Category: Volume 52 (2020) Issue 3 (Fall)

Sonja B. Starr* Full Article. Introduction In the past several years, dozens of states have adopted or expanded laws providing for expungement of some adult criminal convictions.[1] Several states have recently passed groundbreaking “Clean Slate” legislation, which makes expungement automatic for those who meet the legal requirements.[2] Arizona, currently, is one of the holdouts to this trend—it not only has no automatic expungement law but indeed does not even allow expungement by petition. Although Arizona has a procedure to “set aside” a conviction,[3] this procedure does not seal the record and does not give the individual the right to refuse to disclose it.[4] In this Article, I draw on my recent empirical research to argue that Arizona should join its sister states in offering a second chance to people with…

Cassia Spohn. The early 1970s witnessed calls for reductions in state and federal prison populations and predictions that the use of incarceration would decline. For example, in 1973 the National Advisory Commission on Criminal Justice Standards and Goals, which concluded that “[t]he prison, the reformatory, and the jail have achieved only a shocking record of failure,” recommended that “no new institutions for adults should be built and existing institutions for juveniles should be closed.” These calls for reductions in the use of incarceration, however, fell on deaf ears. Rather than declining, America’s imprisonment rate, which had fluctuated around a mean of 110 individuals per 100,000 population for most of the twentieth century, increased every year from 1975 to 2007. In fact, the state and federal prison population increased from 300,000…

John F. Pfaff* Full Article. Introduction Few institutions in our deeply flawed and troubled criminal justice system draw as much immediate ire as private prisons. In his 2016 campaign for the Democratic presidential nomination, for example, Senator Bernie Sanders’s first stab at a criminal justice reform platform was to sponsor a (surely unconstitutional) bill banning private prisons in the state and federal systems alike.[1] The 2020 campaign for the Democratic presidential nomination similarly saw multiple candidates make pledges about private prisons, while none gave any real attention to the specifics of publicly run institutions.[2] This persistent focus on private prisons by politicians and the public alike is misguided for at least two reasons. First, it significantly overstates the role that privatization plays in the U.S. prison system.[3] All told, only…

Ben A. McJunkin* Full Article. Introduction To be homeless in Arizona is to be a criminal. City ordinances across the state prohibit broad swaths of conduct that make merely existing in public spaces difficult for those who lack housing. As a result, Arizonans experiencing homelessness commit countless crimes every day out of necessity, including loitering in parks,[1] resting at bus stops,[2] obstructing sidewalks,[3] pitching tents,[4] asking for money,[5] asking for work,[6] and sleeping just about anywhere.[7] At the state level, Arizona law prohibits loitering, littering, and public nuisances, the last of which is frequently invoked to justify sweeping and dismantling homeless encampments.[8] As prohibitions on the homeless experience proliferate, so too does Arizona’s homeless population. The state has experienced consistent year-over-year increases in the number of individuals experiencing homelessness, many…

Tamara Rice Lave* Full Article. Introduction In this Article, I consider ways in which Arizona’s laws regarding sex offenders should be reformed. I begin by focusing on laws that are designed to deal with the danger posed by convicted sex offenders: registration requirements, residence restrictions, and civil commitment. I contend that the state has overstated the risk posed by convicted sex offenders and that the laws meant to control them may do more harm than good. Next, I turn to police sexual violence. I argue that the state needs to go further in criminalizing this abhorrent conduct in order to promote the rule of law and protect vulnerable persons. I. Laws Designed To Control Convicted Sex Offenders I start this Part by considering the motive for laws controlling sex offenders:…

Kristin Henning* & Rebba Omer** Full Article. Introduction It had been four long days since the baby died and Lacresha Murray had last been allowed to see or talk to her grandparents, who adopted her when she was two.[1]Now she was sitting in a small room with an angry police officer looming over her, the gun at his waist directly at her eye level. She did not have much experience talking to police officers, but she had seen the police stop and search other Black people, and she had heard her grandparents tell her older sister that she should always do exactly what officers say. “Get home safe,” Lacresha remembered her grandparents telling her sister every time they talked about the police. Now, Lacresha did not know how she would…

Henry F. Fradella** & Christine S. Scott-Hayward*** Full Article. I. Introduction In its 2017 “State of Pretrial Justice in America” report, the Pretrial Justice Institute (“PJI”) praised Arizona’s pretrial justice reform efforts.[1] Arizona was one of nine states awarded a “B” grade (only one state—New Jersey—received an “A” grade).[2] Arizona was also named a “state to watch.”[3] Other commentators and news outlets have highlighted Arizona’s efforts and argue that it is one of the jurisdictions at the forefront of bail reform.[4] Although we agree that Arizona has taken some key steps toward creating a just and effective bail system,[5] more needs to be done before the state becomes a true leader in pretrial justice. Arizona remains a state with high numbers of unconvicted people in its jails.[6] Of the approximately…

Michele Deitch* Full Article. Introduction Over the last decade or so, Arizona’s prisons have become synonymous with mismanagement, lack of safety, unconstitutional health care, and abysmal conditions for people in custody. The problems that have marred the corrections agency’s reputation have been documented in countless news stories and show the agency’s seeming inability to address even the most fundamental flaws in its operations that lead to violence and deaths in custody.[1] A litany of scandals, including broken locks on cell doors, abuses of incarcerated people, riots, escapes, horrific care of pregnant women, and water shortages have also dominated news headlines.[2] Moreover, a federal class-action lawsuit about Arizona’s disastrous privatized prison health care delivery system has spanned many years; it led to a detailed settlement and also to a civil contempt…

Jenny E. Carroll* Full Article. Introduction Concepts of safety and prevention of danger pervade the criminal law canon.[1] Arizona is no exception.[2] The state’s criminal systems[3] pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.[4] The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous”[5] and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.[6] On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of…

Douglas A. Berman* and Alex Kreit** Full Article. Introduction In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable. The idea was viewed as so far outside the mainstream in 2009 that President Barack Obama’s first drug czar Gil Kerlikowske dismissively told a reporter that “[l]egalization [was] not in the President’s vocabulary.”[1] When California voters rejected the first major state-wide marijuana legalization ballot initiative in November 2010, the Obama administration celebrated the result.[2] Fast forward just six years, and voters in eight states had approved full adult-use legalization laws and Obama was telling Rolling Stone that he thought marijuana should be treated “as a public-health issue, the same way we do with cigarettes or alcohol.”[3] Today, marijuana legalization enjoys broad bipartisan support. Sixty-seven percent of Americans…