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Maricopa County Attorney Bill MontgomeryEXPAND
Maricopa County Attorney Bill Montgomery
Gage Skidmore via Flickr

Lawsuit Against Bill Montgomery's Marijuana Diversion Shakedown Moves Ahead

Mark Pascale had just dropped his girlfriend off at work in Peoria and was driving back home when another car started tailing him. The other driver held down the horn, trying to get Pascale's gold sedan to speed through a yellow light at North 75th Avenue and West Cactus Road. When Pascale didn't speed up, the car sideswiped him and sped through the red light.

Pascale pulled into the Circle K and called the police to report the accident. It was almost 4 p.m. on Monday, May 1, 2017, and the afternoon heat was starting to cool. Before long, Peoria police pulled into the gas station as well. As an officer approached, he noticed a glass bong adorned with marijuana leaves perched in the central console of the vehicle.

He didn't ask Pascale about the damage to his car or whether he was okay. He asked about the bong. Pascale, who was 60 at the time and is disabled, told the officer it was his girlfriend's bong. He said he doesn't smoke weed, but his girlfriend, who had a medical marijuana card, wanted to smoke before work, and he had just dropped her off.

Police ransacked Pascale's car, found a small pouch of weed for the bong, so they wrote him up for marijuana possession, a felony in Arizona, no matter how small the amount. They didn't take Pascale to jail, but three months later, Pascale got a summons in the mail stating that he was being charged with a class 6 felony for marijuana possession.

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Although Arizona law prohibits people from being sentenced to jail for first or second marijuana possession arrests, Maricopa County Attorney Bill Montgomery's office used the threat of felony prosecution to get Pascale to enroll in Montgomery's marijuana drug diversion program. On October 30, Montgomery's office suspended prosecution for Pascale, on the condition that he complete a drug diversion with the Treatment Assessment Screening Center (TASC).

What happened to Pascale next is the subject of a federal civil rights lawsuit against Montgomery's office and TASC, which alleges that the marijuana diversion program is being used as a money-making scheme that extorts the poor by threatening them with felony prosecution. In doing so, Montgomery and TASC are violating Pascale's and others' constitutional rights to equal protection and due process under the law.

Pascale suffers from a severe degenerative disc disease, which has left him both unable to work and in a constant state of pain. He takes an anti-epileptic drug, an anticonvulsant drug, and morphine every day. He has a 15-year-old son, for whom he is the sole provider. Pascale, a former bodybuilder who fixed cars for a living, had to file for bankruptcy in 2008 and relies on disability benefits — in addition to what he can scrounge from yard sales and thrift stores to sell on eBay — to pay the bills.

When Pascale showed up for orientation under TASC, he was told to pay a $150 application fee, which he could not afford. A TASC employee allowed Pascale to pay $75 that day, but told him he was on the hook for the remaining $75 and would need to pay it to complete the program and avoid being prosecuted for a felony.

The employee told Pascale he could complete the program in 90 days, so long as he paid all the fees and didn't fail any drug or alcohol tests. But Pascale couldn't afford to pay $17 several times a week for each time he was called in for a random drug and alcohol test, let alone the $950 in program fees.

Pascale's case worker said there was no way to waive or reduce the program fees, but he could apply for a fee reduction to have the drug testing costs lowered. He did, noting that he was disabled, worked zero hours a week, and made $920 a month in disability benefits.

He didn't qualify for a reduced fee. His case worker said the fact that Pascale owned a computer and paid for internet disqualified him, since those were considered "luxuries."

"I had to borrow money from friends, family, whoever would help me," Pascale told Phoenix New Times. "I realized I couldn't afford this, but if I don't afford this, I could end up in jail. I had to keep going on the program."

(Pascale technically cannot be sentenced to jail due to the 1996 law the prevents judges from sentencing people to jail for their first or second marijuana possession offenses. But his misconception likely stems from the way Montgomery's office uses the threat of felony prosecution as a scare tactic to get people to enroll in the expensive diversion program.)

"Every day, you have to call in to see if your number is called," Pascale said. If your number is called, you have to report to a TASC drug-screening center with cash or a money order for a urine analysis (you can use a credit card, but they charge you extra for that). Pascale, who said he was never addicted to marijuana, said the frequent drug tests were made even more burdensome by his prescription pain medication. If the test came back positive for any drugs, he'd have to take another, more costly urine test.

"They watch you when you go to the bathroom," Pascale said. "It was so humiliating."

Besides borrowing money from friends, Pascale had to start skipping payments on his bills in order to pay TASC for the dozens of random drug tests they demanded he take. After the 90 days were up, Pascale had fulfilled all of his requirements and hadn't failed a single test.

But he hadn't finished paying the $950 in fees. So he was forced to continue the diversion program until he could finish paying, meaning he had to continue showing up multiple times a week for random drug tests, which would cost him an additional $15 to $75 a week.

Because Pascale was poor, Montgomery's marijuana diversion program forced him to remain on the program twice as long and pay twice as much as someone with the money to pay the fees right away.

The hard part was getting stressed out trying to get money to pay for it, "because my case worker said, 'If you go back to court, you'll lose everything you put into it and start all over,'" Pascale said.

On June 29, 2018, Pascale finally completed the program. Two months later, Civil Rights Corps, a nonprofit dedicated to challenging systemic injustice in the American legal system, filed a federal lawsuit against TASC and the Maricopa County Attorney's Office.

Civil Rights Corps says the program's exorbitant fees create a "two-tiered legal system" that penalizes the poor. It's unconstitutional, the group argues, because the program allows some people to finish in 90 days, while those who cannot afford the fees must adhere to the program's many requirements for far longer. By allowing the people who can afford to pay to complete the diversion program in 90 days, the lawsuit states, the defendants have shown that 90 days is a sufficient amount of time for treatment, and that the only thing keeping people there any longer is money.

For as long as people remain enrolled in TASC's program, they must call every day to see if they need to come in for a urine test, where employees watch through glass panels or mirrors while them urinate. They pay for the urine tests, remain under threat of felony prosecution, cannot leave the state without TASC's permission, cannot leave the county for more than one day without informing TASC, cannot take prescription medication without reporting it to TASC, and cannot use alcohol, including over-the-counter medications containing alcohol, like Nyquil.

"In principle, the programs are 'intended to relieve overburdened courts and crowded jails, and to spare low-risk offenders from the devastating consequences of a criminal record.' But in Maricopa County, they serve another purpose: to make money for those who operate the program, including the MCAO," the lawsuit states.

"Between 2006 and 2016, MCAO collected nearly $15 million in revenue by diverting threatened prosecutions to TASC," giving TASC and Montgomery's office "a financial incentive to enforce the policies this way — and to use the specter of termination and felony prosecution to coerce as much money from participants as they can."

Both TASC and Montgomery's office have fought tooth and nail to get the lawsuit dismissed. On November 11, 2018, TASC and Montgomery's office filed a motion to dismiss, but it took six months for a hearing on the motion to be scheduled.

On May 22, lawyers from Civil Rights Corps flew from Washington, D.C., to Tucson to argue their case. A handful of people gathered in a small, bitterly cold courtroom on the fourth floor of the federal courthouse on West Congress Street. On the left sat representatives from TASC and Bill Montgomery's office. On the right, attorneys and other members of Civil Rights Corps sat on wooden benches, alongside Pascale, who had driven down from Phoenix to be there that day.

Ann Uglietta from the Maricopa County Attorney's Office made a bewildering, highly technical argument that appeared to be little more than a desperate Hail Mary to avoid being on the hook for damages. With the help of a projector, Uglietta pulled up screengrab after screengrab of changes over time to Arizona state law regarding county attorneys and drug diversion programs, attempting to argue that Bill Montgomery acts on behalf of the state when it comes to carrying out a drug diversion program.

Had she been able to establish that Montgomery was acting on behalf of the state, not the county, then the county wouldn't be held liable for damages. But the judge wasn't buying it.

"Deferred prosecution programs are established by the state legislature and the Arizona Prosecuting Attorneys’ Advisory Council (“APAAC”) establishes the program guidelines," Judge Eric Markovich wrote in a June 18 order denying the defendants' motion to dismiss the case. "The statutes show an intent by the state legislature that deferred prosecution programs are local programs, that it is up to each county/CA to determine whether to have such a program and how the program will be established and administered."

The attorney for TASC, meanwhile, attempted to argue that Civil Rights Corps hadn't proved they violated the Constitution or had a wealth-based termination policy.

As Dami Animashaun and Katie Chamblee-Ryan, attorneys for Civil Rights Corps, argued in court, TASC's own paperwork proves otherwise.

Markovich didn't go for TASC's argument either. The judge found that if the program is working as Civil Rights Corp has alleged, it does violate equal protection and due process. Markovich also seemed dismissive of the idea that the plaintiffs hadn't established a policy. The judge determined the plaintiffs had established enough to survive a motion to dismiss, and will likely uncover more to bolster their claims during discovery.

On June 18, Markovich denied TASC's and Montgomery's motion to dismiss the case. Now, both sides will gather evidence from each other and work to prove their claims. Once they've gathered the evidence, the court will decide whether there's enough for the plaintiffs to proceed to trial.

"This is a huge victory for our clients and for the people who will become our class members who are being nickel-and-dimed from the County Attorney's Office and TASC for marijuana possession, often for very small amounts," Chamblee-Ryan told New Times. "We're hopeful that this litigation will help end this exploitative practice.

"I think it sends a strong message that prosecutors can't see diversion as a money-making opportunity," Chamblee-Ryan continued. "It's supposed to be an off-ramp from the criminal justice system, not a way to build your coffers. It is not good or constitutional to raise funds off the backs of poor people."

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