Wednesday, November 14, 2018

Hidalgo v. Arizona: Challenging Arizona’s Death Penalty Schem

The Arizona Revised Statutes state that first degree murder and any murder committed during the commission of 22 different felonies are eligible for the death penalty.  A.R.S. § 13-751 sets out fourteen aggravating circumstances for a jury to consider. If a jury finds at least one of the aggravating circumstances and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency, it shall impose the death penalty.  The Arizona Legislature established the aggravating circumstances in order to comply with the Eighth Amendment as interpreted by the United States Supreme Court in Lowenfield v. Phelps, 484 U.S. 231 (1988). Abel Hidalgo killed two people in Maricopa County.  He pled guilty but a jury decided whether he should receive the death penalty.  The jury found four aggravating factors and sentenced him to death. The Arizona Supreme Court affirmed his death sentence.  These facts and the arguments below are from his Petition for a Writ of Certiorari to the United States Supreme Court filed on August 14, 2017 which is found at http://www.scotusblog.com/wp-content/uploads/2017/08/17-251-petition.pdf Hidalgo argued that A.R.S. § 13-751 violated the Eighth Amendment because it didn’t narrow the class of persons eligible for the death penalty, arbitrarily enabled racial disparities, and relied on county resources (or lack thereof) instead of characteristics of the offense: “. . . Petitioner in this case set out evidence demonstrating that the aggravating circumstances serve no narrowing function at all because “virtually every first degree murder case [in Arizona] presents facts that could support at least one [of the legislature’s] aggravating circumstance[s].”  Pet. App. 11a. The Arizona Supreme Court did not dispute the accuracy of this claim; it approved the trial court’s decision to “deny[] an evidentiary hearing and instead [to] assume [] the truth of Hidalgo’s factual assertions.” Id. at 4a-7a.  But it held that Arizona’s capital sentencing scheme is nonetheless consistent with the Eighth Amendment.  That holding is plainly incompatible with this Court’s insistence that a statutory scheme must limit the class of death-eligible defendants.  See, e.g., Zant, 462 U.S. at 878.  (p.p. 12-13). “First, the arbitrariness of Arizona’s scheme enables troubling racial disparities.  Arizona follows the national trend in that “individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty.”  Glossip v. Gross, 135 S. Ct. 2726, 2760 (2015) (Breyer, J., dissenting).  One study published in 1997 demonstrated that “white-victim homicides in Arizona are much more likely to result in death sentences than minority-victim homicides.”  Ernie Thomson, Discrimination and the Death Penalty in Arizona, 22 Crim. Just. Rev. 65, 73 (1997).  “Minorities accused of killing whites are more than three times as likely to be sentenced to death as minorities accused of killing other minorities. (6.7% vs. 2.0%).”  Id.  And a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a whit man accused of killing a Hispanic victim.  See Id. These problems have persisted since that study was published.  In Maricopa County—where Hidalgo was tried and convicted—18% of the defendants sentenced to death were black, even though black people comprise just 6% of the population.  Fair Punishment Project, Too Broken to Fix: Part I: An In-Depth Look at America’s Outlier Death Penalty Counties 12 (2016) (hereinafter “FPP Report”).  In all, 57% of the defendants sentenced to death between 2010 and 2015 were people of color.  Id. at 11. In short, the failure of Arizona to narrow the class of offenders eligible for the death penalty has allowed for bias in its imposition. Second Arizona’s death penalty turns on accidents of geography and county resources, rather than the characteristics of the offense.  Hidalgo adduced evidence that, because of financial limitations, several counties were unable to pursue the death penalty even in cases with facts far more heinous than in his own.  Pet. App. 14a-15a, 34a. Maricopa County (where Hidalgo was tried) is on the other end of the spectrum: it imposed the death penalty at a rate 2.3 times higher than the rest of Arizona between 2010 and 2015.  FPP Report at 8. That was driven in part by a particularly zealous County Attorney, who was disbarred in 2012 because he had “outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.”  In re Thomas, No. PDJ-2011-9002 at 8.  The happenstance of geography is no way to “rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.”  Spaziano, 468 U.S. at 460.”  (p.p. 19-21). Hidalgo’s Petition is currently pending in the United States Supreme Court. A.R.S. § 13-751 isn’t the only statute that lists aggravating circumstances.  A.R.S. § 13-701(D) lists 26 aggravating circumstances that can be used to impose a higher sentence on a person convicted of a felony.  The aggravating circumstances are similar to those found in A.R.S. § 13-751. If the Supreme Court decides to hear Hidalgo, it could potentially decide that all or part of these statutes are unconstitutional. If you are charged with a felony, the prosecutor will probably argue that one or more of the aggravating circumstances found in A.R.S. § 13-701(D) apply.  You need an experienced defense attorney to fight for you. Attorney Gary Rohlwing has over three decades experience. Call him today for a free initial consultation.

The following blog post Hidalgo v. Arizona: Challenging Arizona’s Death Penalty Schem is courtesy of http://www.criminal-duiattorney.com/blog/

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from http://www.criminal-duiattorney.com/blog/criminal/hidalgo-v-arizona-challenging-arizonas-death-penalty-schem/

Monday, November 5, 2018

Arizona Town Hall: Why Do People Return to Prison?

Arizona has turned its attention to re-entry and recidivism of former prisoners.  One organization that is studying the issue is Arizona Town Hall. The following is taken from “Re-Entry and Recidivism” by Kevin Wright, PhD, Criminal Justice in Arizona 2018, Arizona Town Hall http://www.aztownhall.org/resources/Documents/111%20Criminal%20Justice%20in%20Arizona%20Background%20Report%20web.pdf Why do people return to prison?  Traditional explanations such as “crime as a choice” and “crime is all they know” don’t really get us that far.  In the summer of 2017, researchers from Arizona State University worked with incarcerated men to develop and implement a study that would ask them why they were in prison.  They completed 409 interviews in two months at the medium-security East Unit of the Arizona State Prison Complex at Florence. The report was shared with the Governor’s Office. Early in the interview, the incarcerated men were asked:  Why do you think most people come back to prison. Several themes emerged:

  • 44% said a lack of resources or programming contributed to recidivism.  One respondent stated, “Because they are not adequately prepared for reentry into society, because they have not made successful and dedicated transformation from their old lifestyle to one that would keep them out of prison.”
  • 27% said drug and alcohol use.  As a respondent remarked, “A lot of felons have serious drug addiction problems. . . When addicts get out, there aren’t any affordable treatment options.”
  • The third most common theme was an inability to change thinking and behavior or resorting to comfort.  This was best captured by the respondent who said: “Lack of education, skills, and a desire to succeed. They stay in here for a long time, get complacent and [there isn’t] any real type of job training to teach them how to be successful. So, they revert back to crime (what they know) because they’re unprepared for society. … Prison isn’t much of a deterrent anymore when someone isn’t taught how to live.”
  • Other themes that emerged included lack of a support system/mentor (16 percent), lack of education (15 percent), money issues (14 percent), stigma (14 percent), and peers, neighborhood or family environment (12 percent).
62% of the 409 men interviewed were recidivists.  Compared to first time prisoners, they were more likely to believe they had a substance abuse problem (52% to 35%) and more likely to not know where they would live upon release (31% to 17%).  They were statistically significantly more likely to report needing assistance with obtaining identification, transportation, housing, childcare, family and friend support, meals, employment, mentorship, substance abuse, healthcare and religious services. If you are a former prisoner and facing new charges, you need an experienced defense attorney to represent you.  Attorney Gary Rohlwing has over three decades of experience representing former prisoners facing new charges. Please call him today for a free consultation.

The following post Arizona Town Hall: Why Do People Return to Prison? is republished from www.criminal-duiattorney.com/

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from http://www.criminal-duiattorney.com/blog/law-offices-gary-rohlwing/arizona-town-hall-why-do-people-return-to-prison/

Saturday, November 3, 2018

Arizona Town Hall: Sentencing

Arizona is a law and order state with some of the harshest sentencing laws in the country.  Several criminal justice groups from the left and the right have taken notice. One of these groups is Arizona Town Hall.  The following is taken from “Sentencing and Incarceration” by Cassia Spohn, PhD, Criminal Justice in Arizona 2018, Arizona Town Hall http://www.aztownhall.org/resources/Documents/111%20Criminal%20Justice%20in%20Arizona%20Background%20Report%20web.pdf   In Arizona, judges use the Arizona sentencing guidelines which are based on two factors: whether the offense is a dangerous or non-dangerous felony and whether the defendant is a first time offender or a repeat offender. Dangerous felony charges are serious, violent or aggravated offenses such as murder, aggravated assault, sexual assault, dangerous crimes against children, and armed robbery.  There are separate sentencing tables for first time offenders, offenders with one or two historical priors and offenders with prior convictions for one or more dangerous offenses. Each sentencing table has a minimum, presumptive, and maximum sentence. For repeat dangerous offenders, the sentencing table has a minimum, maximum, and increased maximum sentence. For example, a first time offender convicted of a class 2 felony dangerous offense could face a minimum sentence of seven years, a presumptive sentence of 10.5 years, or a maximum sentence of 21 years.  However, an offender convicted of a class 2 felony dangerous offense who had previously been convicted of two or more class 2 dangerous offenses would be facing a minimum sentence of 21 years, a presumptive sentence of 28 years, or a maximum sentence of 35 years. Offenders convicted of non-dangerous felonies are somewhat different. Although these offenses are also categorized by the class of offense and by the offender’s criminal history, the sentencing tables provide a mitigated and aggravated sentence in addition to the minimum, presumptive and maximum sentences. As an example, a first time offender convicted of a non-dangerous class 2 felony would be facing a minimum sentence of four years, a presumptive sentence of five years, or a maximum sentence of 10 years.  If the judge finds at least two mitigating factors, like the defendant’s youth or the defendant played a minor role in the crime, the judge can reduce the sentence below the minimum sentence. Similarly, if there are at least two aggravating factors, such as the defendant had an accomplice or the crime was committed in a heinous, cruel or depraved manner, the judge can increase the sentence above the recommended maximum sentence. Moreover, all first-time, non-dangerous felony offenders are eligible for probation. The author wrote: “Arizona has a “truth-in-sentencing” statute. Passed in 1993, the statute requires that offenders serve 85 percent of the sentence imposed by the judge before being eligible for discretionary release. According to The Sentencing Project, Arizona’s incarceration rate is the forth-highest in the United States. In 2016 it was 585 per 100,000 population, compared to a rate of 450 per 100,000 for the United States as a whole. There were 40,952 persons imprisoned in Arizona in 2015, including 1,685 (3.9 percent of the prison population) who were serving life sentences and 504 (1.2 percent of the prison population) who were serving life sentences with no possibility of parole.” Arizona’s harsh sentencing laws mean that it’s very important for a person charged with a felony or felonies hire an experienced defense attorney to represent them.  Attorney Gary Rohlwing has over thirty years of experience representing people charged with felonies. Please call him today for a free initial consultation.

Arizona Town Hall: Sentencing is available on Our Blog

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Thursday, October 25, 2018

MCAO Crime Strategies Group

The Maricopa County Attorney’s Office has started a new group called the Crime Strategies Group.  The following information is from “Intelligence Focused Prosecution at the MCAO”, Maricopa County Attorney’s Office Justice for All September 2018 newsletter https://www.maricopacountyattorney.org/CivicSend/ViewMessage/Message?id=66664 The Crime Strategies Group has detectives, paralegals, prosecutors, and analysts who use technology and information sharing to identify crime trends and patterns.  Analysts work directly with law enforcement and the community to achieve successful results. After analyzing and categorizing material related to offenses and offenders, it is communicated to prosecutors so criminals and criminal activity can be stopped as soon as possible.  This system is called Intelligence Focused Prosecution (IFP). The Maricopa County Attorney’s Office is one of the few prosecutor offices in the nation to use it. The Crime Strategies Group has thirteen members including crime and intel analysts, a drug intel analyst, a paralegal, and an information systems analyst.  They use a robust group of tools and information to help them identify problems, analyze data, respond, and then assess and process the results. The IFP system is based on teams and group sharing of data and information with local law enforcement agencies.  Geographically assigned prosecutors familiarize themselves with the community drivers in their assigned area and work with police and the assigned crime analysts to best address the problems and offenders. The article describes how the IFP system works: “Analysts conduct research using criminal histories, social media, open sources and plain old gumshoe detective work which often means picking up the phone and calling a detective or analyst in the city next door. The information gleaned from these sources is confirmed and vetted, and when compiled into reports, helps provide prosecutors with the rest of the story. These partnerships often result in success stories between MCAO crime analysts, prosecutors and law enforcement, much like a recent case in the West Valley that you can read more about in the following article. Looking forward, IFP will continue to create assessments based on crime data and law enforcement information to identify areas of emphasis. Maricopa County Attorney Bill Montgomery knows the IFP model will allow the Office to reduce crime, enhance public safety and ensure protection to victims, “We will continue to evolve as a strategic focused organization. This IFP approach allows us to get the most effective and meaningful response for public safety. Our crime analysts are the best of the best and their expertise gives our prosecutors focused information to help make the most important decisions.” If you are charged with one or more felonies based on work done by the MCAO Crime Strategies Group, you need an experienced defense attorney.  Attorney Gary Rohlwing has over thirty years of experience. Call him today for a free consultation.

The following post MCAO Crime Strategies Group was originally seen on GaryRohlwingLawOffices

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from http://www.criminal-duiattorney.com/blog/law-offices-gary-rohlwing/mcao-crime-strategies-group/

Thursday, October 11, 2018

Arizona Town Hall Report Summary

The Arizona criminal justice system has received a lot of scrutiny recently from various groups. One of these groups is Arizona Town Hall. Arizona Town Hall recently completed a report on criminal justice in Arizona. The following is from Criminal Justice in Arizona, Summary of the Arizona Town Hall Report, March 2018 found at http://www.aztownhall.org/resources/Documents/111%20Criminal%20Justice%20In%20Arizona%20Key%20Facts%20web.pdf

The Arizona Town Hall summary brief gives some highlights from the full Arizona Town Hall report on criminal justice in Arizona.  

In Arizona, the number of crimes committed has declined for years even as the population has increased.  The crime rate has declined by over one-third since 2006. Unfortunately, incarceration rates have gone up during the same time period.  The vast majority of cases heard by the courts are minor traffic and civil cases. Total costs of the Arizona criminal justice system average approximately $525 for every man, woman, and child every year. There are approximately 15,000 sworn law enforcement officer in Arizona’s over 140 different police agencies.  Crime rates have decreased even though the number of officers per 1,000 residents in Phoenix has gone down since 2008.  The connection, if any, between these statistics is unclear. Poor people often cannot make bail while waiting for their trials.  Research shows that bail does little to ensure that defendants return for trial.  Reforms are being implemented to make the imposition of bail more equitable and to reduce people awaiting trial in jail. Prosecutors have wide discretion in deciding what charges to press against a defendant.  The decision not to charge may be the most powerful tool of the prosecutor. Although the initial charges filed may not be the ones that are eventually brought to trial, they influence key decisions on bail, plea bargains, and sentencing.  The development of charging guidelines could reduce seemingly arbitrary charges. “Determinate sentencing” such as Arizona’s rigid sentencing laws has resulted in a transfer of power from judges to prosecutors since the charges filed by the prosecutor now largely determine the sentence.  The increase in Arizona’s prison population is the result of changes in sentencing policy, not changes in crime. Arizona has the 4th highest incarceration rate in the country at 585 per 100,000 population. 18 percent of those released return to prison within six months.  Arizona’s three-year recidivism rate of 39 percent is lower than the national average of 50 percent.  Those returning to society after prison often lack the resources to establish themselves in the outside world.  Access to transportation, employment, and health care may help reduce recidivism. The Arizona criminal justice system raises the following questions:
  • Has the crime rate decreased due to the increase in imprisonments or is something more complex at work?
  • When does the use of force by police officers cross the line from legitimate authority to abuse of power?
  • Does imposing bail really ensure that defendants return for trial?
  • How much discretion should prosecutors exercise when filing chages?
  • Do mandatory sentencing rules reduce crime or are they unnecessarily inflexible?
Don’t face the Arizona criminal justice system alone.  Hire an experienced defense attorney. Attorney Gary Rohlwing has over 30 years experience defending people in the Arizona criminal justice system.  Please call him today for a free consultation.

The blog post Arizona Town Hall Report Summary Read more on: www.criminal-duiattorney.com/blog/

Law Offices of Gary L Rohlwing

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(623) 937-1692

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from http://www.criminal-duiattorney.com/blog/domestic-violence/arizona-town-hall-report-summary/

Sunday, September 23, 2018

Planet Defendant: Search and Seizure

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called search and seizure. Search and seizure comes from the Fourth Amendment to the U.S. Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
  The Arizona State Constitution has a similar provision found in Article 2, Sec. 8:
“8. Right to privacy Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Many constitutional challenges under search and seizure involve warrantless searches. Whether or not a warrantless search and seizure violates the Fourth Amendment and/or Article 2, Sec. 8 depends on the particular facts of a case. Some of the particular facts are:
  • A person’s status such as arrestee, probationer, homeowner, guest, driver, vehicle owner, or passenger;
  • A person’s initial actions that attracted law enforcement attention;
  • A person’s actions during the search and seizure such as consenting or seeming to consent to the search;
  • Law enforcement’s actions during the search and seizure;
  • Nature of what is being searched such as a home, hotel room, business, vehicle, backpack, luggage, or purse; and
  • Whether there is valid probable cause for the search.
  If a court determines that the particular facts of a case violate either the Fourth Amendment or Article 2, Sec. 8, it then decides whether the prosecution’s argument(s) that an exception applies so that the warrantless search and seizure is constitutional after all. Some exceptions are search incident to arrest, plain view doctrine, and good faith doctrine. In the 18th century, the Founding Fathers did not have computers, smartphones, gps, and the internet. The United States Supreme Court is continuously redefining what constitutes search and seizure when it comes to modern technology. Law enforcement must have a search warrant in order to search a person’s smartphone according to Riley v. California, 134 S.Ct. 2473 (2014). Law enforcement must also have a warrant to collect location data about cellphone company customers pursuant to Carpenter v. United States, 585 U.S. __ (2018). Finally, law enforcement must obtain a warrant to put a GPS tracking device on a vehicle to monitor the vehicle’s movements according to United States v. Jones, 132 S.Ct. 945 (2012). Search and seizure is a complex constitutional doctrine. If your case has a warrantless search and seizure, you need an experienced defense attorney to determine whether it was constitutional. Law Offices of Gary Rohlwing Criminal Lawyer has over thirty years experience. Call him today for a free consultation.  

The article Planet Defendant: Search and Seizure is republished from http://www.criminal-duiattorney.com/blog/

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from http://www.criminal-duiattorney.com/blog/criminal/planet-defendant-search-and-seizure/

Thursday, September 13, 2018

Planet Defendant: Due Process

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called due process of law. Due process of law comes from the Fifth Amendment to the U.S. Constitution which states that no person shall be deprived of life, liberty, or property without due process of law. The Fifth Amendment applies to Arizona criminal court proceedings because the Fourteenth Amendment states that no state shall deprive a person of life, liberty, or property without due process of law. Moreover, the Arizona State Constitution has a due process clause found in Article 2, Sec. 4. Therefore, due process of law is a federal and state right. Due process of law basically means that a person accused of a crime is treated fairly throughout the criminal proceedings against him. It includes procedural due process such as procedures concerning notice, presenting evidence on his own behalf, and challenging evidence against him. It also includes substantive due process such as fundamental fairness and a meaningful hearing. “Fundamental fairness” and “meaningful hearing” are incapable of precise definition; they are intended to be fuzzy and flexible since it is impossible to accurately define and know the myriad ways that a prosecutor or court could appear to give a person accused of a crime procedural due process yet act in such a way that is fundamentally unfair and renders the hearing or trial meaningless. A court not allowing a person accused of a crime enough time to present his defense would violate the fundamental fairness substantive due process of law. Moreover, a court deliberately ignoring exculpatory evidence presented at trial would violate the meaningful hearing substantive due process of law. Due process of law is generally the right to notice and a meaningful hearing or trial before a fair and impartial judge wherein the accused may present evidence and witnesses in his defense, cross-examine witnesses and challenge evidence against him, and present arguments and law in his defense. The specific procedures used to notify the accused and conduct the hearing or trial are based on the type of hearing or trial. Some examples are:

  • Felony indictment or complaint in superior court gives rise to right to a jury trial;
  • Misdemeanor complaint in city or justice court gives rise to right to a jury or nonjury trial depending on the nature of the charge;
  • Motion for Release on Bail gives rise to a bail release hearing;
  • Petition to revoke probation gives rise to a right to a probation revocation hearing.
  • Designation of an offense as a Class 6 felony instead of a misdemeanor gives rise to the right to receive actual notice and an opportunity to be heard;
  • Motion for an Examination of a Defendant’s Competence to Stand Trial gives rise to a hearing.
Interestingly, due process of law does not apply to every type of criminal procedure. A person on probation who files a petition to terminate probation does not have a due process right to a hearing. Nor does a person seeking or wishing to modify pretrial release conditions. Due process of law is a complex constitutional doctrine. If you are charged with a crime, you need an experienced defense attorney to make sure that your right to due process of law is not violated. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation.

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