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May 18, 2004

Host: Michael Grant
Topics:
· Prison Sentences
· Phoenix art museum exhibit A collection of photographs
shows the coming of age of Latin America.
In-Studio Guests:
· Rudy Gerber, former judge, State Court of Appeals;
· John Kaites, former prosecutor, former Chair of the Senate Judiciary Committee.

Michael Grant:
Tonight on "Horizon," a study of Arizona prison sentences makes the case for the elimination of mandatory minimums. A look at the findings and
debate about what conclusions can be drawn, plus, Latin America comes to life in an exhibit at the Phoenix art museum. We'll take a peek at the photographs highlighting the emergence of Latin America in the 20th century.

Good evening, I'm Michael Grant, welcome to Horizon. A study by an inmate advocacy group has some lawmakers calling for a state commission to examine Arizona prison sentencing laws. Arizona institute of mandatory minimum prison sentences in 1978. They were updated in 1980s to deal with an explosion in drug related crimes. Now, a report by family's against mandatory minimums finds that such sentences help cause prison overcrowding and they do not reduce crime. But as Paul Atkinson reports, prosecutors are finding fault with some of the report's findings.

Paul Atkinson:
Over the past year, a record number of convicted felons have arrived at the Department of Corrections intake facility in Phoenix, pushing the state's prison population to more than 31,000, some 4,500 more than capacity. It prompted lawmakers to meet in special session last fall to find ways to deal with overcrowding. Now, a new report from the Washington D.C. based organization, families against mandatory minimums or FAM, adds context to the problem.

Kevin Pranis:
Interestingly, for all of the people it locks up, Arizona has
the highest crime rate in the entire country and has had much less success in reducing its crime rate than other states in the region, which all suggests
that the policies of locking more and more people up under mandatory sentencing is not working. It's not achieving public safety. That's the primary concern.

Paul Atkinson:
Kevin Pranis is one of the studies authors. Using Federal Bureau of Justice statistics, the report shows the rate of incarceration in Arizona compared to other states. Take a look. In 2002, for every 100,000 residents, Arizona sent 513 people to prison. Slightly higher than Nevada and California and much higher than Utah, Colorado and New Mexico.

Kevin Pranis:
The only states with higher incarceration rates are all in the southern part of the United States, coming from sort of a culture of tough on crime and most of those states are now beginning to try to implement some reforms that will reduce their prison populations, so Arizona really stands alone in that respect.

Paul Atkinson:
These temporary tents at the Perryville prison complex west of Phoenix were put up last summer to help deal with the increase of female inmates. The report found Arizona sends 81 women to prison for every
100,000 residents, nudging out Nevada and again higher than other neighboring states.

Kevin Pranis:
There is no justification for this huge growth in the incarceration of women. I think it demonstrates how much the laws have failed that they are now the fastest growth is among the least dangerous offenders in the system.

Paul Atkinson:
The report points out that nonviolent offenders make up 55% of the overall prison population. Families against mandatory minimums found many were sent to prison not for new crimes, but for violating probation or
parole.

Kevin Pranis:
I think it's also important to point out that the overwhelming majority of the nonviolent offenders are substance abusers. In fact, well over half of severe alcohol and/or drug dependencies that are related to the drug and low-level property crimes they've committed and they are serving often very long
sentences.

Paul Atkinson:
The report sheds light on the overrepresentation of minorities sentenced to prison, especially for drunk driving. The authors contend drug courts, such as this one in Maricopa County, could be better utilized
instead of sending people to prison. Drug courts require people to
attend rehab or therapy for their addiction. FAM calls for an end to
mandatory minimum sentences which would give judges, not prosecutors, more sentencing discretion.

Kevin Pranis:
Anyone who had read the report would understand this isn't just about drugs or drug offenses. It's certainly not about decriminalization, it's about proportional sentencing, that the sentence should fit the crime, not whatever the law, you know, this sort of matrix that the law creates that says, you know, if you fit X, Y and Z criteria, you must have this sentence, regardless of your culpability, or what it is you actually did.

Barnett Lotstein:
Arizona has tough laws and the people of Arizona do not excuse criminal conduct, and our judges don't excuse criminal conduct and our legislature doesn't excuse criminal conduct and we as prosecutors done excuse criminal conduct. That's in fact what the proponents of this particular report want to do. They want to excuse criminal conduct and come up with all kinds of rationalizations why people commit crimes. But the bottom line is, if you commit a crime in Arizona, you're going to be prosecuted, and if appropriate, you are going to be incarcerated.

Paul Atkinson:
Barnett Lotstein calls the report and its authored biased
and says a proper evaluation cannot be done without looking at the origin of mandatory minimum sentences.

Barnett Lotstein:
One of the reasons that the legislature enacted mandatory
sentences was because the judges were inconsistent in their sentencing.
And really, is it fair if a defendant is charged with a crime, and he happens to appear before a tough judge, and gets a prison sentence, and the next
guy who committed the same crime appears before a lenient judge and gets a lenient subsequent sentence. That's not fair to the defendants. It's not fair to the public or victims and the legislature saw that unfairness and enacted for certain crimes, mandatory sentences so there would be consistency in sentencing.

Paul Atkinson:
Lotstein balks, at the notion that non-valid offenders with substance abuse problems don't really deserve to go to prison.

Barnett Lotstein:
What they are saying is, if they shouldn't go to jail for property crimes because they are drug addicts. If they shouldn't go to jail or be placed on probation because they can't complete their probationary obligations because of they're drug addicts, then the only other alternative is don't prosecute them, and that is basic decriminalization, and that's what their objective is. Legalization of drugs, decriminalization of drug crimes.

Paul Atkinson:
When it comes to the number of women and the percentage of minorities in prison, Lotstein says prosecutors can't make exceptions because of
gender, ethnicity or race.

Barnett Lotstein:
Look, at the county attorney's office, we are color blind and gender blind. We prosecute all cases. We don't make distinctions between race or ethnic origin or gender. So it's difficult for me to comment on that.

Paul Atkinson:
When it comes to prison sentencing, it's not difficult to see there is disagreement between prosecutors and families against mandatory
minimums. One of the report's recommendations is to establish a sentencing commission to do its own analysis of Arizona's sentencing system, a suggestion that has some support in the legislature.

Bill Konopinicki:
We do have a prison crisis in the State of Arizona, not just
because of the number of beds, but because of the way that we are incarcerating. Prosecutors and victims have some very legitimate concerns about how we handle these issues, and those that need to be dealt with, but when we get to the bottom line, we're incarcerating at a rapid and alarming rate. We're highest in the west, 10th overall in the nation.

Michael Grant:
Joining me now to talk about the report's findings are two attorneys, Rudy Gerber is a former judge who served on the State Court of Appeals. Also here is John Kaites, former prosecutor, former Chair of the Senate Judiciary Committee. Gentlemen, good to see both of you.

Both:
Good to be here, Michael.

Michael Grant:
Rudy, you were involved in the mandatory minimum rewrite -- well, rewrote other aspects, but the Criminal Code revision in 1978 that included a lot of these mandatory minimums. What were the goals that were seen for mandatory minimum sentences 25 years plus ago?

Rudy Gerber:
Well, they were at least two. One was to eliminate disparity in sentencing, the very disparity that Barnett Lotstein was just referring to, which is a legitimate concern. The other was the assumption that mandatory minimums would be a very effective deterrent to crime, and I think it was those
two considerations back in the mid-'70s that really prompted the interest in mandatory sentencing.

Michael Grant:
Was there a third concern by legislators that some judges were simply to soft on crime?

Rudy Gerber:
You would hear that, yes. I don't think that was as prominent as the first two, but yes, you would hear that complaint occasionally.

Michael Grant:
Okay, John, do you disagree with -- we'll get to what we do disagree on in just a second, but do you disagree that those were, perhaps, the primary thrusts of why we started going to mandatory minimum sentences in 1978?

John Kaites:
I think the public policy of the state for the last 15-20 years is to take the people who were the most violent repeat offenders in this state and put them in prison for as long as we can over their crime-committing years, so that we can focus our rehabilitative dollars on those individuals we have the greatest chance of saving and turning around and bringing into society
without victimizing citizens of our state. So I think the policy, overall,
has shown great benefit, but there is a cost to a policy like that.

Michael Grant:
Sounds to me like you are arguing with issue number two, deterrence.
You are saying, well, I don't care if mandatory minimum sentences deter, I'll lock them up until they get old, they are too tired to commit crime?

John Kaites:
Well, there is 100% deterrence of the criminal that commits the crime if they are in prison. They cannot revictimize their victims. And in Arizona, you will not find a single case that I can think of, and we studied back in 1993, every single criminal case as part of the rewrite of the
Criminal Code that I was responsible for sponsoring with the legislators.
In that study, we came to the conclusion that in Arizona, in Arizona prisons, there are only two types of criminals. There are violent criminals, and
there are repeat offenders, people that commit crime over and over again, so that there's no alternative but to incarcerate them to keep them from robbing your house, burglarizing your store, committing other crimes that are either property crimes or even violent crimes.

Michael Grant:
Rudy, it sounds to me like John is really arguing with the basic premise of the report, which is - really doesn't matter if we are
deterring or not, it really doesn't matter if we are locking up a lot move people than western states. What we are doing is putting bad guys behind bars so they can't hurt you.

Rudy Gerber:
Well, we're putting bad guys behind bars so they can't hurt us, well beyond their crime prone years. We know that the age group that is most responsible for crime is the age group from roughly age 15 to about 24. At that point, crime begins to take a downward turn. By the time you have people 35 or 40 years old in prison, the likelihood of that age cohort committing crime again is much less than for the age cohort in their late teens and early 20s.

Michael Grant:
Did the study look at the demographics?

Rudy Gerber:
There is very little in the study about demographics. But the point is..

Michael Grant:
All we know is that the gross number is very large, the comparative stats that we saw in the taped piece, Arizona versus New Mexico, Nevada, Colorado. We know that those incarceration rates are high, but we don't
necessarily know if they are targeted at 18, 22, 25-year-olds?

Rudy Gerber:
Well, we know from the reports by the Department of Corrections that Arizona prisons have a very large number of aging inmates, people over the age of 50, in prison, and the main culprit that's responsible for that is mandatory sentences, that require them to stay in prison for a very long time without exception, after they have passed the age when they are most likely to repeat crime. So, what you have, then, is a system of diminishing deterrence and increasing cost as the inmates get older. It's not a cost-effective system for that group. I don't dispute what John says in the least about the need to put violent repeat offenders in prison. The real concern that I have, which I had long before I read this report is, is this a cost effective way to address the crime problem?

John Kaites:
I think when you drill down to the core of those people who are in prison because of mandatory sentences into their later years, it's because they
did commit a violent crime that required a lifetime prison sentence or a very long prison sentence, or they are in the category of sex offenders, which
is one of the rare categories that age, the older you get, doesn't seem to slow down the recidivism rate as it relates to sex offenders. One thing I will tell you, though, about this report, when you look at that number, that per capita number that seems to be very persuasive because we have more per capita than anybody else, we have a different system as it relates to DUI offenders. We're one of the few states that when you commit a DUI, and you go out and commit another DUI while you are on probation for a DUI, you automatically go to prison for four months. Most states deal with that issue in the county jail, and in Arizona, for whatever reason, when we start the public policy of the mandatory 4 month sentence it's not county time it's prison time. They have 3 or 4, 000 more that are DUI offenders that would typically be in county courts going to county probation.

Michael Grant:
Is it rational? Should we do it that way?

John Kaites :
It's a matter of dollars and cents. If you took those 3,000
prisoners, an you dump them on the Maricopa County system, which now has roughly 12, 000 inmates right now, who are serving less than a period of time, it could potentially bankrupt the county. Once you started down that public policy decision, it's hard to reverse that because of the cost to the counties.

Michael Grant:
What about Lotstein's charge that the backers of this study really
their their objective, is the decriminalization of drugs?

Rudy Gerber:

Well, I haven't seen that at all, Mike, in the report at all. First of all, I had nothing to do with the compilation of the report. I'm here because I read the report. They asked me what I thought of it, and I said this squares with my 22 years experience on the bench and 4 years experience as a prosecutor before that. So I'm not here to bless the report or to tell you all of the mechanics of it, but I have read it, more than once. There's nothing in it that supports the idea of drug decriminalization. That is not an agenda or a conclusion that flows from this report.

Michael Grant:
To the extent, though, that the report focuses on nonviolent offenders, isn't that oftentimes, though, a code phrase for drug offense related crimes?

Rudy Gerber:
I would say that's true in other reports, but what you have here, Mike, is a reference to the half of the population in prison that is there for
nonviolent crimes, and the suggestion, very strong in the report, is these people should be in some other kind of liberty depriving facility, like
probation, like house arrest, like short periods of time in the county jail.
There is nothing in the report that I have read that advocates decriminalization of any crime, or a wholesale release of anybody from prison. It's really talking about cost effective strategies for fighting crime.

Michael Grant:
There is an awful lot of people, John, as you know, on the right side of the political spectrum who really do think we've got a failed drug policy, that we spend way too much time locking people up and prosecuting people on this, and we would be better off to go to other kinds of ways to address this problem.

John Kaites:
And I think those people's opinion are reflected in the
change in the law that happened in the late '90s where drug offenders are automatically, unless they are drug dealers, put on probation. If they violate their probation, they get a second chance at probation. It's not until they violate their probation a third or fourth or fifth time that ultimately the system says, look, we can't rehabilitate you with a carrot, so ultimately we
have to try the stick and give you some incarceration time. I think things like drug cart and other unique and innovative approaches that Arizona implemented and adopted in the early '90s are working and working rather effectively, but those things are funded at the county level and there is a disparity with funding at the state revenant and the county level. Those two call for short bursts of incarceration immediately upon a finding of a violation of your terms of incarceration.

Michael Grant:
Shock incarceration?

John Kaites:
It's not shock incarceration. It's immediate consequences. What we are finding when you arrest somebody and convict them from the time of the crime committed to the time that they go to prison and serve that time, is a
long period of time, 180 days or possibly more. Whereas this, they violate them right away, they send them to jail the next day after they committed their offense, and they spend a week in jail, and then they go back on probation to try to work on their rehabilitative programs. That works rather successfully, and I've got to tell you, those inmates that are eligible for it are getting the advantage of it. There are very few people in our system that are not there for good reason in our prison system in Arizona.

Michael Grant:
One of the problems, with that approach, judge, has been that the state, though, more often is much more interested in spending dollars on bricks and mortar than it is on spending the kind of administrative and other support time that you need to effectively administer and police that kind of program; correct?

Randy Gerber:
Well, if you look at costs, the costs related to prisons far outstrip the costs related to things like shock incarceration or straight probation. It costs the state about $120,000 per bed to build a new prison. It costs the state on the average about $21,000 per year to house an inmate in the Department of Corrections. You can put people on straight probation or intensive probation for about 1/7th that cost, and that includes the administrative costs. And the success rate, according to the Rand study, of this state and other states, the success rate of people on probation is 7 to 8 times greater than the success rate of the graduates from our Department of Corrections.

Michael Grant:
So why do we still have the bias towards bricks and mortar?

Randy Gerber:
I think we -

Michael Grant:
I've heard those statistics before, and -- but we keep building more prisons, and we keep throwing more people in there.

Randy Gerber:
I suspect that the reason is that we have a bias in favor of the simplest kind of solution to the crime problem that creates an aura of being tough on crime. And what this report says is, let's stop doing the toughness at the expense of being smart.

John Kaites:
And I would say that it's not about being tough, it's about taking those candidates who are most likely to benefit from probation and putting they will on probation. That's what leads to success. But I'll take -- I'll give you a case example. Somebody gets a knife held to their neck and they steal -- the criminal steals the car. That person most likely in a plea agreement would go to prison for the theft, rather than the aggravated assault. So in the report, it would be categorized as a nonviolent offender, when in reality -

Michael Grant
The underlying is more severe. John Kaites, I'm sorry, we're
out of time. John Kaites, thank you very much for joining us. Rudy Gerber, good to see you again.

Randy Gerber:
Good to see you, Mike.

Michael Grant:
An exhibit at the Phoenix art museum provides a glimpse of the maturation of Latin America in the 20th century. The collection of photographs
shows the coming of age of Latin America.

Larry Lemmons:
Walking into the gallery, the photos all appear to be uniform, sharing a common thing. All are black and white photos, neatly framed. Looking closer, however, you see the photos represent many different places and ideas.

Mary Statzer:
First of all, we're really pleased to have the opportunity
to show a wide range of photographs from Latin America, from such a good local collection. It spans 80 years. There are seven countries that are represented here, an it was a real challenge to choose only 38 that would fit in the gallery out of the 50 total that are in the collection.

Larry Lemmons:
One photo shows famous Mexican revolutionary leader Ameliano Zapata, while another, "absence," speaks to the disappearances of Guatemalans.

Mary Statzer:
And it was during the time when a lot of people would were disappearing in Latin America, and you could come home and all of a sudden, someone would be gone and days would go by, and you never know whether that person was dead or alive. So this very long piece has chairs hanging on the wall and photographs of missing people, and articles about them in the newspaper. And what he was basically saying is that they are absent from your home, and one of the ways you know they are absent is that their chair at the table is empty. I find that a very powerful piece.

Larry Lemmons:
Marianna Yampulski's reflects women's issues.

Mary Statzer:
One of the photographs deals mainly with women in a small village, whose husbands always leave because they can't earn a living and support their family. And I think she's showing the strength of these women who stay behind and raise their families alone and tend the fields and keep the family together while the husband's may come home only once a year. So I find that, you know, the showing of the strength of these women.

Larry Lemmons:
And although the issues and images displayed are all very different, there is something that connects them all.

Mary Statzer:
I think the thing about it is that it's very international.
All photography is international. Photographs are really interested in the same continued of things. They are interested in the politics, the myths, the culture, the values of that culture, and what's happening during that period of time.

Larry Lemmons:
Socialist and communist movements of the 21st sen tier influence Tina Modarte to snap the photo, woman with flag.

Mary Stazer:
Manuel Corales shot fors Castro and it is propaganda. Two of the photos I have, one in particular, was a celebration by the Cuban people of the takeover of the united food workers farm. And so Castro wanted to have a wonderful exciting photograph that he could use as propaganda for what he was interested in, in turning into a socialistic society.

Larry Lemmons:
Newer photos attest to more temporary photo techniques but
still carry strong political and social commentary. A few photos stand out, showing famous 20th century Mexican artist Frida Calo.

Mary Statzer:
There is a series of photographs of Frita Calo that
Calo herself liked very much. They are very personal. They are very introspective and for someone like Calo, who made it her career to paint her own image, in often very dramatic ways, these are quiet really personal and much more introspective, perhaps, than even her paintings.

Larry Lemmons:
Amy Lou Packard studied with -- and photographed the couple.

Mary Statzer:
And there is a very touching portrait of the two of them together, as well as one of Frita in her work clothes looking very relaxed and maybe in a moment between times in the studios. So those are also very nice to
have in the collection.

>> Michael Grant:
The exhibit is on display at the Phoenix art museum until July 5th.
For more information call 602-257-1222. That's 602-257-1222. This past weekend, more than 40 gay couples got married in our state, despite the fact that they legally cannot. Join us tomorrow when we take a look at the issue of gay marriage in Arizona. We'll hear from both sides on that debate. That's tomorrow on "Horizon." Thank you very much for joining us this evening, I'm Michael Grant. Have a great one. Good night.
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