Ham(m)er Time!: Criminal justice bill earns veto over unintended consequences

After his election in 2010, Maricopa County Attorney Bill Montgomery established a Business Advisory Council, which I have been fortunate to serve on since the group’s founding. The council meets periodically to learn about criminal justice issues that affect employers, and to provide feedback to the prosecutor’s office about workforce needs.

The dialogue between the business community and the county attorney has been productive over the years in creating an open line of communication with Arizona job creators. In a council meeting earlier this year, the county attorney brought to the council’s attention a legislative proposal with possible negative ramifications for the business community.

The bill, Senate Bill 1334, sought to change the state’s repeat offender law and ultimately passed out of the House and Senate in May. Immediately Arizona’s top prosecutors sounded the alarm about unintended consequences that could result from the bill’s passage.

In a joint letter to Governor Ducey, Maricopa County Attorney Bill Montgomery, a Republican, and Pima County Attorney Barbara LaWall, a Democrat, called on the governor to veto the legislation, which they said would “jeopardize public safety and incentivize serial offenders.”

The legislation would have changed the way Arizona’s repeat offender law is applied to individuals who commit multiple crimes before they are caught. Under current law, prosecutors could charge individuals in this situation as a repeat offender. SB 1334 would have changed that.

In their letter to Ducey, the county attorneys said, “SB 1334 creates a strong incentive for repeat offenders to commit as many offenses as they can before being caught because regardless of the number of people or businesses they victimize, whether two or twenty, SB 1334 requires them to be sentenced as a first-time offender for each count.”

For example, the prosecutors say an individual who is part of an organized retail theft ring targeting the same store over a period of months before being caught would be treated the same as someone caught shoplifting for the first time.

“The damage to Arizona’s retail businesses from organized retail theft is simply enormous,” Montgomery and LaWall wrote. “Mandatory sentencing under our current law is the primary tool for deterrence. Taking that away with SB 1334 creates a great financial harm to the business community and to its customers.”

Critics of the existing repeat offender law cited concerns over unnecessarily incarcerating first-time offenders. But a look at the numbers reveals that incarceration rates aren’t going up.

In fact, according to an Arizona Department of Corrections report, in FY 2009 the total prison population was 40,412 and in FY 2018 it was 42,113. The same report shows that the number of individuals incarcerated fell each of the last two years.

FBI Uniform Crime data compiled for the Maricopa County Attorney’s Office shows Arizona’s overall crime rate has been on an almost steady decline since 2002 and hit a near low in 2017.

Created by MCAO based on DOC population data and FBI (Uniform Crime Reports)

Montgomery and LaWall credit the reduction in crime “in no small part to incarcerating the right offenders using Arizona’s measured and targeted sentencing statutes.”

Governor Ducey ultimately agreed with the Arizona prosecutors about the bill and issued a veto on June 7, writing in the veto letter, “I am concerned with the unintended consequences that may arise from this legislation and the effect these changes would have on victims.”

Glenn Hamer

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