New 2018 Arizona Criminal Laws

The Arizona Legislature adjourned on May 3, 2018. Most of the new laws they passed take effect on August 3, 2018.  The legislature created a new civil traffic violation and two new vehicular crimes. They also amended a key definition and fixed a problem for prisoners. A.R.S. §28-694 was added to make it a civil traffic violation to drive the wrong way on a controlled access highway. A person found responsible is subject to a civil penalty of five hundred dollars and must attend and successfully complete approved traffic survival school educational sessions that are designed to improve the safety and habits of drivers. The legislature also amended the aggravated driving under the influence statute, A.R.S. §28-1383, to make driving the wrong way on a highway while driving under the influence a felony.   A.R.S. §28-675 was amended to make it a Class 3 felony for a person who caused a death by use of a vehicle if his or her privilege to drive was suspended due to driving under the influence or  failure to provide proof of financial responsibility. The sentence shall be consecutive to any other sentence imposed and restitution may be ordered. The term of imprisonment for this new felony is 2 to 8.75 years.   A.R.S. §13-1401 definition of “sexual contact” was amended by adding that it “does not include direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances.”   A.R.S. §13-717 was added to fix the problem of illusory parole. The law reads: “A.  Notwithstanding any other law, a person who was convicted of first degree murder and who was sentenced to life with the possibility of parole after serving a minimum number of calendar years pursuant to a plea agreement that contained a stipulation to parole eligibility is eligible for parole after serving the minimum number of calendar years that is specified in the sentence.  If granted parole, the person shall remain on parole for the remainder of the person’s life except that the person’s parole may be revoked pursuant to section 31-415. B. This section applies to a defendant who entered into a plea agreement that stipulated to parole eligibility and who was sentenced at any time from and after January 1, 1994 and on or before the effective date of this section.” If you are charged with one of the new crimes, you need an experienced defense attorney to fight for you.  Attorney Gary Rohlwing has been representing people for over 30 years. Please call him today for a free consultation.

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FOUR GUIDING PRINCIPLES OF THE EIGHTH AMENDMENT

The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishments.  Prisoners on death row argue that the death penalty violates the Eighth Amendment.  The United States Supreme Court has held that it violates the Eighth Amendment to execute prisoners who have intellectual disabilities or who committed their crimes when they were juveniles.  Prisoners also often argue that various prison punishments or conditions violate the Eighth Amendment.  Solitary confinement is a prison punishment that may one day be found to violate the Eighth Amendment. The Eighth Amendment does not give examples of cruel and unusual punishment nor does it discuss how to determine if a particular punishment is cruel and unusual.  In his concurring opinion, U.S. Supreme Court Justice Brennan discussed four guiding principles used to determine whether a punishment violates the 8th Amendment in Furman v. Georgia, 408 U.S. 238 (1972) https://supreme.justia.com/cases/federal/us/408/238/case.html: “The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. . . “  408 U.S. 238, 271. . . . More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings. The barbaric punishments condemned by history, 'punishments which inflict torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like,' are, of course, 'attended with acute pain and suffering.' O'Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting). When we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.  408 U.S. 238, 272-273. . . . In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause—that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words 'cruel and unusual punishments' imply condemnation of the arbitrary infliction of severe punishments. . . 408 U.S. 238, 274. . . .   A third principle inherent in the Clause is that a severe punishment must not be unacceptable to contemporary society. Rejection by society, of course, is a strong indication that a severe punishment does not comport with human dignity. In applying this principle, however, we must make certain that the judicial determination is as objective as possible.  408 U.S. 238, 277. . . . The final principle inherent in the Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, cf. Robinson v. California, supra, at 666, 82 S.Ct., at 1420; id., at 677, 82 S.Ct., at 1426 (Douglas, J., concurring); Trop v. Dulles, supra, 356 U.S., at 114, 78 S.Ct., at 605 (Brennan, J., concurring), the punishment inflicted is unnecessary and therefore excessive. . . 408 U.S. 238, 279. The State sometimes is so zealous in prosecuting people that it seems like they have violated the Eighth Amendment.  While it’s doubtful that the State has actually violated the Eighth Amendment, you need an experienced defense attorney to fight for you.  Attorney Gary Rohlwing has over three decades of experience.  Call him today for a free consultation.

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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.

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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.

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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.

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