of committee, but has had objections in caucus and has not made it to a floor vote. We supported the bill.

HB2660: Puts limits on the State from disqualifying a person from a state job based upon a felony conviction. States that the conviction had to have occurred within 7 years of date of job application. We suported. The bill has passed committees, but has not made it yet to a floor vote.

Keep in mind that Middle Ground has no paid lobbyists. All our work is volunteer work -- based upon our strong belief in the work we are doing. If any of the above bills run into difficulty or are not moving along, we may contact those of you on our alert list to ask you to contact your legislative representatives (in House or Senate). James and I have been spending on average 2 days/week at the Legislature for hearings , plus stakeholder meetings, etc.

If you have questions, we'd be happy to try to answer them. Remember, NO BILL has retroactive application unless it specifically says so in the bill. If any of the above bills were proposed to be retroactive, we would have mentioned it in the comment. Unless a bill is specifically passed as an EMERGENCY, it goes into effect 100 days after the date of sine die (the date the legislature formally adjourns for the session). So, most bills that are passed into law will go into effect in late August or early September 2019.

Again, we'd like to get this information distributed as much as possible to prisoners throughout the system in both state operated and private prisons. Please print this off and send it to someone in prison.

Donna Leone Hamm, Judge (Ret.)

Director, Middle Ground Prison Reform

CEO, Donna Leone Hamm Consulting

139 East Encanto Drive

Tempe, Arizona 85281

(480) 966-8116

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