Arizona Governor Vetoes Prison Reform Bill for First Time Offenders

16August
2019

Arizona has one of the most controversial sentencing policies in the nation. First-time offenders can receive multiple sentences for “repetitive offenses” that occurred within minutes of each other.

The law led to a groundswell for change and across the aisle support for a bill. However, in June, Governor Doug Ducey vetoed Senate Bill 1334, a measure that would have reformed the sentencing for time offenders in Arizona under the repeat offender law.

Arizona Governor vetoes a prison refom bill
A prison reform bill was vetoed by Arizona Governor Doug Ducey

The bill attracted strong bipartisan support passing the Arizona House with 49 in favor and no opposition reported News Channel 13.

It was also received favorably in the Senate where it passed 27 in favor to three against.

Ducey said he vetoed the bill because it had  “unintended consequences.” He did not elaborate.

Joe Watson, who spent a decade in prison as a first-time offender, supported the reform. His case highlights the harshness of Arizona’s approach to first-time offenders.

Watson said he faced a potential 214 years in prison as a first-time offender. In Arizona, charges can be stacked for first-time offenders.

He received a sentence of 12 years because he argued his case before a judge instead of settling for a plea deal that would have left him spending at least a quarter of a century incarcerated.

Watson served 10 years even though nobody was harmed and no weapon was used in his offense. He claimed Arizona’s approach to first-time offenders means many people with mental health and drug addiction problems end up incarcerated. He said:

“Like me, the overwhelming majority of people incarcerated committed their offenses because of addiction,” he said. “That’s what we have to treat, behavioral issues, mental health issues.”

He said Arizona doesn’t have a program inside the prison walls to deal with those issues and so the numbers rise along with the price tag.

According to the American Civil Liberties Union of Arizona, the state has the fourth-highest incarceration rate in the country. Almost 42,000 people languish in our prisons.

At the Garcia Law Firm, our attorney Bernardo Garcia is committed to fighting for the rights of defendants who suffer from mental illnesses. We are well aware of the harsh treatment of first-time offenders and will do everything in our power to keep you out of prison. Please contact us today for a consultation.

Posted in Arizona Laws |

Factors that Influence Drug Offense Sentencing in Arizona

2August
2019

Drug offense sentencing in Arizona can be very complicated. Arizona is known for having harsh drug laws. However, two people who face a similar set of circumstances can receive different outcomes based on the evidence an attorney presents to the court. Many factors influence drug offense sentencing in Arizona.

Factors influencing drug sentencing in Arizona
What factor influence drug sentencing in Arizona?

These factors include the following.

  • Were the drugs intended for personal use or sale?
  • How much of the drug was involved?
  • Was the convicted person a repeat offender?
  • What type of drug was involved in the offense?

Sentencing factors in Arizona are contained in the federal and state statutes. The United States Sentencing Commission Guidelines give directions on drug sentencing under federal law. Arizona sentencing guidelines are contained under the Arizona Criminal Code Sentencing Provisions, and A.R.S. 13 Chapters 7, 8, and 9.

The statutory guidelines provide a sentencing range. These include minimum and maximum sentences. The guidelines for methamphetamine offenses, for example, in Arizona are tough. People convicted on a first offense of selling meth, the equipment, or the chemicals to make meth, face a minimum sentence of five years in prison, a presumptive sentence of 10 years, and a maximum sentence of 15 years.

Non-statutory factors may influence drug offense sentencing in Arizona within these ranges. They include the defendant’s character, history, and the circumstances surrounding the offense. The court will consider factors like violence or threats in a drug offense, a prior criminal record, and the nature of the harm to victims. Mental and physical health and substance abuse can be taken into consideration in drug sentencing in Arizona.

The quantity of drugs is particularly important in narcotics offenses in Arizona. The state has so-called “threshold amounts.”

The “threshold amount” is defined as the particular quantity of drugs over a certain amount which attracts a mandatory prison sentence. These sentences apply to both repeat offenders and first-time drug offenders; irrespective of whether they have a prior criminal record.

The threshold amounts are related to the amount of the drug and the degree of danger. Deadly drugs like heroin have much smaller threshold amounts than marijuana.

The threshold amounts relevant to drug sentencing in Arizona include the following:

  1. Heroin – 1 gram;
  2. Cocaine – 9 grams;
  3. Methamphetamine (Meth) – 9 grams;
  4. Amphetamine – 9 grams;
  5. Marijuana – 2 pounds;

At the Garcia Law Firm, our attorney is well aware of the link between mental illness and drug dependency. These factors are important in mitigation. Many people who are arrested for drug offenses are addicted to these substances. Please contact us today over drug crimes.

Posted in Arizona Laws, Drug Crimes | Tagged |

Decriminalization of Mental Health Bears Results in One Arizona City

25July
2019

The criminal justice system can be tough on people with mental illnesses. However, some jurisdictions are pursuing the decriminalization of mental health with positive results.

They include Yavapai County in Arizona where Sheriff Scott Mascher is so enthusiastic about his department’s Reach Out program that he wants to tell the world about it.

Decriminalization of mental health offenses proves positive in Yavapai County

He told PoliceOne, the program is making inroads in the problem of people with mental health issues and substance abuse in the criminal justice system.

About five years ago, Mascher was working on a voter issue to extend a jail sales tax. He kept hearing about people with mental illness and substance abuse problems who got caught up in the criminal justice system. Family members would call for help over a mental health crisis and the mentally ill person would end up in the justice system, usually for a minor offense like trespassing or disorderly conduct.

He told PoliceOne, every year more than 11 million people are processed by the prison system. Many of them are low-level, misdemeanors involving no violence. However, the offenses cost local governments about $22 billion annually. The article noted 64 percent of these inmates suffer from mental illness and 68 percent have a substance abuse disorder.

Mascher said the recidivism rate for inmates in Yavapai County is particularly high, rising to 80 percent. People who suffer from mental illnesses are locked up 4 to 8 times longer than people without mental illnesses who are arrested on the same charges. 

Seven times more people who suffer mental health problems end up in jails or prisons than at treatment facilities that can help them. The authorities in Yavapai tackled this problem. They started meeting with their local judiciary, county attorney, schools, mental health providers, legislators, and concerned citizens. They set up a local mental health coalition which proved to be a template for change.

At the Garcia Law Firm, attorney Bernardo Garcia is alarmed about how people with mental illnesses get trapped in jail and prison. We do everything possible to keep your mentally ill family member out of incarceration. Call us at (602) 340-1999.

Posted in Arizona Laws, Mental Health | Tagged |

Celebrating Our Client’s Success

21May
2019

One of the most satisfying experiences a defense attorney can have is seeing a client receive the care he needs and put his case behind him without spending time in prison. Today I celebrate the success of D.B., a client of mine who has recently successfully completed probation.

D.B. came to me with several charges including one class 3 felony. He had 3 prior felony convictions and an untreated, severe mental illness. He had been suffering a mental health crisis at the time, which caused him to commit the offense for which he was charged. D.B. was clearly in need of care, but his criminal history was working against him.

A person convicted of a felony who has two or more prior felony convictions will be sentenced under category three of A.R.S. § 13-703(J)—Arizona’s sentencing scheme for repeat offenders. A class 3 felony under category 3 carries a range of 7.5 to 25 years in prison, with a presumptive term of 11.25 years. It looked like J.B. was going to prison for a long time for things that happened while he was suffering a psychotic episode brought on by his untreated mental illness.

I have seen many cases like D.B.’s, and it is always a challenge to make the prosecution understand the difficulties that are unique to defendants with mental illness. I am glad to report that after some hard work, D.B. was extended a plea that allowed him to serve 3 years on probation rather than going to prison. As a term of his probation, D.B. was required to submit mental health evaluations and treatment. If he had gone to prison, his mental health would likely have worsened, and he would not be the contributing member of society he is today.

I am proud to stand with D.B. today as he completes his probation. Probation with mental health terms has not only kept D.B. out of prison, it has changed his life for the better. His mental health has improved by leaps and bounds and he never set foot in prison for this case. Although it takes a lawyer who is familiar with mental health cases to create such opportunities for people like D.B., it takes incredible effort from the defendant to turn things around and succeed like he did.

It has been my pleasure to help many others like D.B. obtain fair and positive legal results helping prosecutors and judges understand the unique challenges they face. If you or someone you know is facing criminal charges related to mental illness, please contact me today.

Posted in Arizona Laws, Mental Health, Mental Health Defenses |

Guilty Except Insane Plea

3May
2019

On January 29, 2017, an ambulance containing four people was pulling in to the Phoenix Baptist Hospital in Phoenix when L.S. pulled up alongside the ambulance and fired a handgun into the patient compartment and drove away. Luckily, no one was injured.

About 2 hours later police were called to a Circle K in Phoenix where L.S. had fired a gun in to the air while others in the vicinity looked on. Although L.S. resisted and fought police, they were able to disarm and detain L.S. without and serious injury to L.S., police, or others.

L.S.’s actions were the product of a prolonged psychotic episode caused by a serious undiagnosed and untreated mental illness. He was experiencing hallucinations and did not understand the dangerousness of his actions. L.S. was charged with a total of 14 felonies and could have spent as much as 70 years or more in prison.

Today, with the help of Bernardo Garcia, L.S. entered a plea of Guilty Except Insane in the Maricopa County Superior court. Guilty Except Insane pleas are notoriously difficult to litigate in Arizona and only rarely see completion. Today, rather than 70 years or more in the Arizona Department of Corrections, L.S. will spend no time in prison and instead spend some time at the Arizona State Hospital. There he will receive the highest quality and most comprehensive care, eventually culminating in his full reintegration to society.

Today’s victory is the result of countless hours of hard work and Mr. Garcia’s unique expertise in the area of criminal defense for those with mental illness. Mr. Garcia has unparalleled experience with Guilty Except Insane pleas in the State of Arizona, with successful cases in four Arizona counties (Maricopa, Pinal, Yavapai and Yuma).

Mental illness is often misunderstood in the criminal justice system, and it takes a unique set of skills to provide the best representation for our society’s most vulnerable people. Bernardo Garcia has over 25 years of experience as an attorney and unmatched skill as counsel for defendants who suffer from mental illnesses.

Posted in Arizona, Arizona Laws, Mental Health |

Mental Health and Reoffending Issues Are Dealt with in Arizona County Jail Program

29April
2019

Many jails contain house numbers of inmates who suffer from mental illnesses. Jail administrators in Yavapai County Sheriff’s Office were surprised to learn more than half of inmates in detention had been diagnosed with mental health problems.

The revelation in 2015 sparked action by the sheriff’s office.

The Verde Valley’s JournalAZ.com reported on how jail authorities set up a program to tackle reoffending and issues such as mental health problems and substance abuse.

Four years ago, the authorities found of 492 inmates in county detention that year, 52 percent were diagnosed with a psychosis. They were receiving prescribed medication for their conditions.  A massive 70 percent struggled with substance abuse. Many inmates were jailed for minor crimes, often not involving violence.

Reoffending tackled in new jail program

Arizona jail program tackles reoffending

YCSO Chief Deputy David Rhodes, who oversees jail operations, was blunt in his assessment. He told JournalAZ.com.

“It was a systemic failure and it still is. All over the state and all over the nation, mentally ill people spend longer times in jail than people without mental illness.”

They also find it more difficult to get out of jail.

He felt the jail was failing inmates and the community. Many of the defendants who entered the jail re-offended soon after they were released, returning to the county jail. Some even stepped up their offending.

A subtle change began that year. The county jail began screening people for potential mental health issues as soon as they entered the jail. They began a program to help inmates avoid re-offending after they leave. All too often people who are incarcerated are stranded with little support in the community. They end up homeless and habitually re-offend.

The anti-recidivism program was dubbed the Reach Out program. It has grown as it received grants from many sources, including the Northern Arizona Regional Behavioral Health Authority Institute, the Federal Bureau of Justice Administration, and the state of Arizona. In March 2018, the jail started recording more accurate statistics on inmates to evaluate the effectiveness of the program. Last July, it hired a social worker who was previously the Justice Liaison at Health Choice Integrated Care.

The program aims to support former inmates with mental illnesses when they return to the community.  The jail checks up on them with the service providers they partnered with after 30 days and then again after 90 days to see if they made progress. Other agencies get involved in the partnership.

Although the Yavapai County Sheriff’s Office program is in its infancy, its supporters are optimistic. They believe it’s the first of its kind in the country.

It’s not unusual for jails and prisons in Arizona to contain a large number of people who suffer from mental illnesses. Facilities often fail to provide adequate help.

In places like Maricopa County, mentally ill inmates are often held in solitary confinement.

Attorney Bernardo Garcia focuses his practice on people with mental illnesses who are charged with crimes. Call him today at (602) 340-1999.

Posted in Arizona Laws, Mental Health | Tagged |

Can a Mentally Ill Person be Charged with the Death Penalty?

13March
2019

The question of whether a mentally ill person can be charged with the death penalty has been debated at length by the U.S. Supreme Court.

It’s a difficult question because there is a lack of consensus about the definition of mental illness. The issue is also becoming moot in Arizona where a prisoner has not been executed for over four years, even though more than 100 people languish on Death Row.

The Death Penalty Information Center points out mental illness can be described in a variety of ways. The website notes the definition in the American Heritage Dictionary of mental illness as a range of conditions “characterized by impairment of an individual’s normal cognitive, emotional, or behavioral functioning, and caused by social, psychological, biochemical, genetic, or other factors, such as infection or head trauma.”

Can mentally ill people receive the death penalty

The death penalty and mental illness

The U.S. Supreme Court has considered the case of mentally ill defendants using the narrower definition of “intellectual disability” which impacts intellectual functioning such as problem-solving, learning, and judgment as well as adaptive functioning impacting independent living, and norms like communication. The condition was previously referred to as “mental retardation.”

In the 2002 case of Atkins v. Virginia, the U.S. Supreme Court concluded the execution of people with mental retardation is “cruel and unusual punishments” in violation of the Eighth Amendment.

The case established protection for people with intellectual disabilities. The justices cited disabilities in areas of reasoning, judgment, and impulse control.

The court said people with intellectual disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” The justices said people with an intellectual disability were not able to comprehend the death penalty.

The Atkins decision offered less protection than mental health advocates hoped. Prosecutors argued defendants were not intellectually disabled and their real issue was mental illness manifesting as a personality disorder.

States continued to execute people with mental illnesses. The Death Penalty Information Center noted Arizona executed Robert Moorman in 2012. His attorneys argued he was mentally disabled and was sexually abused into his adulthood. Prosecutors argued Moorman’s mental capacity when he committed murder was slightly above the legal threshold for mental impairment. Moorman killed and dismembered his adoptive mother.

Notwithstanding the rulings of the U.S. Supreme Court, mentally ill people are sentenced to death across the United States.

However, the use of the death penalty has stalled in Arizona, raising questions whether it will be used again.

According to a recent report on ABC15, the cost of executions and a shortage of drugs means it’s questionable whether the death penalty will be resumed in the state.

The news report noted a discussion on the death penalty last year. Assistant Federal Public Defender Dale Baich said the state of the death penalty in Arizona is “broken.”

The discussion was raised in an Arizona courtroom during the trial of a defendant accused of the sexual assault and killing of 8-year-old Isabella Grogan-Canella.

Although prosecutors initially wanted the death penalty during the trial of Justin James Rector, the request was withdrawn. They concluded there was no reasonable likelihood of Rector being executed give the “current state of affairs surrounding persons sentenced to death.” Rector received two mental health evaluations.

Like many other states, Arizona has lacked the drugs to perform execution by lethal injection.

The last time a death row prisoner was executed was in 2014 when Joseph Wood was put to death at the Florence State Prison.

Wood was injected with lethal injection drugs but took almost two hours to die. The execution shocked the nation.

By the time Wood finally succumbed after nearly two hours, he had been injected with 750mg each of hydromorphone and midazolam –15 times the amounts stipulated in Arizona’s execution protocol.

Baich said the lack of drugs was one reason why no executions have been carried out for four years. Another is the soaring cost of the death penalty.

In Arizona, county prosecutors hold the power over whether to seek the death penalty. Many are no longer using it.

Maricopa County Prosecutor Bill Montgomery said in 2018 the county had its lowest level of pending capital cases in two decades. Death penalty cases are down in also down in Pima County.

The ABC research found prosecutors are withdrawing notices to seek capital punishment because of the problems in the system as in the Rector case.

The pattern in Arizona reflects the rest of the nation. Death sentences peaked in the 1990s and have fallen steadily ever since. Some states like Maryland abolished capital punishment entirely. Other use it less frequently.  The Death Penalty Information Center noted historic lows in the use of the death penalty in many states in 2018.

At the Garcia Law Firm, we represent mentally ill defendants who have been charged with serious crimes like murders as well as lesser offenses. Please call us today if you or a family member has been charged with a crime at (602) 340-1999.

Posted in Arizona Laws, Mental Health Defenses | Tagged |

Why Arizona’s Insanity Defense is One of the Toughest to Prove in the Nation

7March
2019

Arizona’s insanity defense is one of the toughest to prove in the United States. The harshness of the defense provoked legal challenges in past years. Opponents claimed it failed to meet basic standards of fairness.

The obstacles associated with the defense were challenged in 2006 in the case of Clark v. Arizona. The case reached the U.S. Supreme Court.

Eric Clark shot a police officer dead during a traffic stop. Clark was a diagnosed paranoid schizophrenic. He believed aliens took over his town, according to expert witnesses.

Challenges in Arizona's insanity defense

Arizona’s insanity defense is tough to prove

Clark wanted to use this evidence to prove that he was insane. His attorneys claimed he could not form the criminal intent that prosecutors required to prove his guilt beyond reasonable doubt.

The trial judge ruled Clark could not use the expert testimony. He said the law did not permit the defendant to show he could not form the necessary criminal intent. The court found Clark failed to prove the insanity defense known as the Guilty Except Insane (GEI) defense in Arizona. Clark was convicted to 25 years to life in prison.

The U.S. Supreme Court considered the question of whether a defendant has a Fourteenth Amendment due process right, aside from his insanity plea, to present expert evidence to counter to prosecution’s evidence of Clark’s criminal intent.

The New York Times pointed out the nation’s highest court never ruled that the Constitution requires a state to permit an explicit insanity defense. The insanity defense was abolished by four states – Utah, Kansas, Idaho, and Montana.

However, these states still permitted a defendant to present evidence of his or her diminished mental capacity by using experts to challenge evidence of criminal intent.

Arizona bars the use of this evidence. Defendants who rely on insanity defenses can request a Guilty Except Insane verdict. However, the defendant must demonstrate insanity under a statutory rule that’s narrower than that of most states.

The insanity defense dates back to England in the 16th Century. It was codified in the 19th century with the development of the M’Naghten Rule.

The court in the case decided a “disease of the mind” caused the accused to fail to realize the difference between right and wrong. There are other legal tests such as Durham Rule that found a defendant who is “not guilty by reason of insanity” cannot be convicted of crimes committed as a result of certain mental conditions because willful intent is required. The rule is only used in New Hampshire.

It is difficult but not impossible to bring the Guilty Except Insane defense in Arizona. You should hire a Phoenix-area attorney who is experienced in these cases. Please call us today at (602) 340-1999.

 

Posted in Arizona Laws, Mental Health, Mental Health Defenses | Tagged |

How Often is the Insanity Defense Used?

14February
2019

The insanity defense has been used in some high profile cases. However, it is used sparingly in Arizona and elsewhere in the United States.

According to a PBS report, the insanity defense is used in just 1 percent of felony cases and it is successful in less than a quarter of the cases it is used in. The figures are derived from an eight-state study commissioned by the National Institute of Mental Health in 1991.

Although high-profile cases like those of serial killers Jeffrey Dahmer and John Wayne Gacy highlighted insanity defenses, in reality, they are seldom used. You should hire a lawyer who is specialized in these difficult cases involving mental health.

The insanity defense was first developed in 16th Century England. It was codified in the M’Naghten Rule in the 19th Century.

Use of the insanity defense in Arizona

When the insanity defense is used in Arizona

In that case, a court ruled a “disease of the mind” meant the defendant failed to understand what he did was wrong and was unable to distinguish the difference between right and wrong.

Most states use a variation of the rule. Arizona has a guilty except insane defense. The burden to prove insanity is on the defense.

Many states amended their insanity laws in 1982 when John Hinckley was acquitted of the attempted assassination of President Ronald Reagan on basis of insanity. Hinckley was found not guilty by reason of insanity and committed to St. Elizabeth’s Hospital in Washington. Hinckley was released in 2016. He must live within a 75-mile radius of Williamsburg, Virginia where his mother resides. He must maintain contact with his doctors twice a month while continuing ongoing group and individual therapy sessions, reported CNN.

In the aftermath of the Hinckley case, states started to require defense attorneys to show evidence that the defendant is insane, instead of the prosecutor. Four states – Kansas, Idaho, Montana, and Utah eliminated the insanity plea altogether.

Arizona has a strict interpretation of the insanity defense. The defendant is barred from presenting evidence of diminished mental capacity to negate the prosecution’s claims he acted with criminal intent.

In the case of Clark v. Arizona in 2006, the U.S. Supreme Court held in a 5-to-4 decision that Arizona was entitled to limit the use of evidence from experts about a defendant’s mental state to his insanity defense. A defendant is presumed to be sane until he proves otherwise. Justice Souter argued that allowing the accused to use insanity evidence to show that he could not form the necessary criminal intent would enable him to circumvent that presumption.

Arizona’s guilty except insane (GEI) defense is complicated and requires expert knowledge from a legal professional. Call Bernardo Garcia today if you or a family member has been arrested at (602) 340-1999.

Posted in Arizona Laws, Mental Health | Tagged |

Can You be Arrested for Homelessness? Phoenix Rethinks its Ban

11February
2019

Many homeless people end up in jails. Often they suffer from addictions and mental health issues. Their predicament is exacerbated by laws that criminalize homelessness. Although the authorities arrest homeless people in many parts of the state, some jurisdictions are rethinking their laws.

These include cities in the Phoenix area. Recently, AZCentral reported cities in the area are looking again at whether they can legally arrest someone for sleeping on the streets.

In the fall, the U.S. Court of Appeals for the 9th Circuit ruled the city of Boise, Idaho, did not have the right to cite people in violation of its “urban camping” law.

Arrested for homelessnes

Arrested for homelessness in Arizona

The judges said the law is unconstitutional and amounts to cruel and unusual punishment, AZCentral reported.

Many cities in Arizona have similar laws and are looking again at whether they can be enforced. The 9th Circuit rulings apply to western states including Arizona.

The report noted the city of Tempe has stopped enforcing its anti-homelessness law. Glendale has changed its law. The city of Surprise is also looking at changes. Phoenix is yet to amend its law.

However, the ruling has fundamental consequences for laws that target homeless people. The court concluded cities cannot cite homeless people if no alternative shelter is provided for them, Local governments cannot criminalize the homeless for sleeping outdoors on public property when they have no choice.

The AZCentral report points out shelter accommodation is limited in the Valley area. The main emergency shelter in Phoenix often reaches capacity and people are turned away. Over 1,000 people regularly sleep on the streets in Phoenix.

Arrested for Homelessness – What Are Your Rights?

The ACLU has published a guide to the rights of homeless people in Phoenix. The guide says homeless people should not resist arrest even if they believe it is unfair. They have a right to remain silent and ask to see a lawyer immediately. People arrested for homelessness have a right to make a local phone call that is not overheard by the police.

You do not commit a trespassing offense if you enter non-residential private property that lacks a fence of a “no trespassing” sign.

Homelessness has been outlawed in Phoenix since 2004 under an ordinance that attracted criticism due to its vagueness.

People who are arrested for being homeless should consult a Phoenix area criminal defense lawyer as soon as possible. Call us today at (602) 340-1999.

Posted in Arizona Laws | Tagged |