Using racial demographic data from cases prosecuted by the county over the span of five years, the civil liberties group found that Black and Hispanic people fare significantly worse than white people in case outcomes.
For instance, the analysis found that white people were more likely to have their cases dismissed or not filed, Hispanic defendants are ordered to pay higher fines than whites, Black and Hispanic people prosecuted by the county spend more time incarcerated than white people, and that, when prosecuted for simple marijuana possession, Hispanic people are sentenced to longer jail sentences than their white counterparts.
"It’s very clear that there is a problem of systemic racism and bias within the Maricopa County Attorney’s Office," Analise Ortiz, a spokesperson for the ACLU, told New Times. "This is something that we’ve known for years because of the experiences that we hear from people who are directly impacted and now the data is showing it."
When asked for comment on the report, Jennifer Liewer, a spokesperson for the Maricopa County Attorney's Office, said that the office hadn't "closely" reviewed the report and couldn't comment on its specific findings. (New Times had sent Liewer a copy of the report to review on the morning of July 16.)
"Without more closely examining the report, it is difficult to provide input on the specific findings released today. The criminal justice system is a huge system made up of individual cases and this office is committed to reviewing each case individually and assessing the facts and evidence that apply to that case," she wrote. "Maricopa County Attorney Allister Adel believes in smart justice to ensure the most dangerous offenders are held accountable but those who want to “do better and be better” are given the opportunity and provided the resources necessary to do so regardless of race, ethnicity, gender or socioeconomic status."
The Arizona Prosecuting Attorneys' Advisory Council did not respond to New Times request for comment.
The ACLU commissioned Melissa Kovacs of FirstEval, a local data analytics firm, to produce the analysis.
Context Lacking in Some Findings
There are some important caveats to the report's findings.
For instance, the report says that on average, Black people spend about eight more months behind bars than white people, while Hispanic people spend seven more months incarcerated. Similarly, Hispanic people spend an average 298 days incarcerated when charged with "simple marijuana possession" — almost two months longer than white people prosecuted for the same crime. Without a medical marijuana card, possession of any amount of marijuana in Arizona is technically a felony.
Yet it's rare, according to some attorneys, that people spend that much time in jail for simple marijuana possession in Maricopa County without additional factors or prior criminal histories.
The existence of a prior criminal history or multiple charges alleged by police after an arrest may or may not be related to actions by the county attorney's office. But Ortiz acknowledged that the analysis as a whole didn't account for the past convictions of the individual cases, including violent criminal histories. She argued that systemic racism, such as biased policing, leads to non-white defendants having lengthier criminal histories.
"Black and Latinx people are more likely to interact with the legal system because of over-policing, because of prosecution," she said. "The racism that’s inherent in the legal system is the basis of the report and these findings."
Due to Proposition 200, a ballot initiative that was approved by the voters in 1996, non-violent marijuana users cannot be sentenced to jail or prison time for their first possession offense. People convicted of a second simple possession offense can't be sentenced to prison under the law and usually don't face long any significant jail time without other factors involved.
Judges and prosecutors consider a defendant's past criminal history or the existence of multiple charges not just for determining eligibility under the 1996 law in marijuana cases, but also to calculate a suspect's flight risk and weighing the length of a jail or prison sentence.
"I can tell you, just from practicing as long as I have, if it’s brought to the attention of the court that the person is Prop-200 eligible, there’s no way they’re going to be sentenced [to jail time]," said Tom Dean, a local lawyer who handles marijuana cases. "People are ineligible for those programs, though, if they’ve done them [past possession charges] in the past or have other convictions."
In other scenarios, some defendants are originally charged with possession for sale, but end up getting convicted of simple possession and agreeing to jail time in a plea agreement with prosecutors, Dean said.
"If there’s discrimination, it’s not going to be coming from the bench, it’s going to be from the county attorney’s office and it’s built into the plea," he said.
Also complicating the findings is that, according to Ortiz, the data includes time spent behind bars before defendant's cases have been adjudicated, commonly referred to as pre-trial. The report frames the finding as a racial disparity in how people are "sentenced," when the data groups pre-trial and post-conviction jail time together.
When asked for comment on the characterization, Ortiz acknowledged that it could be "inaccurate," but pivoted to the notion that the ACLU wanted to emphasize the racial disparities in the total amount of time that people spent in jail.
"If you’re asking [if] the term 'sentenced' is inaccurate, I guess that could be argued, but for an incarcerated person, there’s no difference," she said. "Either way, they are sitting in a cage."
"There are a lot of factors that have to be weighed in that are unknown at this point to know how bad this disparity is, but it certainly begs to have a closer examination of those variables to see what extent there is bias," Dean said. "It's troubling to see and needs a closer examination for sure."
Disparities Are Wide-Ranging
According to the ACLU's report, when it comes to sentences of probation for the charge of personal possession of drug paraphernalia, Black people spend an average three more months on probation that white people convicted of the same charge, the report claims. Hispanic people, meanwhile, spend nine more days on probation than white people.
White people also see their cases dismissed more often than their Black and Hispanic counterparts, the report says. The analysis found that among white defendants, roughly 11 percent have their cases dismissed, whereas just 8 percent of Hispanic people have cases dismissed. A little under 11 percent of Black people have their cases dismissed.
In the same vein, white people are "significantly more likely" to have initial charges that are ultimately not filed by prosecutors in comparison to Hispanic and Black people, it says. Among white people, 10.5 percent did not have cases filed against them, compared with 9.6 percent of Black people and 9.4 percent of Hispanic people.
When ordered to pay fines, Hispanic people pay fine amounts that are, on average, $246 greater than fine amounts for white people. This figure was reached after controlling for charge severity, presence of a plea, gender, and the number of days someone's case was in the court system, the report states. Additionally, on average Black people pay fine amounts that are roughly $70 more than white people.
"It’s so unjust that we’re seeing fine amounts that much greater that Hispanic people are forced to pay into the system," Ortiz said.
The ACLU has been battling with the Maricopa County Attorney's Office for years to obtain the data used in the new report, the group said. The organization first filed a records request for racial demographic data back in 2018, but claimed that it went ignored for months — prompting it to file a lawsuit in 2019 alleging that the office was violating state public records laws.
"Clearly, they’ve had the data all along and it’s a matter of actually acknowledging it," Ortiz said. "If they wanted to sit down and analyze this and be intentional about reviewing certain prosecutors' behavior as it relates to black and brown communities, the county attorney could do that tomorrow."
"Prosecutors operate in secrecy and they get away with so much harm because the public doesn’t know what is getting done," she added.
The report makes several broad recommendations for the Maricopa County Attorney's Office. These include increasing transparency by making its policies and procedures available online and posting more case data online, plus working with law enforcement to reduce racial disparities in arrests. The ACLU proposes creating a "no-call list" of officers who have committed misconduct or displayed racial bias. (The prosecutor's office did recently roll out a new online data dashboard, but Ortiz argued that it doesn't go far enough.)
Ortiz and other criminal justice reform advocates argue that prosecutors play a major role in reducing racial disparities in the justice system. Prosecutors have significant discretion in what charges they choose to file and dictating case outcomes during plea deal negotiations. For that reason, it's on the prosecutor's office to use its discretion to stop practices leading to racial disparities, such as charging people for simple marijuana possession, the ACLU says.
"From the moment that someone is arrested, the way that they are going to be charged and their fate is in the hands of a prosecutor because the prosecutor is deciding what charge is appropriate for that crime," Ortiz said. "What we see is they use that discretion to drive racially disparate outcomes, whether intentional, unintentional, implicit or explicit."
We've embedded the report below: