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Bill would let judges opt out on some minimum-sentence rules

February 6, 2019

PHOENIX — A new bill would allow judges to use discretion when imposing mandatory sentences for certain crimes.

Under House Bill 2245, the “Arizona Judicial Discretion Act,” judges can deviate from mandatory prison sentences if the judge decides that the sentence is an injustice to the defendant or is unnecessary for public safety.

“What I’m trying to do is put back the decision of sentencing in the hands of judges,” said Rep. Tony Rivero (R-21), who sponsored the bill.

Rivero said he hopes to see more leniency in sentencing for minor drug crimes. Crimes that involve serious injury or death, sexual assault against a minor, and offenses involving criminal enterprises would be exempt from the discretion.

“It’s my view, personally, that in Arizona not everyone that is in prison should be in prison,” Rivero said. “But, ultimately, let’s put that decision-making in the hands of judges.”

Mandatory sentences are required sentences for certain crimes under the law that judges have no discretion over.

“There’s a lot of categories that that fits into,” said Kurt Altman, state director of Right on Crime, a group aimed at conservative criminal-justice reform measures. “From drug crimes, to violent crimes to different types of crimes where you can find yourself into that mandatory prison sentence.”

Rivero does not think that completely doing away with minimum-sentence rules would get far in the Legislature.

“You need 31 people in the House, 16 in the Senate, and the governor,” Rivero said. “So, I don’t think that you can get it out of either chamber with just a full elimination of mandatory minimums.”

Altman said that completely doing away with mandatory-sentence rules for judges seems like a good idea, but is politically unrealistic. “There are so many different sentencing statutes, and so many different crimes,” he said.

Arizona would not be alone in a measure like Rivero’s. Republican federal lawmakers have proposed such so-called “safety-valve” measures within federal sentencing guidelines.

The federal government has used “safety valve” discretion guidelines since 1994, giving judges the opportunity in certain circumstances for “making certain findings to sentence outside of mandatory prison sentences,” Altman said. He added, “About eighteen states have something along this line, or like this, on the books, including Texas and Oklahoma, which are not ‘soft-on-crime’ states.”

Currently serving his third term, Rivero ran on a fiscally conservative platform, arguing that it is not fiscally responsible for nonviolent offenders to be kept in prison.

According to FWD.us, a bipartisan group working for criminal justice and immigration reform, Arizona has the fourth highest imprisonment rate in the United States.

HB 2245 joins multiple criminal justice reform measures introduced by House Republicans this session.

One of those bills, HB 2270 introduced by Rep. Walter Blackman (R-06), would allow allows prisoners to earn release credits through good behavior and willingly participating in rehabilitation programs. Prisoners who are mandated to serve their full terms don’t qualify.

Another bill, HB 2362 introduced by Rep. Ben Toma (R-22), allows for convicted felons to have their convictions expunged after a certain amount of time has passed.

“What that means is, it doesn’t go away, law enforcement can still see it; if you ever did something else, the prosecution can use it against you,” said Altman, who served as an assistant U.S. Attorney in Arizona and deputy Maricopa County Attorney. “But, for every other reason, you can say ‘No, I no longer have a felony.’”

Criminal justice reform, though a bipartisan consensus, can sometimes face tough opposition from prosecuting attorneys and law enforcement.

Rivero said he hopes to make his bill a priority in the session, with the support of Blackman, who is the vice chair of the House Judiciary Committee that is tasked with criminal justice measures. Blackman and Rivero co-chair the House State and International Affairs Committee.

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