Horizon, Host: Ted Simons

January 18, 2005


Host: Michael Grant

Federal Sentencing Guidelines


  • The Supreme Court throws out the way federal judges determine sentences. ASU law professor Paul Bender talks about last week's rulings and its implications.
Guests:
  • Rob Melnick - Director, Morrison Institute, Arizona State University
  • Chris Herstam - former member of Board of Directors of ASU Morrison Institute and former lawmaker


View Transcript
>> Michael Grant:
Tonight on "HORIZON", a new report by ASU's Morrison Institute compares how Arizona stacks up to other states in several quality of life areas. We'll take a look at some of the statistics and what they mean. Plus, the Supreme Court throws out the way federal judges determine sentences. ASU law professor Paul Bender joins me to talk about last week's rulings and its implications.

>> Announcer:
"HORIZON" is made possible by the friends of Channel 8, members who provide financial support to this Arizona PBS station. Thank you.

>> Michael Grant:
Good evening, I'm Michael Grant. Welcome to "HORIZON". Policy leaders and interest groups frequently throw out state rankings to bolster their cause. Now, an ASU think tank has compiled a comprehensive list of rankings on 10 public policy areas. The Morrison institute's latest report, "How Arizona Compares" looks at where our state ranks in such areas as crime, health care, and education. Before we get to some of the results, let me introduce two people who will talk about them. Rob Melnick is the director of the Morrison institute. Chris Herstam served on the board of directors of the institute. Herstam is a former lawmaker. That's been several years ago, Chris.

>> Chris Herstam:
Yes, it has. About 15 years ago. We're not getting any younger, Michael.

>>Michael Grant:
I won't point that out. Chris, there are a ton of numbers. Give me a 10,000 to 25,000 report look at what you see is the difference between this report and maybe some other reports.

>> Chris Herstam:
This is the most unique report of its kind that I've ever seen. It takes a look at 10 huge policy topics and it provides comparative data, comparing us with the rest of the nation. While at the same time gives us some public opinion polling data, to tell us what Arizonans think about these huge issues. And, as the Morrison Institute does very well, it provides us with policy analysis and choices people are talking about how to improve the state in each of the 10 areas. It gives us a new sense of Arizona by tying all 10 of these topics together. It's a wonderful reference, a wonderful resource, for all citizens, whether they're voters or policy makers.

>> Michael Grant:
You were bemoaning the fact that many Arizonans asked about these areas and how they think Arizona compares, just intuitively say Arizona doesn't compare very well, here, fill in the blank.

>> Chris Herstam:
I was surprised to see in the public opinion polling was that in all 10 areas, whether it be education, crime and punishment, health care, no more than 40\% of the adults polled say that they thought Arizona was doing better than other states. Maybe that's because we have a lot of newcomers, thinking back home, is better. For somebody who has lived here for a long time, I think there has been much progress in several areas and yet the citizenry doesn't give us much credit.

>> Michael Grant:
Doesn't necessarily pick that up. Rob, I think we should return to this point. The data that you're displaying, for example on crime, you go to the F.B.I. statistics, you go to publicly available data, but you also spent some time trying to figure out through experts what would be the best source of data to go to on this particular topic area?

>> Rob Melnick:
The research and data presented were done as a result of work not just for the Morrison Institute or ASU professors, which is certainly part of the research team. But we went to people who lived these data every day, who are experts in each of the 10 area, work in private sector, work in government, in nonprofit areas, and we got a sense of what if you will was the gold standard or reliable data to use. There's a lot of data out there that can be used to describe one subject or another, but to get everyone sort of on the same page is what we were trying to do to provide a common basis to discuss who we compare to other states.

>> Michael Grant:
How do you see the significance in putting it all together in one report?

>> Rob Melnick:
There's two things in response to that. We tried to provide something that's sort of one-stop shopping. Most reports are presented within a silo, within education, within something. By trying to get everything together, we have a new sense of the state. When you put it all together, it is unfortunate, if you will that we rank sort of just fair. And I would suggest that Arizona's not living up to its potential because we have a lot of talent, a lot of resources here, a lot going for us and yet we don't compare very well on a lot of very important things. Certainly we do well on some things, we do poorly on others. What Chris mentioned before, the reflection of what the public opinion said indicates that we could do better.

>> Michael Grant:
Let's take a look at the individual areas and comment on them as we go along. The Morrison Institute pulled rankings for 10 different public policy areas. Topping the list is crime. Here's a look at how Arizona compares.

>> Paul Atkinson:
How does Arizona compare when it comes to crime? South Carolina had 794 violent crimes per 100,000 people ranking first. North Dakota had 78 and is last. Arizona had 513 violent crimes per 100,000 people, ranking 13th. A different story for property crimes, Arizona ranks first, Hawaii second and South Dakota last. When it comes to sending people to prison, Louisiana tops the list. Maine is last. Arizona is 9th, sending 525 people to prison per 100,000 population.

>> Michael Grant:
Chris, Arizona's long border with Mexico generally is regarded to be one of the reasons for the property crime jump that we saw there.

>> Chris Herstam:
Absolutely, because obviously one of the more expensive property crimes you can commit is auto theft. The cars can be taken to Mexico quite easily and taken apart and sold in pieces. So we're one of the worst states with regards to auto theft. Also, closeness to Mexico negatively impacts us with regard to drugs, illegal sale of drugs, substance abuse. About half the crimes committed are usually tied to substance abuse to drugs, so certainly our proximity to Mexico negatively impacts and has resulted in this number one rating.

>> Michael Grant:
Key policy choices here?

>> Rob Melnick:
A lot of what we think we would like to be doing to stop crime is deal with it on the prevention side, not on the punishment. A lot has to do with education, making families whole, making sure there are jobs, people don't have to turn to crime. The kinds of things that are on the table right now before the legislature and other bodies really I think need to emphasize prevention of crime and making people whole enough so they don't have to commit crimes as opposed to dealing with them on the other end through incarceration.

>> Michael Grant:
Health care is a major concern for many people. Here's how Arizona compares on that subject.

>> Paul Atkinson:
In terms of health and health care Minnesota ranks first in a study conducted by the United Health Foundation. Louisiana comes in last. Arizona, 23rd. How much is spent on health care per person, Massachusetts residents spent on average just over $4800 a year. Neighbors to the north spent a little over $2700 a year. Arizonans spent about $3100 a year ranking 48th.

>> Michael Grant:
On the first statistic, there has been improvement by Arizona. It's moved up about 10 places.

>> Chris Herstam:
Right, from about 32nd to about 23rd in the last few years. That could be attributed in part at least to some major initiatives that the voters and the legislature had passed, such as the introduction to kids care and kids care for parents in the AHCCCS system. And then the people of Prop 204 which includes more people on the AHCCCS rolls that have gotten more insurance in our state, indigent health care systems and AHCCCS obviously stresses preventative medicine. I think that's probably had a major impact on improving the overall health care.

>> Michael Grant:
But when you look at the per capita health care expenditure number, one conclusion you can't draw is that we're very healthy. I suspect other people will move to other -- the point being, you don't necessarily drive to one conclusion based just on that snippet of data.

>> Rob Melnick:
One has to be careful of using data in isolation of the full context. I'm not sure I understand what the implications are of that particular piece of data.

>> Michael Grant:
The Morrison Institute looked at "How Arizona Compares" to other states in education. School funding, one of the many areas examined.

>> Paul Atkinson:
Counting the amount spent per pupil and on maintenance and operations funding, New Jersey came out on top, spending $11,793 per student. Utah spent the least at $4900 per pupil. Arizona spent $5964 per student ranking 47th.

>> Michael Grant:
Rob, one of the problems this kind of study presents, there's a ton of studies that indicates there's no real direct correlation necessarily between education and spending and education outcome. But at least on the O and M side of the equation, Arizona, this is not breaking news, ranks pretty low, almost at the bottom.

>> Rob Melnick:
There is some data recently that has begun to change our thinking about that. It is indeed true; the preponderance of data has shown there is not direct correlation between spending and education outcomes as people might think. The real issue is that you have to determine what people are spending the money on. You can spend a lot of money on something and not be effective; you can spend a little money on something and be effective. It depends on what you're spending the money on.

>> Michael Grant:
That would be the explanation, for example, the Washington D.C. school system or the Kansas city school system.

>> Rob Melnick:
You can spend a ton of money on education and not spend it on the things that are going to ultimately make a difference. I would suggest that there are things that you can do very intelligently in spending that would make a difference in education.

>> Chris Herstam:
This is an excellent example of how these topics are interrelated to the report. Elsewhere in the report, it makes the point that we are 12th in the nation. The number of children living in poverty right now is 250,000 kids living in this state in poverty. That negatively impacts health care, crime, and education. When you look at some of the education numbers with regard to graduation rates not only in high school but the higher education, universities and community colleges, you see those in lower economic levels, kids raised in poverty don't do as well. These topics are very much related.

>> Rob Melnick:
Proposition 301 has boosted our spending in education in classrooms and that has made a difference in teachers salaries, and that's one of the most important things you can spend money on.

>> Michael Grant:
How does doing business in Arizona compare to other states? Here's what the Morrison Institute found out.

>> Paul Atkinson:
In terms of job growth, over the last decade or so, Nevada saw an increase of 75\% more jobs coming in at number one. Connecticut, with a job growth of 1.2\% brings it 50th, while Arizona saw an increase in jobs 54.3\%, ranking second only to Nevada. When ranking states on gross state product per capita, Delaware tops the list at $50,918 per capita. By comparison, Mississippi's $23,489 ranks last. Arizona's gross state product per capita is $30,332, ranking 37th overall.

>> Michael Grant:
That was a fascinating statistic, roughly 60\% of Arizona homes have computers.

>> Rob Melnick:
We rank pretty high with that.

>> Michael Grant:
I'm not quite sure -- there are various pieces of data that I don't know what to do with.

>> Rob Melnick:
Some of it is fun. It's probably an indication that we are probably more computer literate than most states, that should be an advantage.

>> Michael Grant:
I'm not sure either one of those statistics, the comment is often made that we add jobs at a very rapid clip but you can make a case they're not the right kind of job.

>> Chris Herstam:
That's right. There are some very low paying jobs, the whole issue of immigrants, illegal aliens coming from Mexico and assuming jobs that are low paying. It's not necessarily the number of jobs but the quality of jobs. I think one area of the report says we're getting more active in science, bio-science, technology, trying to attract the research-oriented higher paying jobs which are critical if we're going to be prominent in a knowledge-based economy.

>> Michael Grant:
The Morrison Institute looked at statistics related to the families and their incomes. What here's what it found out.

>> Paul Atkinson:
How Arizona compares listed how states stack up in per capita income. Connecticut, $43,292 of income per person is top. Mississippi residents make on average $23,343 per person, making it dead last. Arizonans make a few thousand dollars more on average, $26,931 a year, ranking 38th overall. Measuring poverty, 20\% of Mississippi citizens live below the federal poverty level, ranking number one. New Hampshire has the fewest poor at only 7\%. 14\% of Arizonans live in poverty ranking 14th, overall.

>> Michael Grant:
On the policy, do they tie to what we were just talking about a little bit?

>> Rob Melnick:
We need to do something to get better paying jobs here and jobs that have the kind of health care necessary to move us up in the rankings for families and children who have health care. When you have a lot of jobs coming into the state or being created in the state, but those are not particularly high paying jobs, you're going to get this low per capita income, and that's a big problem.

>> Michael Grant:
Thank you for joining us, appreciate the information.

>> Rob Melnick:
Good seeing you.

>> Michael Grant:
If you'd like to read the report for yourself, please visit our website at www.az.pbs.org. If you click on "HORIZON" and look for today's date, you'll find a link to the Morrison Institute's "How Arizona Compares."

>> Michael Grant:
Federal judges no longer have to abide by mandatory sentencing guidelines passed by Congress in the 1980s. The Supreme Court ruled the guidelines unconstitutional last week. But in a separate decision, the high court ruled judges can voluntarily use the sentencing guidelines when determining punishment. What effect will the rulings have on the federal judicial system? To find out, we turned to Paul Bender, a professor at ASU's school of law. This is a strange ruling, Paul. I think, though, I've captured the essence. Justice Ginsberg rules the sentencing guidelines unconstitutional and simultaneously says but they're okay.

>> Paul Bender:
She doesn't say they're okay. It's the same case. The five people, including Ginsberg, say existing guidelines are unconstitutional. Five people, including Ginsberg. But other four are different people, say that even though they are unconstitutional we can save them by saying that federal judges don't have to follow them but are strongly advised to follow them. And if they don't follow them they can be reversed on appeal if the appellate court thinks they were unreasonable in not following them. It's been changed to make it a voluntary system, but I'm sure the people who did that, the opinion written by Justice Breyer who thinks the guidelines are constitutional, is intended to keep as much of the guidelines as possible. The hope is that even though the judges don't have to follow them, they will.

>> Michael Grant:
The reason why they are unconstitutional is familiar to us here in Arizona because it was the line of cases that said in sentencing where facts are determinate of the sort of sentence you get, you have to have that decided by a jury, not by a judge.

>> Paul Bender:
This is all a new development. There is one constitutional individual right this Supreme Court developed, it's the right of criminal defendants in being sentenced to have a jury find the facts that determine their sentence. The court came up with that in the Apprendi case just a few years ago. Applying that to the guidelines, the guidelines will say if you possess marijuana, the range you can get is between five and ten years. But if you possess more than a pound of marijuana, then the range is between 20 and 30 years. Under the guidelines, the jury can find just if you possess marijuana, and the judge based on evidence the jury never hears and finds not beyond a reasonable doubt, by a preponderance of the evidence, a pound as the aggravating factor, has to give you between 20 and 30 years. The majority of the Supreme Court held that unconstitutional under the new rules that facts that determine sentences have to be found by a jury, the Sixth Amendment requires that. The coalition of five judges who did that is one that you would never see in other kinds of cases like this. It's the two most conservative justices on the Court, Scalia and Thomas. And the three most liberal justices on the Court, Stevens, Souter and Ginsberg. That's the five who think it's unconstitutional. And Breyer, who was the architect of the guidelines, along with O'Connor, Rehnquist and Kennedy. Dissent from that. But having lost that, he then gets a fifth vote, Justice Ginsberg comes to his side, for what you do about the unconstitutionality. That fifth vote is for an opinion which says what you do about unconstitutionality is just say they are not mandatory anymore, they are advisory. They have to be considered.

>> Michael Grant:
In order to do that, you effectively rewrite the statute which normally courts will not do. They may alter the result of a statute, but normally if you can sever certain portions --

>> Paul Bender:
Take a scissor and cut out a couple of paragraphs. Breyer says, Look, trust me, I know about this because I did this in the first place. He was on the judiciary committee which started it and he was on the sentencing commission. He says, Trust me, I know if Congress was told it couldn't make it mandatory, instead of having a jury finding the facts, in which case they could be mandatory, Congress says no, no, we'll make them advisory rather than mandatory. I'm sure he hopes in doing that to save the guidelines. That's the big issue. Some people think, Stevens is one of them, a lot of other people outside the court think that what's going to happen now, the judges hated the guidelines because it took away from them discretion that they thought was fundamentally basically theirs. A lot of people think the federal judges are not going to rebel and say we're forgetting about the guidelines, we're going to do what we want. That would be a disaster as far as Breyer and the guidelines are concerned. Breyer's hope is that the federal judges having had experience with the guidelines have come to love them and will follow them except in a few instances. And when they don't, the appellate courts will be willing to follow them and reverse the sentences. Nobody knows who is right about that.

>> Michael Grant: Paul, I realize you don't have a seat on the court, but what do you think was motivating this sort of strange amalgam of result? Was it a concern that if they just simply declared it unconstitutional, Congress would not revisit it at all or were they concerned that if they did revisit it, Congress would revisit in a bad way, however you would define bad?

>> Paul Bender:
That must have been one of Justice Breyer's concerns, is that if he went along with what Justice Stevens and those four wanted to do. Which was to say, If you want to raise the sentence because of a fact, let the jury decide it, have the sentencing, just like in capital punishment, you have separate sentencing proceedings.

>> Michael Grant:
Arizona came to in the wake of Ring.

>> Paul Bender:
I'm guessing Breyer must think if that was a result, Congress would step in and do something and dismantle the guidelines completely because there's a lot of dissatisfaction with them. Mostly from the judges who don't like them and that it was safer to leave the whole thing in place and turn them from mandatory into discretionary. I think he thinks that the Congress will leave that alone and he hopes that the judges will follow it, and so he will end up with a system he wants even though the court held it unconstitutional.

>> Michael Grant:
Leaving both prosecutors and defense attorneys unhappy with the ultimate result?

>> Paul Bender:
I don't know about that. I think that both prosecutors and defense attorneys are split with regard to whether they like the guidelines or not. It may depend upon the particular case involved. This is a difference of opinion about that. In general, I think most people think that the idea of regularizing sentences is a good idea. The problem is the court has held, and I think the court is right, to say if you're going to do that, the relevant facts have to be found by a jury. It's not fair to put you in jail for 30 years instead of five because we think you had a pound of marijuana rather than an ounce when you never had a jury trial on that and wasn't proved beyond a reasonable doubt. It's an interesting coalition of the really conservative people on the court, Scalia and Thomas, who really believe in that right, and the most liberal really ought to believe in that right. The ones in the middle, the more pragmatic people, like O'Connor, Kennedy and Breyer, who say we like the guidelines, let's leave them alone, even though we know in principle they're unconstitutional, let's not apply the principle here. That just doesn't work.

>> Michael Grant:
I suppose demonstrating, once again, that the political spectrum not a line, it is a circle.

>> Paul Bender:
In a couple of years we'll see how this plays out.

>> Michael Grant:
Paul Bender, I appreciate your trying to sort out the mess. I'm sure we'll revisit this more later.

>> Paul Bender:
In a couple of years we'll see how it plays out.

>> Michael Grant:
All right. Paul Bender, thank you very much.


>> Merry Lucero:
Extraordinary images of Saturn's largest moon Titan have been beamed to earth with an imaging system developed at the University of Arizona. Two key U of A space imagery team members join us via satellite interview from Tucson to talk about this historic event this Wednesday at 7 p.m. on "HORIZON".

>> Michael Grant:
Also Wednesday, we'll look at what's being done to keep cities from using tax incentives to fight over retailers. Thursday, we'll look at how a local university is helping teach Afghan women business skills to help rebuild their war-torn economy. And Friday, the journalists' roundtable where a panel of Capitol reporters join me to talk about the week's top stories. That's the rest of the week on "HORIZON". Thank you very much for joining us on this Tuesday evening. I'm Michael Grant. Have a great one. Good night.

How Arizona Compares


  • A new report by ASU's Morrison Institute compares how Arizona stacks up to other states in several quality of life areas. We'll take a look at some of the statistics and what they mean.
Guests:
  • Rob Melnick - Director, Morrison Institute, Arizona State University
  • Chris Herstam - former member of Board of Directors of ASU Morrison Institute and former lawmaker


View Transcript
>> Michael Grant:
Tonight on "HORIZON", a new report by ASU's Morrison Institute compares how Arizona stacks up to other states in several quality of life areas. We'll take a look at some of the statistics and what they mean. Plus, the Supreme Court throws out the way federal judges determine sentences. ASU law professor Paul Bender joins me to talk about last week's rulings and its implications.

>> Announcer:
"HORIZON" is made possible by the friends of Channel 8, members who provide financial support to this Arizona PBS station. Thank you.

>> Michael Grant:
Good evening, I'm Michael Grant. Welcome to "HORIZON". Policy leaders and interest groups frequently throw out state rankings to bolster their cause. Now, an ASU think tank has compiled a comprehensive list of rankings on 10 public policy areas. The Morrison institute's latest report, "How Arizona Compares" looks at where our state ranks in such areas as crime, health care, and education. Before we get to some of the results, let me introduce two people who will talk about them. Rob Melnick is the director of the Morrison institute. Chris Herstam served on the board of directors of the institute. Herstam is a former lawmaker. That's been several years ago, Chris.

>> Chris Herstam:
Yes, it has. About 15 years ago. We're not getting any younger, Michael.

>>Michael Grant:
I won't point that out. Chris, there are a ton of numbers. Give me a 10,000 to 25,000 report look at what you see is the difference between this report and maybe some other reports.

>> Chris Herstam:
This is the most unique report of its kind that I've ever seen. It takes a look at 10 huge policy topics and it provides comparative data, comparing us with the rest of the nation. While at the same time gives us some public opinion polling data, to tell us what Arizonans think about these huge issues. And, as the Morrison Institute does very well, it provides us with policy analysis and choices people are talking about how to improve the state in each of the 10 areas. It gives us a new sense of Arizona by tying all 10 of these topics together. It's a wonderful reference, a wonderful resource, for all citizens, whether they're voters or policy makers.

>> Michael Grant:
You were bemoaning the fact that many Arizonans asked about these areas and how they think Arizona compares, just intuitively say Arizona doesn't compare very well, here, fill in the blank.

>> Chris Herstam:
I was surprised to see in the public opinion polling was that in all 10 areas, whether it be education, crime and punishment, health care, no more than 40\% of the adults polled say that they thought Arizona was doing better than other states. Maybe that's because we have a lot of newcomers, thinking back home, is better. For somebody who has lived here for a long time, I think there has been much progress in several areas and yet the citizenry doesn't give us much credit.

>> Michael Grant:
Doesn't necessarily pick that up. Rob, I think we should return to this point. The data that you're displaying, for example on crime, you go to the F.B.I. statistics, you go to publicly available data, but you also spent some time trying to figure out through experts what would be the best source of data to go to on this particular topic area?

>> Rob Melnick:
The research and data presented were done as a result of work not just for the Morrison Institute or ASU professors, which is certainly part of the research team. But we went to people who lived these data every day, who are experts in each of the 10 area, work in private sector, work in government, in nonprofit areas, and we got a sense of what if you will was the gold standard or reliable data to use. There's a lot of data out there that can be used to describe one subject or another, but to get everyone sort of on the same page is what we were trying to do to provide a common basis to discuss who we compare to other states.

>> Michael Grant:
How do you see the significance in putting it all together in one report?

>> Rob Melnick:
There's two things in response to that. We tried to provide something that's sort of one-stop shopping. Most reports are presented within a silo, within education, within something. By trying to get everything together, we have a new sense of the state. When you put it all together, it is unfortunate, if you will that we rank sort of just fair. And I would suggest that Arizona's not living up to its potential because we have a lot of talent, a lot of resources here, a lot going for us and yet we don't compare very well on a lot of very important things. Certainly we do well on some things, we do poorly on others. What Chris mentioned before, the reflection of what the public opinion said indicates that we could do better.

>> Michael Grant:
Let's take a look at the individual areas and comment on them as we go along. The Morrison Institute pulled rankings for 10 different public policy areas. Topping the list is crime. Here's a look at how Arizona compares.

>> Paul Atkinson:
How does Arizona compare when it comes to crime? South Carolina had 794 violent crimes per 100,000 people ranking first. North Dakota had 78 and is last. Arizona had 513 violent crimes per 100,000 people, ranking 13th. A different story for property crimes, Arizona ranks first, Hawaii second and South Dakota last. When it comes to sending people to prison, Louisiana tops the list. Maine is last. Arizona is 9th, sending 525 people to prison per 100,000 population.

>> Michael Grant:
Chris, Arizona's long border with Mexico generally is regarded to be one of the reasons for the property crime jump that we saw there.

>> Chris Herstam:
Absolutely, because obviously one of the more expensive property crimes you can commit is auto theft. The cars can be taken to Mexico quite easily and taken apart and sold in pieces. So we're one of the worst states with regards to auto theft. Also, closeness to Mexico negatively impacts us with regard to drugs, illegal sale of drugs, substance abuse. About half the crimes committed are usually tied to substance abuse to drugs, so certainly our proximity to Mexico negatively impacts and has resulted in this number one rating.

>> Michael Grant:
Key policy choices here?

>> Rob Melnick:
A lot of what we think we would like to be doing to stop crime is deal with it on the prevention side, not on the punishment. A lot has to do with education, making families whole, making sure there are jobs, people don't have to turn to crime. The kinds of things that are on the table right now before the legislature and other bodies really I think need to emphasize prevention of crime and making people whole enough so they don't have to commit crimes as opposed to dealing with them on the other end through incarceration.

>> Michael Grant:
Health care is a major concern for many people. Here's how Arizona compares on that subject.

>> Paul Atkinson:
In terms of health and health care Minnesota ranks first in a study conducted by the United Health Foundation. Louisiana comes in last. Arizona, 23rd. How much is spent on health care per person, Massachusetts residents spent on average just over $4800 a year. Neighbors to the north spent a little over $2700 a year. Arizonans spent about $3100 a year ranking 48th.

>> Michael Grant:
On the first statistic, there has been improvement by Arizona. It's moved up about 10 places.

>> Chris Herstam:
Right, from about 32nd to about 23rd in the last few years. That could be attributed in part at least to some major initiatives that the voters and the legislature had passed, such as the introduction to kids care and kids care for parents in the AHCCCS system. And then the people of Prop 204 which includes more people on the AHCCCS rolls that have gotten more insurance in our state, indigent health care systems and AHCCCS obviously stresses preventative medicine. I think that's probably had a major impact on improving the overall health care.

>> Michael Grant:
But when you look at the per capita health care expenditure number, one conclusion you can't draw is that we're very healthy. I suspect other people will move to other -- the point being, you don't necessarily drive to one conclusion based just on that snippet of data.

>> Rob Melnick:
One has to be careful of using data in isolation of the full context. I'm not sure I understand what the implications are of that particular piece of data.

>> Michael Grant:
The Morrison Institute looked at "How Arizona Compares" to other states in education. School funding, one of the many areas examined.

>> Paul Atkinson:
Counting the amount spent per pupil and on maintenance and operations funding, New Jersey came out on top, spending $11,793 per student. Utah spent the least at $4900 per pupil. Arizona spent $5964 per student ranking 47th.

>> Michael Grant:
Rob, one of the problems this kind of study presents, there's a ton of studies that indicates there's no real direct correlation necessarily between education and spending and education outcome. But at least on the O and M side of the equation, Arizona, this is not breaking news, ranks pretty low, almost at the bottom.

>> Rob Melnick:
There is some data recently that has begun to change our thinking about that. It is indeed true; the preponderance of data has shown there is not direct correlation between spending and education outcomes as people might think. The real issue is that you have to determine what people are spending the money on. You can spend a lot of money on something and not be effective; you can spend a little money on something and be effective. It depends on what you're spending the money on.

>> Michael Grant:
That would be the explanation, for example, the Washington D.C. school system or the Kansas city school system.

>> Rob Melnick:
You can spend a ton of money on education and not spend it on the things that are going to ultimately make a difference. I would suggest that there are things that you can do very intelligently in spending that would make a difference in education.

>> Chris Herstam:
This is an excellent example of how these topics are interrelated to the report. Elsewhere in the report, it makes the point that we are 12th in the nation. The number of children living in poverty right now is 250,000 kids living in this state in poverty. That negatively impacts health care, crime, and education. When you look at some of the education numbers with regard to graduation rates not only in high school but the higher education, universities and community colleges, you see those in lower economic levels, kids raised in poverty don't do as well. These topics are very much related.

>> Rob Melnick:
Proposition 301 has boosted our spending in education in classrooms and that has made a difference in teachers salaries, and that's one of the most important things you can spend money on.

>> Michael Grant:
How does doing business in Arizona compare to other states? Here's what the Morrison Institute found out.

>> Paul Atkinson:
In terms of job growth, over the last decade or so, Nevada saw an increase of 75\% more jobs coming in at number one. Connecticut, with a job growth of 1.2\% brings it 50th, while Arizona saw an increase in jobs 54.3\%, ranking second only to Nevada. When ranking states on gross state product per capita, Delaware tops the list at $50,918 per capita. By comparison, Mississippi's $23,489 ranks last. Arizona's gross state product per capita is $30,332, ranking 37th overall.

>> Michael Grant:
That was a fascinating statistic, roughly 60\% of Arizona homes have computers.

>> Rob Melnick:
We rank pretty high with that.

>> Michael Grant:
I'm not quite sure -- there are various pieces of data that I don't know what to do with.

>> Rob Melnick:
Some of it is fun. It's probably an indication that we are probably more computer literate than most states, that should be an advantage.

>> Michael Grant:
I'm not sure either one of those statistics, the comment is often made that we add jobs at a very rapid clip but you can make a case they're not the right kind of job.

>> Chris Herstam:
That's right. There are some very low paying jobs, the whole issue of immigrants, illegal aliens coming from Mexico and assuming jobs that are low paying. It's not necessarily the number of jobs but the quality of jobs. I think one area of the report says we're getting more active in science, bio-science, technology, trying to attract the research-oriented higher paying jobs which are critical if we're going to be prominent in a knowledge-based economy.

>> Michael Grant:
The Morrison Institute looked at statistics related to the families and their incomes. What here's what it found out.

>> Paul Atkinson:
How Arizona compares listed how states stack up in per capita income. Connecticut, $43,292 of income per person is top. Mississippi residents make on average $23,343 per person, making it dead last. Arizonans make a few thousand dollars more on average, $26,931 a year, ranking 38th overall. Measuring poverty, 20\% of Mississippi citizens live below the federal poverty level, ranking number one. New Hampshire has the fewest poor at only 7\%. 14\% of Arizonans live in poverty ranking 14th, overall.

>> Michael Grant:
On the policy, do they tie to what we were just talking about a little bit?

>> Rob Melnick:
We need to do something to get better paying jobs here and jobs that have the kind of health care necessary to move us up in the rankings for families and children who have health care. When you have a lot of jobs coming into the state or being created in the state, but those are not particularly high paying jobs, you're going to get this low per capita income, and that's a big problem.

>> Michael Grant:
Thank you for joining us, appreciate the information.

>> Rob Melnick:
Good seeing you.

>> Michael Grant:
If you'd like to read the report for yourself, please visit our website at www.az.pbs.org. If you click on "HORIZON" and look for today's date, you'll find a link to the Morrison Institute's "How Arizona Compares."

>> Michael Grant:
Federal judges no longer have to abide by mandatory sentencing guidelines passed by Congress in the 1980s. The Supreme Court ruled the guidelines unconstitutional last week. But in a separate decision, the high court ruled judges can voluntarily use the sentencing guidelines when determining punishment. What effect will the rulings have on the federal judicial system? To find out, we turned to Paul Bender, a professor at ASU's school of law. This is a strange ruling, Paul. I think, though, I've captured the essence. Justice Ginsberg rules the sentencing guidelines unconstitutional and simultaneously says but they're okay.

>> Paul Bender:
She doesn't say they're okay. It's the same case. The five people, including Ginsberg, say existing guidelines are unconstitutional. Five people, including Ginsberg. But other four are different people, say that even though they are unconstitutional we can save them by saying that federal judges don't have to follow them but are strongly advised to follow them. And if they don't follow them they can be reversed on appeal if the appellate court thinks they were unreasonable in not following them. It's been changed to make it a voluntary system, but I'm sure the people who did that, the opinion written by Justice Breyer who thinks the guidelines are constitutional, is intended to keep as much of the guidelines as possible. The hope is that even though the judges don't have to follow them, they will.

>> Michael Grant:
The reason why they are unconstitutional is familiar to us here in Arizona because it was the line of cases that said in sentencing where facts are determinate of the sort of sentence you get, you have to have that decided by a jury, not by a judge.

>> Paul Bender:
This is all a new development. There is one constitutional individual right this Supreme Court developed, it's the right of criminal defendants in being sentenced to have a jury find the facts that determine their sentence. The court came up with that in the Apprendi case just a few years ago. Applying that to the guidelines, the guidelines will say if you possess marijuana, the range you can get is between five and ten years. But if you possess more than a pound of marijuana, then the range is between 20 and 30 years. Under the guidelines, the jury can find just if you possess marijuana, and the judge based on evidence the jury never hears and finds not beyond a reasonable doubt, by a preponderance of the evidence, a pound as the aggravating factor, has to give you between 20 and 30 years. The majority of the Supreme Court held that unconstitutional under the new rules that facts that determine sentences have to be found by a jury, the Sixth Amendment requires that. The coalition of five judges who did that is one that you would never see in other kinds of cases like this. It's the two most conservative justices on the Court, Scalia and Thomas. And the three most liberal justices on the Court, Stevens, Souter and Ginsberg. That's the five who think it's unconstitutional. And Breyer, who was the architect of the guidelines, along with O'Connor, Rehnquist and Kennedy. Dissent from that. But having lost that, he then gets a fifth vote, Justice Ginsberg comes to his side, for what you do about the unconstitutionality. That fifth vote is for an opinion which says what you do about unconstitutionality is just say they are not mandatory anymore, they are advisory. They have to be considered.

>> Michael Grant:
In order to do that, you effectively rewrite the statute which normally courts will not do. They may alter the result of a statute, but normally if you can sever certain portions --

>> Paul Bender:
Take a scissor and cut out a couple of paragraphs. Breyer says, Look, trust me, I know about this because I did this in the first place. He was on the judiciary committee which started it and he was on the sentencing commission. He says, Trust me, I know if Congress was told it couldn't make it mandatory, instead of having a jury finding the facts, in which case they could be mandatory, Congress says no, no, we'll make them advisory rather than mandatory. I'm sure he hopes in doing that to save the guidelines. That's the big issue. Some people think, Stevens is one of them, a lot of other people outside the court think that what's going to happen now, the judges hated the guidelines because it took away from them discretion that they thought was fundamentally basically theirs. A lot of people think the federal judges are not going to rebel and say we're forgetting about the guidelines, we're going to do what we want. That would be a disaster as far as Breyer and the guidelines are concerned. Breyer's hope is that the federal judges having had experience with the guidelines have come to love them and will follow them except in a few instances. And when they don't, the appellate courts will be willing to follow them and reverse the sentences. Nobody knows who is right about that.

>> Michael Grant: Paul, I realize you don't have a seat on the court, but what do you think was motivating this sort of strange amalgam of result? Was it a concern that if they just simply declared it unconstitutional, Congress would not revisit it at all or were they concerned that if they did revisit it, Congress would revisit in a bad way, however you would define bad?

>> Paul Bender:
That must have been one of Justice Breyer's concerns, is that if he went along with what Justice Stevens and those four wanted to do. Which was to say, If you want to raise the sentence because of a fact, let the jury decide it, have the sentencing, just like in capital punishment, you have separate sentencing proceedings.

>> Michael Grant:
Arizona came to in the wake of Ring.

>> Paul Bender:
I'm guessing Breyer must think if that was a result, Congress would step in and do something and dismantle the guidelines completely because there's a lot of dissatisfaction with them. Mostly from the judges who don't like them and that it was safer to leave the whole thing in place and turn them from mandatory into discretionary. I think he thinks that the Congress will leave that alone and he hopes that the judges will follow it, and so he will end up with a system he wants even though the court held it unconstitutional.

>> Michael Grant:
Leaving both prosecutors and defense attorneys unhappy with the ultimate result?

>> Paul Bender:
I don't know about that. I think that both prosecutors and defense attorneys are split with regard to whether they like the guidelines or not. It may depend upon the particular case involved. This is a difference of opinion about that. In general, I think most people think that the idea of regularizing sentences is a good idea. The problem is the court has held, and I think the court is right, to say if you're going to do that, the relevant facts have to be found by a jury. It's not fair to put you in jail for 30 years instead of five because we think you had a pound of marijuana rather than an ounce when you never had a jury trial on that and wasn't proved beyond a reasonable doubt. It's an interesting coalition of the really conservative people on the court, Scalia and Thomas, who really believe in that right, and the most liberal really ought to believe in that right. The ones in the middle, the more pragmatic people, like O'Connor, Kennedy and Breyer, who say we like the guidelines, let's leave them alone, even though we know in principle they're unconstitutional, let's not apply the principle here. That just doesn't work.

>> Michael Grant:
I suppose demonstrating, once again, that the political spectrum not a line, it is a circle.

>> Paul Bender:
In a couple of years we'll see how this plays out.

>> Michael Grant:
Paul Bender, I appreciate your trying to sort out the mess. I'm sure we'll revisit this more later.

>> Paul Bender:
In a couple of years we'll see how it plays out.

>> Michael Grant:
All right. Paul Bender, thank you very much.


>> Merry Lucero:
Extraordinary images of Saturn's largest moon Titan have been beamed to earth with an imaging system developed at the University of Arizona. Two key U of A space imagery team members join us via satellite interview from Tucson to talk about this historic event this Wednesday at 7 p.m. on "HORIZON".

>> Michael Grant:
Also Wednesday, we'll look at what's being done to keep cities from using tax incentives to fight over retailers. Thursday, we'll look at how a local university is helping teach Afghan women business skills to help rebuild their war-torn economy. And Friday, the journalists' roundtable where a panel of Capitol reporters join me to talk about the week's top stories. That's the rest of the week on "HORIZON". Thank you very much for joining us on this Tuesday evening. I'm Michael Grant. Have a great one. Good night.

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