The Tempe Police Department even has an operations order instructing cops to confiscate underage drinkers' IDs and cite them with one of several misdemeanors before releasing them, if they meet certain criteria.
Such misdemeanors are processed by city courts and county justice courts, but Tempe PD spokesman Michael Pooley explains that an officer could charge an underage college student with a felony forgery charge, which then would be handled by the County Attorney's Office and adjudicated in Superior Court.
Courtesy of Juan Camacho
Luz Ruiz Rascon and her husband, Juan Camacho, who has had to be both father and mother to their two children during Rascon's six-month incarceration.
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"A lot of these kids, we don't want to jam 'em up with a felony," Pooley says of the practice.
Montgomery admits that such cases could be prosecuted as class-four felonies, just as is an undocumented alien using a false ID or Social Security number for work.
So why doesn't he do this?
"That's got to be submitted [to the County Attorney's Office by law enforcement]," he says. "I don't do the investigation . . . I can't tell [the police] whom to arrest."
But, hypothetically, could Montgomery ask a city attorney to send such misdemeanors to the MCAO for possible prosecution as felonies?
"I can't do that," Montgomery demurs. "It's not an appropriate role for a prosecutor. You say I've got all of that power? I decline to use it improperly."
Veteran criminal defense attorney Antonio Bustamante, who handles Prop 100 cases, has a blunt reply for Montgomery's assertion.
"For him to say he has no control over it is nonsense," Bustamante says. "He and his top people control all of that."
In fact, deputy county attorneys represent the state in county justice courts. And Montgomery's attorneys have ready access to a county grand jury, which could charge underage drinkers using fake driver's licenses with felonies — if Montgomery wanted it that way.
Cobb claimed that though this "technically" may be correct, most cases of underage imbibers are handled by city courts, not justice courts. And, anyway, the likelihood of convicting such a defendant on felony forgery instead of a misdemeanor "is extremely low to non-existent."
Despite Montgomery's rationalizations, the way his office prosecutes Prop 100 cases conflicts with his embrace of the so-called SANE immigration program, developed over the past two years by local advocacy groups such as the Real Arizona Coalition.
The SANE proposal calls for securing the border, "accounting" for the undocumented in the United States, achieving "necessary bureaucratic reform," and engaging "all levels of government."
Conservative by the standards of pro-immigration advocates, the plan proposes that "those without lawful authority" be allowed to "come forward and gain legal status," though the initiative lacks consensus on how those who qualify for that status might become citizens.
All the same, Montgomery's support for the program, inaccurately referred to as "the Montgomery plan" by some, is an attempted shift on the issue by a politician who campaigned for office in 2010 as a pro-SB 1070 nativist.
Montgomery ran in the GOP primary against then-acting County Attorney Rick Romley, appointed by the Board of Supervisors to replace immigration hardliner Andrew Thomas after Thomas left to pursue the Republican nomination for Arizona Attorney General, a bid he lost to current Attorney General Tom Horne.
Romley had bucked the Arizona GOP's immigration stance, publicly advising Governor Jan Brewer to veto SB 1070 and suspending Thomas' controversial practice of prosecuting migrants — not just the coyotes who transport them into the United States — under Arizona's human-smuggling statute.
Montgomery promised to reverse Romley's move, stumping at nativist rallies in Phoenix and, infamously, at the border on the ranch of anti-Semite Glenn Spencer, leader of the hate group American Border Patrol.
There, along with staunch anti-immigrationists Pearce, Arpaio, and then-U.S. Senate candidate J.D. Hayworth, Montgomery led the crowd in a fist-pumping chant of "U.S.A., U.S.A.!"
Asked whether he knew at the time that Spencer had once played host to militia-woman Shawna Forde, arrested by the FBI outside Spencer's ranch for the 2009 home-invasion murders of 9-year-old Brisenia Flores and her father, Raul, Montgomery claims that he did not.
"I have not been back since," Montgomery offers, with a chagrined look on his face.
His pandering to the far right worked. With the help of Arpaio, who endorsed Montgomery and dumped more than $500,000 into TV ads and mailers painting Romley as pro-amnesty, Montgomery triumphed, besting Romley in the primary by 12 percentage points.
He later coasted through the general election, as Democrats did not bother to field a candidate that year.
A shrewd operator, Montgomery is personable and open to the media, regularly holding bi-monthly press conferences, where reporters can ask him anything they want.
But the West Point graduate and Gulf War veteran has a talent for channeling Machiavelli — and for adopting stances that are politically expedient.
Before Thomas left office in 2010, then-Deputy County Attorney Montgomery had a surreptitiously recorded conversation with former Supervisor Don Stapley in which he called Thomas' pal, Arpaio, borderline senile.
Ironically, in the same conversation, Montgomery expressed concern that Thomas was alienating Hispanics from the Republican Party with his anti-immigrant rhetoric.
Once elected, Montgomery began to pivot slightly, perhaps knowing that to win in a future statewide general election, he might have to moderate his public anti-immigrant tone so popular with the Republican base in Maricopa County.
