Maricopa County suddenly seems interested in criminal justice reform, if the 2020 county attorney's race is any indication.
This would be a new development in a county that includes metro Phoenix and is home to voters who repeatedly elected hard-line conservatives like Sheriff Joe Arpaio. In November, voters will choose between a Republican appointee who's trying to woo progressives and moderates, and a progressive Democrat who regularly questions how police misconduct is handled.
If it really has abandoned its staunch law-and-order tradition, Maricopa County would not be alone. A growing number of reform-minded prosecutors have been elected across the country in recent years, many of them in well-populated urban counties. These candidates won by promising not only to deal justice but to also bring a more humane approach to the entire justice system. In these races, "tough on crime" rhetoric, long a staple of district attorney campaigns, is out, and "progressive prosecutors" are in.
The new dynamic is playing out before our eyes in this fall's race for Maricopa County Attorney, where both incumbent Republican Allister Adel and Democratic challenger Julie Gunnigle are marketing themselves as reformers.
"This is going to be a referendum on criminal justice reform in Maricopa County," said Armando Nava, a local defense attorney, of the race. "The winds of change are blowing. They might be slow, but they’re blowing."
"There is more desire for criminal justice reform than there has been in years," he added. "Some of the things that are getting tossed around in Arizona, five years ago if you told me they would be on the table, I would have said 'no way.'"
Adel was appointed Maricopa County Attorney last year by the Board of Supervisors after her predecessor, Bill Montgomery, resigned to become a justice on the state Supreme Court. Montgomery had earned a reputation for having a bias against marijuana and opposing criminal justice reform — he lobbied against a sentencing reform bill and infamously tried to prosecute medical marijuana patients — over the course of his nine-year tenure as county attorney.
Adel vowed to clean up the office, which had been bombarded by bad headlines about allegations that Montgomery covered for a top prosecutor, Juan Martinez, who was accused of sexual misconduct.
A registered Republican in Maricopa County since 2000, Adel got her law degree from Arizona State University's College of Law in 2004 and went on to work for the county attorney's office between 2004 and 2011. She publicly hinted early after her appointment in October 2019 that she was open to reform.
Now, less than a year later, Adel finds herself in a political pickle. A nascent politician but also an incumbent, she's trying to convince voters that she's a forward-thinking Republican, not another Bill Montgomery, while also defending her seat and all the conservative DNA it contains against Gunnigle, who is positioning herself as a liberal champion of criminal justice reform.
Gunnigle embraced the "progressive prosecutor" mantle in an interview with Phoenix New Times. Like Adel, she has considerable prosecutorial experience. After receiving her law degree from Notre Dame University Law School, she went on to work as assistant state's attorney in Cook County, Illinois, where she prosecuted financial crime and public corruption. (She garnered criticism during the 2020 Democratic primary for her involvement in a controversial case when she was in Illinois where she was accused of prosecutorial misconduct; she has denied any wrongdoing.) Gunnigle also unsuccessfully ran for the Arizona House of Representatives in Legislative District 15 back in 2018.
She says she wants to dismiss low-level marijuana possession cases and ban prosecutors from asking for bail bonds, which critics argue unfairly keep indigent, low-risk defendants behind bars and cause them to lose housing and jobs in the process.
"We are using some of the most regressive policies that we know are ineffective for keeping our community safe and saving us money," Gunnigle said. "We can have reform in a way that still keeps us safe and that is evidence-based."
The Maricopa County Attorney's Office is the third-largest prosecutorial agency in the nation, with over 900 staffers — including 318 prosecutors, 100 paralegals, and 56 investigators in the criminal division alone. It files around 30,000 cases annually.
Prosecutors have immense discretion in deciding which cases they file and how to charge them, the type of release conditions they request for defendants pre-trial, and the terms of plea deals they'll offer and accept. Some experts, such as John Pfaff, a professor of law at Fordham University and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, argue that elected prosecutors are the primary cause of burgeoning jail and prison populations due to their aggressive filing practices.
Over the course of her short tenure, Adel has been using her discretion as prosecutor to roll out a series of policy initiatives that some observers argue are progressive and reform-minded.
In August, she announced a new policy that anyone charged with simple marijuana possession can apply for a medical marijuana card and avoid prosecution. Her office has established a unit to investigate wrongful conviction claims. She publicly released the agency's policies governing plea deals over the summer. Before that, Adel overhauled the county's drug diversion program, which had been challenged in court under
Montgomery, to make it more affordable.
Her campaign has also explicitly promoted initiatives under the reformer banner, citing the policy changes in a September 17 campaign email titled "Allister Adel Implements Criminal Justice Reforms at MCAO."
"I believe in smart justice and that the most dangerous and violent [people] are held accountable," Adel told New Times. "Those who want to do better and be better should be given the opportunity to reduce recidivism, regardless of race, ethnicity, gender, [and] socioeconomic status."
Depending on who you ask, the policy initiatives are either a cynical ploy during an election year when hard-line prosecutorial policies are less popular, or evidence that Adel sincerely believes in a different approach as county attorney.
"She seems to be genuine about the reform positions that she’s taken," Nava said. "I'm not cynical enough to think that she’s just doing this because it’s an election year."
"Adel is making a bunch of superficial political moves right now to gain favor to folks who are looking for topical, surface-level reforms," said Lola N’sangou, executive director Mass Liberation Arizona, a criminal justice reform group. "She’s so out of touch with the issues that she might even think that she’s making substantive changes but she’s not connected with the community."
"It appears that toward the end of the primary, and after it, that Adel has at least adopted some new platforms that can be said involve looking at reform," said Thomas Henager, a former longtime Maricopa County public defender who now works as a private defense attorney. "When it comes to things like how prosecution is handled with marijuana, there’s probably going to be a lot of people voting who care about that issue from the left and the right. It’s good in the eleventh hour to have something that you can put up to say you are also concerned about that."
Not surprisingly, Gunnigle doubts the sincerity behind Adel's recent policy initiatives.
"I'm distrustful of these plea policies that are changed [months] before ballots drop," she said. "And I think the public ought to be, too."
Lorna Romero, a spokesperson for Adel's reelection campaign, dismissed that notion as "laughable and pathetic criticism." She cited Adel's decision to overhaul the Felony Diversion program in January and her transition team's review of national prosecutorial best practices.
"From day one, Allister has been committed to transparency, accountability and smart justice," Romero wrote in an email. "The critics are just upset that she is an effective leader who actually gets things done."
Some defense attorneys and public defenders say Adel's leadership has changed the office for the better, albeit only recently. Prosecutors now seem to have more discretion than they did under Montgomery's leadership and are taking a less extreme approach to defendants accused of drug charges, they said.
Katie Gipson-McLean, an attorney working for the Maricopa County Public Defender, said that ever since Adel rolled out her new plea policies in mid-August, "Their approach now, for drug cases anyway, is that they’re going to exhaust every possible method of getting a person treatment or offering them treatment. Their drug plea policies are what really have changed."
"Before all these plea policy changes, it wasn’t wasn’t uncommon to still get marijuana pleas for prison for people who had one or two priors," she added. "It seemed like things were business as usual before the policies came out."
Nava said that Adel seems to have given her line prosecutors more discretion in day-to-day casework.
"Under her predecessor, there was an atmosphere of fear. It was run more like a military operation: You defer to your supervisor. If you stepped out of line you could get fired," he said. "What I’ve seen since Allister came along is [her] treating her attorneys like attorneys."
But defense attorneys and public defenders also say she hasn't gone far enough, pointing to prosecutors' alleged tendency to overcharge defendants and a general deference to law enforcement in cases.
"They’re trying to offer diversion to more people than they have before, but that’s not helpful if you’re already over-charging people," Gipson-McLean said. "We wouldn’t have to be here if you weren’t charging marijuana as a felony."
Since she took office, Adel has touted her commitment to transparency, and continues to do so. Over the summer, her office rolled out an online data dashboard with limited information about cases filed by her office, and she told New Times that her office has cleared a "backlog" of public records requests that had piled up during Montgomery's tenure.
"I am a big believer in organizational improvement, process improvement," Adel said. "And we looked with those lenses at our public records request process and we've improved it now, again. We are now down to days or weeks."
Yet staff at the American Civil Liberties Union (ACLU) of Arizona contend her actions don't necessarily match the rhetoric.
For instance, there was her handling of the lawsuit filed in 2019 by the ACLU, which alleged that the office under Montgomery's leadership was illegally withholding public records. While Adel's office eventually released the data that the ACLU wanted and partially settled the lawsuit for $24,000 last month, staffers with the civil liberties organization say the office fought the lawsuit and other requests for information even after Adel took office.
"As much as Allister Adel would like to pin this public records lawsuit on Bill Montgomery, the fact of the matter is she inherited the lawsuit once he went to the Supreme Court and she continued to fight for months after he was gone," said Ortiz of the ACLU. "She continued to argue that certain office policies and procedures didn’t need to be made public."
In response to Ortiz' criticisms, Romero reiterated Adel's efforts to revamp the office's public records process and argued that some information is not subject to public disclosure.
"Within our criminal justice system attorneys have privileged information that is not subject to public disclosure," she wrote in an email. "Allister is committed to transparency and the settlement with the ACLU demonstrates this commitment."
Ortiz said that Adel's move to publish prosecutorial data online — albeit limited data — was prompted by the ACLU lawsuit.
"We asked, as part of the settlement negotiations, for Allister to publish every piece of data that we asked for regarding sentencing online. We also asked her to publish office policies and procedures related to pleas and other policies online," she said. "She declined to do so, but then a few months later she did the exact things that she asked for."
"I think it’s clear that the ACLU of Arizona has pushed her to take these greater transparency measures," Ortiz added, "and I think she sees that it’s what voters want."
An analysis commissioned by the ACLU of the data eventually released by Adel's office showed significant racial disparities in the outcomes of cases prosecuted by the Maricopa County Attorney's Office between 2013 and 2017 — which was before Adel took over the agency. The ACLU found that white defendants were more likely to have their cases dismissed than Black and Hispanic defendants.
ACLU staffers argue these findings are indicative of racial bias in the county attorney's office, but Adel noted that the analysis lacked critical data, such as defendants' criminal history. She said her office is working to get a consultant to review the data.
"I would really like to see more data rather than just commenting on a snapshot of a report," Adel said.
Gunnigle said that the office should release more data to the public and collaborate with outside experts, such as the nonprofit reform group Vera Institute of Justice, to analyze the data and identify policies to reduce racial disparities in the criminal justice system.
"We need far more data than just what's on that dashboard," Gunnigle said. "[The office should be] radically
transparent such that [the ACLU] doesn't have to file a lawsuit to get what is the public's data."
The sparring between the ACLU and Adel over access to information isn't over. As part of their original public records request, the ACLU asked for voting history of a committee that makes recommendations to the county attorney on whether to seek the death penalty. Adel's office is still withholding those records, so the issue is headed to an oral argument at the end of October, said Analise Ortiz, an ACLU spokesperson.
During a previous oral argument back in March concerning the ACLU's record request lawsuit, an arbitrator asked an attorney representing Adel's office about the committee voting records and the public's right to see them.
"Maricopa County Attorney's Office is an elected position. Every four years one or two or three or more people run for that position. I as a voter am charged with the decision of whom to vote for," the arbitrator said, according to a transcript of the hearing. "Don't you think a voter would like to know if the incumbent County Attorney that's running for reelection ... voted to pursue a death penalty even though the committee didn't support that? Don't you think a voter would want to know that?"
In response, Ann Uglietta, Adel's attorney, said, "It doesn't matter if the voter would want to know that. It's still protected information."
On several key criminal justice reform issues, Gunnigle and Adel are miles apart.
For instance, on bail bonds, which critics argue unfairly keep poor defendants locked up while their cases move through the courts, Gunnigle told New Times that she is making a "commitment" to adopt a policy for her prosecutors to not ask judges to impose bail bonds on defendants in any context.
"It is the commitment to not ask for cash bail at all," she said. "People shouldn't be in jail for no other reason than they don't have a couple hundred bucks or thousands of dollars that they need to bail out."
When pressed on her position, Gunnigle clarified that her office would still ask judges to detain defendants who are ineligible for release through bail bonds as outlined in statute, court rules, and the Arizona state constitution. (Defendants charged with capital offenses or sexual assault are ineligible for bail, as are people charged with felony offenses that pose a substantial danger to the public.)
"When I make more generalized statements of 'We're not going to ask for cash bail,' it's, 'We're not going to be asking for cash bail in those instances where we could ask for cash bail,'" Gunnigle said.
Regarding her stance on bail bonds, Adel pointed to provisions in statute and the state constitution allowing for them. She argued that judges have the ultimate authority over dictating defendants' conditions of release, and disputed the notion that prosecutors ask for unreasonable bail bonds for defendants accused of low-level crimes.
"The reason for asking for a secured appearance bond is not punitive. We do not want a debtors' jail — we want people to be back and working while they're waiting the resolution of their case," Adel said. "Bond is there to secure appearance, to protect victims and public safety. And with an eye towards that, we look to a secured appearance bond that is appropriate for that person and their [criminal] history."
"There have been occasions when we have asked for secured appearance because that's the appropriate thing to do, but then the judge sets a cash bond," she added. "We're there to do what is right and follow the law and make a recommendation that is not overly onerous on the person but again, protects public safety and victims."
Then there's police accountability. Since the killing of George Floyd by a Minneapolis police officer in late May, Phoenix has seen regular protests over police brutality, one of the nation's highest levels of police shootings, and subsequent calls for prosecuting the involved cops.
Gunnigle said that she would establish an "independent" unit of prosecutors removed from day-to-day case work and subject-matter experts who could review incidents of alleged police misconduct for criminal liability, and ultimately conduct prosecutions of officers. She argued that the office's regular criminal attorneys are too cozy with law enforcement to impartially investigate them.
"We need an independent and community-involved unit that can prosecute police use-of-force cases," she said, adding that she's seen prosecutors develop relationships with officers and considers it "a conflict of interest."
When asked how this new unit would be impartial when its hypothetical boss, Gunnigle, would still have to maintain working relationships with law enforcement due to the office's routine criminal prosecution operations, Gunnigle pointed to her personal convictions and the fact that the Phoenix Law Enforcement Association (PLEA), the union for rank-and-file Phoenix cops, has endorsed Adel in the race.
"Right now, our current unelected county attorney is the PLEA-endorsed candidate," Gunnigle said. "It's good government to be separated from police and make sure that this office does not have the reputation of being the law firm for police departments."
Romero, the spokesperson for Adel's campaign, argued that it isn't the role of the county attorney to conduct investigations into police misconduct, and that law enforcement holds that responsibility. She added that Adel has "added community members" to the office's Critical Incident Review Committee, which reviews investigations submitted by law enforcement.
"The county attorney's office is responsible for reviewing the investigation and determining if criminal charges should be filed," she wrote. Adel "has made it very clear that anyone who commits a crime, whether they are a law enforcement officer or not, will be held accountable."
Gunnigle declined to point to any specific police misconduct cases that have been reviewed by the county attorney's office in which she would have changed the charging decision, calling it "irresponsible" to comment on cases that could be potentially re-opened for review.
But on September 21, when Adel announced that she wouldn't file criminal charges against the state trooper who fatally shot Dion Johnson, a 28-year-old Black man, Gunnigle didn't hold back. In a press release, she called Adel's charging decision an "act of cowardice," going on to say that the "family of Dion Johnson deserves better."
In a statement provided to New Times, Michael "Britt" London, president of the PLEA, dismissed Gunnigle's candidacy.
"The Phoenix Law Enforcement Association believes Allister Adel is the right person for the job due to her extensive experience as a prosecutor and commitment to transparency and accountability," he said. "Julie Gunnigle has made it abundantly clear that she has no idea how our criminal justice system operates, does not respect the men and women who serve in law enforcement, and uses social media to make baseless 'charging decisions' and accusations without any facts or evidence."
Hype or Reality
Despite the reform-friendly rhetoric coming from both candidates, some observers are still skeptical that criminal justice reform will be a winning issue in November.
Jacob Joss, a data analyst at OH Predictive Insights, a local polling firm, said that traditional conservative law-and-order messaging has played well with Maricopa County voters in the past.
"Maricopa County still leans Republican. My estimation would be that they are more likely to be receptive to tough-on-crime," he said. "But then again, in 2016, we saw in the sheriff’s race between Arpaio and Penzone, it kind of flipped that on its head."
"You see some suburban voters who are traditionally Republican being really affected by the George Floyd protests or seeing some of the more prevalent topics of police and race relations. I definitely think you might be seeing some movement there," he added. "But I’m not sure if that’s just a more broad trend of the suburbs moving to the left whereas they were once very Republican."
The two candidates' donor lists also illustrate how their respective bases of financial support remain more partisan. Gunnigle has received campaign donations from individuals like Joel Feinman, the Pima County Public Defender, Yassamin Ansari, a liberal candidate for Phoenix City Council, and a staffer at the Human Rights Campaign, according to campaign finance reports.
Adel, in contrast, has donations from Ann Justus, a Phoenix Police Department sergeant and department spokesperson, a variety of employees at her office, local private attorneys, and Derrick Hall, president and CEO of the Arizona Diamondbacks.
Their endorsements fall along similar partisan line. Gunnigle has lined up local Democrats such as Phoenix Mayor Kate Gallego, state Representative Athena Salman, as well as labor unions and musician John Legend, who has been vocal about criminal justice reform. Meanwhile, Arizona conservative big-wigs like Attorney General Mark Brnovich, Congressman Andy Biggs, and former Governor Jan Brewer have endorsed Adel.
Local Democrats are banking on the presidential election to boost down-ballot candidates like Gunnigle.
"The turnout here should be pretty high because of everything that is going to be on the ballot," said Edder Diaz-Martinez, director of communications for the Maricopa County Democrats. "It might push us over the edge. It gives us the extra bounce that we need to win a race like this."
In another sign that Gunnigle's reformer pitch may be appealing to conservative voters, state Representative Walt Blackman — a far-right Republican who supports criminal justice reform — expressed interest in Gunnigle's ideas, though stopped short of endorsing her and also praised Adel. Blackman had endorsed Adel during her appointment process.
"I’ve spoken with the Democratic opponent. She seems to want to work towards criminal justice reform that is responsible and measured," Blackman told New Times. "She seems like she’s ready to do some work that is responsible."