Lawmaker: Virus makes need for change to sentencing laws greater than ever

By Arren Kimbel-Sannit

In the final meeting of Rep. Walter Blackman’s sentencing reform committee, a group assembled to craft and analyze policies to reduce the state’s bloated prison population and dial back on harsh sentencing laws, the Snowflake Republican had a simple message to his colleagues: If you can’t imagine voting for these bills, instead imagine yourself in prison.

Months later, the proposals that committee developed — namely one that provided for the early release of thousands of people incarcerated for nonviolent offenses — are in limbo, sidelined by a pandemic that truncated the legislative session.

But as the COVID-19 virus spreads, Blackman said the need for those changes is greater than ever. And his core message hasn’t changed.

“To put yourself in the shoes of someone who is in that situation who is helpless…that has to be the most depressing feeling in the world,” he said.

The Arizona Department of Corrections Rehabilitation and Reentry has been the subject of a daily torrent of criticism over its handling of the virus from the media, from activists, from the families of incarcerated people and from lawmakers for weeks.

The criticisms have struck a similar tone: a widespread lack of transparency about who was being tested, uncertainty about adherence to social distancing and quarantine guidelines, reports of inadequate supplies of soap and paper products. In late March, a lieutenant filed a whistleblower report claiming that the department’s director, David Shinn, was banning guards from wearing protective masks for fear of spooking inmates.

“Like other places, the DOC suffers the lack of hand sanitizers, wipes and masks,” reads a letter sent to Rep. Kirsten Engel, D-Tucson, by an individual with a relative who works for the department. “It is entirely possible that soon additional corrections officers will be infected and I worry that those who are not will be required to work overtime with thin staffing because there are no plans to deal with multiple infections and the resulting staff shortages.”

The department has responded to some concerns, in part thanks to court orders in an ongoing lawsuit over inadequate medical care in the system, Parsons v. Shinn. It waived copays for certain doctor visits, stopped charging for soap and ceased prisoner transfers. And eventually, it started releasing data about who it was testing.

So far, the department has said publicly that three inmates have tested positive — though only a fraction of the 500 inmates and staff the department is monitoring have been tested at all.

This is all frustrating for Blackman, one of many Arizona lawmakers who over the years have sought to amend the state’s sentencing laws — some of the strictest in the country — and improve prison conditions, mostly to no avail. Of course, there are the humanitarian concerns. But more than that, Blackman feels he could have played some role in stopping this from happening.

One of the handful of bills designed to revamp the system that he proposed this session was H2894, legislation that would have established an Office of the Independent Corrections Ombudsman, a position with duties that include monitoring the conditions of confinement and establishing a uniform data reporting system for complaints against the department. It was one of three similar proposals this session — two from Blackman and one from Rep. Diego Rodriguez, D-Phoenix, a Democrat who serves on the House Judiciary Committee with Blackman.

“If that bill was passed when I pushed it, then we would not be having these sorts of problems in ADC,” he said.

The point of the bill was to make a good-faith effort to help the department overcome these challenges — criticisms of the agency’s transparency go back long before the days of COVID-19. It would have created an 11-person committee to help provide oversight and appoint that ombudsman, given the office the authority to investigate inmate complaints, conduct annual reports of prison conditions and so on. But the bill was never heard in committee.

“I don’t think the ADC is beyond help, I think it’s in desperate need of help,” said Molly Gill, vice president of policy for Families Against Mandatory Minimums, a non-profit advocacy group. “A lot of the proposals would have provided the kind of help that the ADC needs. Oversight, for example…this whole crisis is an illustration of why we need an oversight body.”

But the bill never got off the ground. Even if it had, it likely would have been subject to vociferous resistance from the corrections system, prosecutors and other key figures in the debate to remake the criminal justice system — the same resistance that’s doomed efforts year after year, including a suite of similar Blackman bills from last session.

One of those bills was an effort to offer earned release credits for a large group of non-violent offenders, offering them a day or a day and a half off their sentence for every six days served, provided they complete some programming inside of the prison system. It’s the signature issue for the Legislature’s change-minded caucus, and it would deal at least a glancing blow to the state’s truth-in-sentencing laws, which require people to serve 85 percent of their sentences.

He renewed his effort this year, and this time found success. The bill passed out of the House on a unanimous vote shortly after it found a path through the House Judiciary Committee, chaired by Rep. John Allen, R-Scottsdale — an occasional foe and sometimes friend to the sentencing change movement.

“We wouldn’t be so worried about COVID-19 in our prisons if they weren’t overcrowded,” said Gill. “What the … crisis is going to reveal to us is we put too many people in prison for too long and there are a lot of people in prison who don’t need to be there.”

The earn-release bill was supposed to help, with the added benefit of saving the state money that could instead be reinvested in helping the prison system respond to the virus, Blackman suggested.

But by the time the Legislature suspended its session so lawmakers could weather the storm in their districts, the bill hadn’t moved in the Senate, where it was stuck in that chamber’s Judiciary committee.

It’s one committee and one guy,” Blackman said, referencing Sen. Eddie Farnsworth, R-Gilbert, who chairs the committee and who change advocates regularly deride as a gatekeeper.

Even after its passage from the House, there were lingering doubts about the bill, which was softer than last year’s version and would have required the department to provide re-entry services it may not have the resources to offer. But it would have been a step in the right direction, supporters say.

“Now what we’re seeing is a potential death sentence for people,” said Rebecca Fealk, a program coordinator for the American Friends Service Committee of Arizona. “Here’s an entire chunk of the Arizona population who are now in a fertile environment for an outbreak and who have been set aside by our lawmakers.”

Arizona’s case is not unique, and in many ways could be worse off. Cook County Jail in Illinois is home to the country’s largest cluster of cases — 401, as of the most recent count. Still, other states have taken more decisive action.

In Kentucky, Gov. Andy Beshear plans to release more than 900 people from the prison system, commuting the sentences of 186 low-level felons and streamlining the release of 743 people nearing the end of their sentences.

Gov. Doug Ducey, meanwhile, has only commuted the sentences for three inmates, all of whom were terminally ill. And Arizona is one of the few states in the country with no medical parole, despite occasional efforts by lawmakers to create such a program — including by another change-minded Republican, then-Rep. Cecil Ash of Mesa, in 2010

Blackman’s hope is that the virus could provide the momentum needed to get at least some of his bills across the finish line if and when the Legislature returns. Allen, the House Judiciary Chair, isn’t so sure.

“You have to calculate this 10 different ways depending on what happens,” Allen said.

But he’s still optimistic that an earned-release bill will pass next year — by which time Farnsworth will be retired — if not later this one. By then, however, it may be too late.

“Because of the closed environment, if that thing gets into the prison system, it’s going to spread like wildfire,” Blackman said.

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Creosote Partners is an Arizona firm focused on legislative advocacy, coalition building, and strategic communications.