Arizona has a huge prison population. Lawmakers take no action to change that. Why?

Finally, they thought. Changes to some of Arizona’s strict criminal-justice statutes could be on the way.

Advocates of reform believed some conservative lawmakers were taking up the cause after years of tough-on-crime laws had helped boost the state’s incarceration rate to the fourth-highest in the country.

In January, Republican Rep. David Stringer of Prescott was leading a bipartisan study group on criminal-justice reform. A bill to make possession of small amounts of marijuana a misdemeanor instead of a felony had attracted 36 co-sponsors, 18 of them Republican.

And Rep. Eddie Farnsworth of Gilbert, a Republican known for killing reform bills in the judiciary committee he chaired, was sponsoring three reform-friendly bills. One would have given people with nonviolent felony convictions a chance to seal their criminal record from the public after two years, making it easier for them to get jobs and housing, potentially easing their reintegration into society.

Suddenly, the bill changed. The night before it was to be heard in committee, an amendment boosted the waiting period to seven years from two. Another removed language about shielding records from the public, essentially defeating the bill's purpose.

The amendments were added by Farnsworth, but the bill’s new language echoed a talking point of Maricopa County Attorney Bill Montgomery, who contended that seven years are needed to gauge if someone would reoffend.

Prosecutors wield influence

Arizona’s justice-reform advocates, in general, push for decreasing jail and prison populations and helping those in the criminal system readjust to freedom. They have grown accustomed to watching their bills be watered down or disappear in the Republican-dominated Legislature.

More often than not, those efforts are tied to elected county prosecutors blocking reform efforts as part of their law-enforcement agenda, reform advocates say.

In the past few years, Arizona's prosecutors have opposed bail reform, sentencing reform and lighter drug sentences while supporting stiffer penalties for a number of offenses.

While they don’t sit on committees or vote, a handful of county prosecutors play an outsized role at the Legislature.

Montgomery, Yavapai County Attorney Sheila Polk and, until this year, members of the Arizona Prosecuting Attorneys Advisory Council frequently sign in support of or opposition to criminal-justice bills and occasionally testify to a committee about them.

But prosecutors’ real power may be wielded behind the scenes, through private conversations with legislators, according to reform advocates.

Montgomery is one of the most influential. It’s not uncommon, advocates say, to watch key lawmakers repeat Montgomery's language, or for him to meet with a bill’s sponsor hours before it is scuttled.

Their influence frustrates Arizona Republicans and Democrats who have attempted even incremental steps toward reform. Most of the time, the effforts hit a brick wall.

“Bill Montgomery fought, (and) APAAC will fight anything you do in sentencing reform,” said former Republican Rep. Cecil Ash, who served from 2009 to 2012.

MORE: Arizona prosecutors' report on prison population blasted by reform advocates

'I don't drive anything'

In an extensive interview with The Arizona Republic, Montgomery dismissed the notion that he has dictated legislation.

“At the end of the day, the power argument is ridiculous,” he said, noting a civil-asset forfeiture bill that passed last year over his opposition.

“I don’t have a vote,” he said. “I don’t sponsor legislation, and I don’t get to vote on committee, I don’t get to vote on the floor and I don’t sign bills into law.”

Montgomery says he does what Arizona prosecutors have done for years: offer data and opinions on criminal-justice issues to any lawmaker who asks.

“Having open, honest conversations with legislators and prosecutors makes for good criminal-justice policy,” he said. “But I don’t drive anything.”

A review of of the bills supported by Montgomery or the lobbyist for the County Attorney's Office shows overwhelming support of tough-on-crime causes. Meanwhile, many reform bills that he opposes fail to get a committee hearing.

Arizona's 2018 Legislature did not enact any major sentencing reforms before adjourning May 4.

"What is most frustrating is our falling so far behind is not due to lack of support among lawmakers or the general public," said Marilyn Rodriguez, a lobbyist for the Arizona Attorneys for Criminal Justice. "The blame lies with a few prosecutors, who work the political system to prevent common-sense and popular reforms from ever receiving a vote."

Harsh sentencing laws under scrutiny

In the early 1990s, states started enacting tough sentencing laws in response to spiking rates of violent crime. As crime rates fell, many states continued to pass increasingly stiff penalties for a number of infractions.

U.S. incarceration rates have swelled by 500 percent in the past 40 years, in large part because of sentencing laws.

Only Louisiana, Oklahoma and Mississippi have higher incarceration rates than Arizona, according to the U.S. Department of Justice. Reform advocates attribute Arizona's high ranking for imprisonment partly to the state's harsh sentencing laws. One in particular is Arizona's truth-in-sentencing statute, which requires prisoners to serve 85 percent of their sentence.

In recent years, groups as diverse as the American Civil Liberties Union and the Charles Koch Foundation have raised alarm that the pendulum has swung too far and sentencing is too harsh, especially for those incarcerated for drug crimes.

States have dealt with this backlash in different ways. Some have enacted major changes to their sentencing laws. But the reform movement to date has found little traction in Arizona, where many lawmakers and prosecutors believe revamping the current sentencing scheme could take a toll on public safety.

Prosecutors say the laws have kept people safe by taking violent and repeat offenders off the streets.

"As incarceration rates have increased, crime rates have plummeted throughout the state – exactly the result one would expect from an effective sentencing regime," a website run by APAAC states.

Criminal-justice reform advocates point to several other states that have lowered imprisonment rates while keeping crime rates low.

The Mississippi Legislature, for instance, in 2008 began rolling back its truth-in-sentencing laws that forced inmates to serve 85 percent of their sentence. The reforms have helped trim prison populations by 18 percent and crime rates have continued to fall, according to data analyzed by the Sentencing Project.

Montgomery said he isn't convinced that similar sentencing reforms would work for Arizona.

"Not every state has the same kind of criminal environment, so you’re not comparing apples to apples," he said.

POLICING THE USA: A look at race, justice, media

What prosecutors say carries weight

Republicans hold a majority in both the House and Senate, and many view Montgomery as a knowledgeable resource.

“One of the reasons I think people really listen to Bill Montgomery is that he’s an elected official in the largest county in the state and a well-regarded prosecutor,” said former Rep. Ethan Orr, who served from 2013 to 2015 and was on the House Judiciary and Public Safety Committee. “Many members are ideologically aligned with him, which means they’re going to be more inclined to support his policy proposals.”

Nathan Wade, a Pima County public defender who lobbies for the Arizona Attorneys for Criminal Justice, said he first noticed the disparity in lobbying influence between reformers and prosecutors when he worked at the Legislature as an intern in 2012.

"(In the past) it’s literally just been this group of prosecutors ... that write the bills that they want, and they’ve been just handed off and rubber-stamped," he said.

Wade said a coalition of reform advocates is gaining traction, though. It includes members of the American Civil Liberties Union of Arizona, the American Friends Service Committee, Middle Ground Prison Reform, Arizona Attorneys for Criminal Justice and some conservative-leaning reform groups such as Right on Crime.

"I think the tide is turning a little bit through the coalitions that we’ve built," he said. "But I would say, from things that I saw this session, they (prosecutors) are going to fight back. They still have more access and they still have more power at this point."

Taylor Pendergrass, a senior campaign strategist with the ACLU, said the prosecutors' power in Arizona is seen in other states.

Across the country, prosecutors are motivated to maintain "this incredible leverage that they have over people in the criminal-justice system," through harsh sentencing laws or high bail recommendations, he said.

"The way prosecutors have been blocking criminal-justice reforms is totally out of step with constituents," he said. "Overwhelmingly polls show that people support criminal-justice reforms to reduce incarceration."

Bills disappear without explanation

Earlier this year, a bill sponsored by Republican Sen. Nancy Barto would have expanded the Arizona Criminal Justice Commission to include two members of the defense bar and one psychologist who has worked in the justice system.

The taxpayer-funded commission was set up by Arizona statute as a resource for the criminal justice community on issues such as drugs, gangs and victim assistance. It includes prosecutors and law-enforcement officials but to date no defense attorneys.

No prosecutor or prosecutor lobbyist officially signaled support or opposition of the bill. But just before it was to be heard in committee, Montgomery met with Barto. Hours later, the bill was dropped from the committee schedule.

Both Barto and Montgomery confirmed to The Republic that they spoke about the bill. Montgomery said he would have opposed the bill if it had received a hearing, and said the duty of defense attorneys is to the individual client, not to the criminal-justice system.

Barto denied that Montgomery swayed her to drop the bill. She said she believed that he goals of the Legislature didn’t require a change in the commission's membership.

Asked specifically about Montgomery’s comments on the bill, Barto said, “It really wasn’t that concern that made me decide to go a different direction.”

A number of other reform bills never see the light of day.

Farnsworth did not to grant a hearing to Stringer's HB2303, which would have reduced drug penalties and increased drug thresholds required for a suspected possessor to be charged. No hearing was granted to HB2597, the bill with 36 bipartisan co-sponsors that would drop a felony designation for possessing small amounts of marijuana.

No prosecutors publicly supported or opposed either bill, but Montgomery told The Republic he opposed both. Reducing marijuana possession to a misdemeanor would have pushed cases to the city courts, he said, which aren't equipped to send defendants to treatment programs.

A key ally at the Legislature

Those interviewed by The Republic said Farnsworth is Montgomery's greatest ally at the Legislature. As judiciary committee chair, Farnsworth has the power to schedule a bill’s hearing or deny it one. A denial effectively ends a bill's chance to become law.

Farnsworth and Montgomery's warm relationship was evident at a hearing last year, during a rare disagreement over a civil-asset forfeiture bill. The bill, which passed, tightens rules on property seizures by police. Prosecutors receive a cut of these asset-forfeiture funds.

“It’s unfortunate that you’re wrong at this time, but I look forward to that not happening again for another 15 years,” Farnsworth told Montgomery.

Farnsworth did not respond to multiple requests for comment.

Lawmakers say Farnsworth has taken little interest in reform conversations.

Ash, who attempted reform measures during his time in the Legislature, said he tried to meet with Farnsworth on several occasions, but Farnsworth never responded to his requests. In contrast, Ash said, Farnsworth consistently pushed bills from Montgomery.

"It generally seemed to be Eddie running Bill Montgomery's bills," Ash said. "He just always seemed to be taking the same position as the prosecutors take."

Stringer said Farnsworth has never attended one of his and Tucson Democratic Rep. Kirsten Engel's reform-oriented meetings, although he has been invited. The weekly meetings often featured a different speaker from both sides of the debate.

Farnsworth did, however, call a meeting for several Republican members of the Arizona Legislature to hear a presentation from Montgomery, Polk and Steve Twist, a Republican operative and former Arizona assistant attorney general. Twist is known as the architect of Arizona's sentencing laws.

In 2017, a package of bipartisan reform bills was developed to reduce the burden of fines and fees on low-income people. The bills sailed through the Senate, including one that would allow a judge to reduce fines and fees and another that imposed driving restrictions rather than suspensions in certain cases.

The bills enjoyed wide bipartisan support. But no prosecutor signed in support or opposition of the package, and Farnsworth declined to grant it a hearing.

By 2018, Farnsworth was the sponsor of nearly identical legislation. Later in the session, though, Farnsworth offered amendments that would not allow judges to reduce fines and fees, only certain surcharges. Prosecutors supported the package, and Gov. Doug Ducey signed it into law.

Stringer, also a member of the House judiciary committee, said Montgomery and Polk are frequently referred to as the “sponsors” of certain bills.

“Bills that come out of judiciary very often carry the chairman’s name, but Farnsworth gets these bills from the prosecutors,” Stringer said. “And I’ll hear that, this is a Steve Twist bill, or a Bill Montgomery bill or a Sheila Polk bill,’ and it’s always said in the context of, ‘You want to be careful about opposing this because this is really being proposed by someone powerful.’”

Montgomery acknowledged that he spoke with Farnsworth about his concerns with the bills to defelone marijuana and reduce drug penalties. Neither bill received a hearing. But he denied that his comments swayed Farnsworth.

"I've gotta tell you, you can’t get Eddie to do anything he doesn’t want to do," Montgomery said. "He has very strong principles about the role of the Legislature and the role of executive-branch officials."

Rep. Jay Lawrence, R-Scottsdale, said he considered Montgomery an “outstanding law officer” and a “hero."

“He is a respected county attorney, (but) I would not go so far to say that we are sycophants,” he said.

Support for tough-on-crime bills

The Republic reviewed all bills officially supported or opposed by Montgomery or his lobbyist in the past two legislative sessions.

Of those that would have an effect on criminal justice, the review found that they supported 18 bills to increase penalties, remove a defense or expand the parameters of a crime. They opposed no bills calling for softer penalties.

Bills in 2018 with a punitive value included HB 2243, which included stiffer penalties for wrong-way drivers. The wrong-way driver bill passed with bipartisan support, and Ducey signed it into law.

TALKING POLITICS: Listen to our Arizona politics podcast, The Gaggle, on Apple Podcasts, SoundCloud, Stitcher or Google Play.

But the other Montgomery-backed bill in 2018 died in the House. HB 2068, which would have prohibited those on probation from using medical marijuana, died in the House on a 34-22 vote. It required a three-quarters majority.

Reform advocates say most of the bills they support fail to receive hearings, meaning it's unnecessary for prosecutors or other lobbyists to take an official position.

Of those that did get hearings, Montgomery's office supported seven and opposed three. None became law.

Middle-of-the-road rhetoric

Outside the Legislature, at public speaking engagements, Montgomery and Polk tout a middle-ground approach to criminal justice.

Montgomery often refers to a 1996 ballot initiative that made Arizona among the first to treat drug offenders before incarcerating them on their first offense.

Montgomery, who first was elected as Maricopa County's top prosecutor in a special election in 2010 and re-elected in 2012 and 2016, said he's neutral when it comes to reform.

"Where the data supports it, I'm all for it," he said.

He opposes changing truth-in-sentencing laws because of the pervasiveness of drug trafficking throughout Arizona.

Even though other states have lowered crime rates, he said Arizona often outpaces them.

Montgomery said reform advocates don't take into consideration what prosecutors do in their day-to-day activities. It was Arizona prosecutors, he noted, who asked for a statute change in 2012 that would offer diversion to defendants with a prior felony. And his office started a felony pretrial intervention program as an alternative to court prosecution.

"This isn’t an either-or-approach," he said. "It’s both treatment and prison for different populations."

Polk has spoken about a “carrot-and-stick” philosophy, meaning that criminal justice should be a balance of both punishment and incentives.

A bill she supported this session though, strongly favored the stick. HB 2241, which would have given first-time opioid sellers a mandatory five-year prison sentence, was hotly contested by reform advocates. The bill passed the House, over objections by Stringer and Engel, but was not given a hearing in Senate.

Will Gaona, policy director for the state ACLU, said the measure would have been a move backward.

“We know from experience in Arizona that these tough-on-crime bills do little to deter drug use,” he said.

In an interview, Polk said the bill was suggested by a Yavapai County substance-abuse coalition, which made recommendations on bills involving drug treatment and punishment.

"I see myself as a resource," Polk said when asked about her role at the Legislature. "If I see something that I think is not good public public policy, then I try to speak up and reach out to legislators, as a person with criminal-justice expertise."

Focus on reducing recidivism

Polk and Montgomery say the state should do more to reduce recidivism, or the tendency of a criminal to reoffend. The issue has been a talking point for Ducey.

Montgomery said he believes prosecutors and reform advocates could find middle ground in efforts to reduce recidivism. He said more treatment should be offered inside the prisons.

"If we were successful in keeping just half of that population from coming back to prison, that’s over 11,000 people," he said. "You could shut down more units in DOC.”

MONTGOMERY: Arizona has about 3 years to stop prison recidivism

Caroline Isaacs, an American Friends Service Committee program director, said Arizona's rate of recidivism, 53.5 percent, is "abysmal."

But Montgomery's suggestion is probably the least efficient and effective way to address crime, she said.

"What you’re doing is waiting until people commit a crime and punishing them harshly with overextended sentences, which comes with an entire litany of trauma and very serious collateral consequences."

SEE RELATED COVERAGE: