If Prop 205 Passes, the Maricopa County Attorney's Budget Is Likely to Take a Hit

The Maricopa County Attorney's Office could see a substantial drop in revenue if Proposition 205 passes, owing to the sudden disappearance of thousands of marijuana-possession cases.

Prop 205, which Arizona voters will decide on November 8, would give adults 21 and older the freedom to possess personal amounts of marijuana and set up a limited retail-sales system.

County Attorney Bill Montgomery, who's facing a Democratic competitor in next week's election, is receiving criticism from pro-marijuana advocates for what appears to be a financial incentive for his intense campaigning against the ballot measure.

As the Arizona Republic reported  on October 27, the office has taken in nearly $15 million over the past 10 years for referring defendants to TASC, a privately run drug-treatment program. Montgomery traded barbs in the story with the J.P. Holyoak, chair of the campaign behind Prop 205: Holyoak called the cash-for-pot-bust system "absolutely corrupt" because it provides an incentive to keep prohibition in place, while Montgomery answered that the allegation was from a "desperate campaign coming down to a defeat."

Republic writer Megan Cassidy reported that the MCAO receives $650 from TASC for each marijuana case. The money is figured into the fees violators pay when they go through the program.

People caught with hard drugs pay even more, Cassidy reported, netting the MCAO $1,200 a pop for so-called dangerous-drug cases, and $1,500 for cases involving narcotics.

New Times reported in January that marijuana cases made up 77 percent of all referred TASC cases in 2015. At the time, TASC CEO Doug Kramer told the paper that if Prop 205 were to pass, TASC would need to seek out other court-ordered funding sources, in order to counter the loss of operating revenue.

MCAO spokeswoman Amanda Jacinto tells New Times the Republic article is inaccurate and that the newspaper has agreed to publish a rebuttal. (See update below.)

At any rate, available statistics indicate that marijuana legalization could reduce MCAO's revenue by even more than Cassidy reported — perhaps by $2.6 million or more per year.

First, some background: With the exception of medicinal users, possession of up to two pounds of marijuana in Arizona is a Class Six felony. Police in Maricopa County typically book suspects caught with marijuana into jail, costing taxpayers at least $1.3 million annually. Arizona Department of Public Safety records show that about 13,000 adults were arrested or cited for felony pot possession last year. DPS criminologists believe that in about 90 percent of marijuana cases, less than an ounce was seized, a DPS spokesman told New Times in June.

Under Prop 205, possession of less than one ounce of marijuana would be legal; between one and 2.5 ounces would be a civil offense with a $300 fine.

As things now stand, the MCAO typically offers first- or second-time marijuana offenders a choice: a TASC drug-treatment program or a felony prosecution. The charge is erased when the defendant successfully completes the program.

Jacinto tells New Times that the office recorded 1,573 successful TASC completions for marijuana offenses in fiscal year 2016, which ended in July, and 360 unsuccessful completions. Each successful completion netted the MCAO $650, for a total of just over $1 million.

But the 360 scofflaws who failed to complete the program don't get off the hook. Their cases revert back to felony prosecution, and if they are convicted, they are liable for fees — some of which go to the MCAO.

Most marijuana-possession prosecutions don't involve a felony conviction — they're bumped down, through a plea deal or otherwise, to misdemeanors. But they still result in costs to the offenders, and payments to the MCAO.

Last week's Republic story quotes Montgomery as saying that diversion saves offenders money, and that they'd pay more in fees if they were prosecuted. Jacinto confirms that the office also receives money in those cases but says the MCAO has never broken out the amount to tally it.

On average, Phoenix police are currently arresting 2,500 adults a year for marijuana possession. But that doesn't account for all the other municipalities in Maricopa County, which also submit their cases to the county attorney's office. Given that Phoenix accounts for roughly half of the county's total population, it would seem reasonable to assume that other cities in the Valley add one or two thousand cases annually.

Splitting the difference and adding 1,500 Valley cases to the Phoenix police's 2,500, Montgomery's office stands to lose at least $2.6 million in revenue from its $100 million budget.

(The actual number of marijuana cases Montgomery's office sees might be much higher. Given that Metro Phoenix is home to two-thirds of the state's population and that 13,000 people are arrested for marijuana offenses each year, Montgomery's office might receive as many as 8,500 felony marijuana cases annually. A public-records request to the MCAO seeking an exact figure has not yet been approved for release, according to the office.)

And there are other factors to consider. Juveniles account for hundreds of additional possession cases — and, presumably, more money to the prosecutor's office. If Prop 205 were to become law, juveniles caught with less than an ounce of pot would be subject only to a $300 civil fine. (More than an ounce would remain a felony for juveniles.) And because Prop 205 allows for Arizonans to grow their own marijuana, any amount of weed from legally grown plants would also be legal — meaning the number of possession cases involving more than 2.5 ounces might drop as well.

The MCAO also might not receive as much money in forfeited cash or property if marijuana were legalized. The office hasn't calculated that potential impact, either.

Jacinto says the office can't agree with New Times' numbers — but she didn't deny them, either.

"Because so much of the math you propose is based on assumptions, it's difficult to offer you a confirmation," she says.

Variables left out the equation, she adds, include the fact that sometimes police submit a possession-of-marijuana case, but it doesn't result in either diversion or prosecution. Also, she says, the office sometimes lowers fees for low-income defendants, which reduces the amount collected by the MCAO.

"The narrative that MCAO will suffer financially if Prop 205 passes is an assumption and one we cannot confirm," Jacinto says.

Updated 10/31/16 12:30 p.m.: Bill Montgomery's promised rebuttal to Megan Cassidy's story appeared today in the Arizona Republic, but it didn't challenge Cassidy's facts.

Montgomery's facts, however, could use a closer look:

• "There is no relationship between the future of TASC, which exists to mitigate the harms of substance abuse, and the fate of Prop. 205."

That's not what Douglas Kramer, CEO of TASC says. In January, Kramer told New Times that if voters pass Prop 205, the company would lose a significant funding source and would likely need to seek other funding sources.

• "TASC diversion also helps marijuana users who are involved with other drugs. In fact, 7 percent of marijuana users in the program also use cocaine, 3 percent methamphetamine, 3 percent multiple drugs and 2 percent opiates."

Montgomery's right in that only a fraction of marijuana users treated by TASC use other drugs. But he doesn't mention here that 77 percent of TASC clients are marijuana offenders: They carry the entire program.

• "The available evidence suggests that any 'losses' from diversion of marijuana cases will be offset by the increase in other drug offenses."

Montgomery's office assured New Times that it has no evidence on this subject and has no idea what its losses would be, making it unclear how Montgomery can make this claim.

• "Ms. Cassidy’s article betrays the 'financial incentive' that proponents of 205 have in the passing Prop. 205. Sadly, it also proves that they oppose any need for treatment for marijuana use."

Montgomery's making the classic — and false — claim that any "marijuana use" is abuse or reflects addiction. According to the latest research, roughly 12 percent to 16 percent of current marijuana consumers in the United States meet the definition for dependency.

Nor does Montgomery's rebuttal contain statistics that voters could use to learn about the many marijuana-possession cases his office handles annually.