How One Election Might Strike a Blow to Mass Incarceration in Arizona

In Maricopa County, years of harsh charging and sentencing policies have sent state incarceration rates soaring. Now that legacy is in question in November’s prosecutor election.

In April, as Arizona advocates warned that prisons would become an incubator for the COVID-19 pandemic and demanded that public officials reduce the state’s incarcerated population during the crisis, Maricopa County Attorney Allister Adel wrote an opinion article stating that activists are “exploiting a public health emergency to forward a political agenda.” 

In the following months, the novel coronavirus spread in Arizona’s crowded prisons and jails, infecting hundreds of prisoners and staffers. This spread was fueled not just by state officials’ reluctance to decarcerate once the pandemic’s risks were known, but also by decades of “tough on crime” policies that have made Arizona’s incarceration rate one of the nation’s highest.

That carceral legacy, and the prospects of the “agenda” Adel denounced in April, are now at stake in November’s general election. Adel, a Republican, was appointed to the county attorney position last October when her predecessor resigned to take a seat on the state Supreme Court. She will face Democratic challenger Julie Gunnigle, a former prosecutor who is running on a pledge to lower Maricopa County’s incarceration rate by 25 percent.

Such a reduction could transform the criminal legal system in the county, which is home to Phoenix and nearly 4.5 million residents. The top prosecutor can set policies that influence what crimes are prosecuted and how, what charges prosecutors bring, what sort of sentences prosecutors seek, and who to keep in jail before trial.

Advocates who have scrutinized Gunnigle’s track record as a former Cook County, Illinois, prosecutor have called into question whether she would follow through on that promise, as The Appeal reported in August. Still, she has outlined policies that would mark a significant departure from Maricopa County’s decades under the leadership of Republican county attorneys who favored punitive policies and harsh sentences.

Since taking office in 2019, Adel has largely maintained the office’s status quo and pursued severe sentences. The Appeal reported last week, for instance, that her office is seeking to sentence a 61-year-old man, Brian Stepter, to eight years in prison for failing to return a rental car on time. 

But public opinion about the criminal legal system is shifting in Arizona, and so has the state’s political landscape. A 2019 poll commissioned by FWD.us showed voters strongly support measures like allowing imprisoned people to earn time off their sentences. Those measures have stalled in the state legislature, in part due to the opposition of past Maricopa County prosecutors. The county has long been a Republican stronghold, but it has shifted away from the GOP and it is one of the most hotly contested jurisdictions in the year’s presidential election.

“The stakes are incredibly high,” said Analise Ortiz, campaign strategist for the American Civil Liberties Union of Arizona’s Smart Justice campaign. “The Maricopa County Attorney’s Office is the third-largest prosecuting agency in the nation. It cannot be understated the sheer impact this office has on mass incarceration in Arizona. And because criminal justice advocates have had such trouble passing reform at the state legislature, the county attorney’s office is where the most change can happen.”

Besides deciding their next prosecutor, county voters will also settle a sheriff’s race that features former Sheriff Joe Arpaio’s longtime lieutenant.

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For years, the Maricopa County Attorney’s office has been led by prosecutors who have deployed harsh charging and sentencing policies. Charge stacking, or bringing multiple charges related to a single offense, has been commonplace. So has the use of “Hanna priors,” a practice unique to Arizona in which prosecutors are allowed to charge people as “repeat offenders” if their indictment includes multiple charges, even if they have never been convicted of anything in the past. Former County Attorney Andrew Thomas, who was in office from 2005 until 2010, also implemented a policy, known as “plead to the lead,” which required people to plead guilty to the most severe charges against them in order to accept a plea deal. 

Adel’s predecessor, Bill Montgomery, who led the office for almost a decade after Thomas’s departure, was also a staunch opponent of statewide reform proposals. He used his bully pulpit to sink legislative efforts to reduce sentences and implemented punitive policies as a prosecutor. He faces a federal civil rights lawsuit for allegedly turning the county’s marijuana diversion program into a money-making scheme that exploited poor people.

Though Adel has stated that she is “different from [her] predecessor,” her charging and sentencing decisions have often belied that claim. The eight years in prison that Stepter faces are over five felony charges, fitting the office’s pattern of overcharging. Adel has also pursued DUI charges—more than four years after the crime occurred—against a veteran who had since turned her life around. And in her past as a prosecutor in the vehicular crimes unit, Adel sent a young man to prison for 51 years for causing a car accident that injured four people. In June, she told The Appeal she stands by that sentence. 

Lorna Romero, a spokesperson for Adel’s campaign, told The Appeal: Political Report in an email that Adel has continued to use charge stacking and Hannah priors. She said that “prosecutorial discretion is key.” Romero said that Adel has ended her predecessors’ plead to the lead” policy, though stressing that the requirement may still be used on a case-by-case basis. In December, Adel said she was evaluating the policy; this is the first time her office has said it is no longer in place. 

Gunnigle has pointed to numerous policy changes she would pursue in Maricopa County to reduce incarceration. Her most striking proposal is to stop filing criminal charges on a range of low-level offenses. In July, she told The Appeal: Political Report that she would altogether decline to prosecute sex work, as well as crimes linked to poverty and homelessness such as trespasing and shoplifting. She has also said she would decline to prosecute cases involving personal possession of marijuana. (Adel’s spokesperson did not indicate categories of offenses the incumbent will decline to prosecute, but said that Adel favors a “treatment first” approach.)

Gunnigle has also promised to end the use of cash bail to the extent permitted by state law, and to lobby for legislative changes, like ending mandatory minimums.

Gunnigle told the Political Report that she would roll back the harsh charging rules that have been used by the county attorney’s office. She said she would stop prosecutors from charge stacking and using “Hannah priors.” She also opposes the “plead to the lead” policy.  

Gunnigle has faced criticism for her involvement in the heavy-handed prosecution of a woman who spent 18 months in jail on computer tampering charges, but she has maintained that the charges were warranted. She also said the case taught her that prosecutors need more options for dealing with mental health issues in the criminal justice system. 

“This election is a referendum on leadership,” Gunnigle said in an interview on “The Briefing,” The Appeal’s daily livestream show. “For the last 40 years, we have seen what a county attorney office that has been led by individuals who put themselves first instead of people they serve, what that looks like. Now more than ever, we need criminal justice reform, and we need it now.” 

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In the months leading up to the general election, Adel herself has announced a number of changes at the county attorney’s office, though critics have dismissed her efforts as insufficient.

“The critics are upset that she is a principled and effective leader who is actually getting things done,” Adel’s campaign spokesperson said in an email to the Political Report.

In August, Adel implemented a new policy allowing anyone who was arrested for simple marijuana possession to avoid prosecution if they obtain a medical marijuana card. Critics have pointed out that the policy only helps those who can afford a card, while poor people continue to face prosecution. 

Also over the summer, Adel published a dashboard with prosecution data on the county attorney’s website, stating that she did so to “support my vision for a more transparent process.” But, according to the ACLU of Arizona, who had sued the county attorney’s office to release the data, Adel fought to withhold the information and released it only after the ACLU won the lawsuit. And the data shared on the website is unclear, as it lumps all drug crimes into one category, which, the ACLU claims, obscures the fact that the office prosecutes simple drug possession more than any other crime.

In recent years, reform advocates in Arizona made a strong push for the state legislature to change sentencing statutes so that these sorts of reforms are not up to individual prosecutors, but Adel’s predecessor was instrumental in derailing those changes. Adel has not committed to supporting specific reforms, including proposed changes to Arizona’s “truth in sentencing” law, which requires imprisoned people to serve at least 85 percent of their sentences before they can be released. 

Statewide debates may already shift next year because a progressive candidate, Laura Conover, is set to become prosecutor in Pima County, the state’s second most populous jurisdiction. Conover, who won a contested Democratic primary in August and is now uncontested, ran on championing reforms at the legislature, unlike that county’s retiring incumbent.

Adel’s office also recently supported an enhanced sentencing statute that allowed prosecutors to seek harsher sentences for gang members. Earlier this month, the state Supreme Court unanimously found the statute unconstitutional and ruled that sentences against gang members who threaten people cannot be enhanced unless there is a connection between the crime and the defendant’s gang membership.

And Adel recently came under fire for making a dismissive joke about transgender people, and has since apologized.

Whether Adel remains in office or Gunnigle takes over, criminal justice reform advocates like those at the ACLU of Arizona are vowing to monitor what goes on at the county attorney’s office.

“Accountability is crucial, regardless of who is in these positions,” Ortiz said, explaining that it would be crucial to ensure that reforms apply across the board. “We will be looking at individual cases. … We are going to be doing a lot of data analysis. We also plan to have a court-watching presence. We want to make sure prosecutors don’t ask for cash bail, and charges aren’t being stacked.”