Tuesday morning, the Arizona Daily Star published an opinion piece by Pima County Public Defender Joel Feinman about how Arizona prosecutors keep killing criminal justice reform bills. But the op-ed was quickly deleted from the newspaper's website following a phone call from Yavapai County Attorney Sheila Polk.
According to Feinman, Polk called him, then the Daily Star's opinion editor Sarah Gassen to complain about the piece. Polk allegedly said that Feinman had not been truthful about her efforts to lobby against one of the bills, SB 1334, and demanded he retract the piece.
When Feinman refused, the county attorney called the Daily Star to complain — and the Daily Star deleted the entire op-ed from its website, without issuing a correction or calling Feinman's sources, who confirmed to Phoenix New Times that Polk had indeed lobbied against the bill. Though Polk eventually signed onto the sentencing reform bill as neutral, emails shared with New Times show Polk had explicitly asked lawmakers to oppose the bill.
"The Daily Star immediately chose to believe a very powerful person who didn't like a story because it cast them in a negative light," Feinman told New Times.
Around 3 p.m. on Tuesday, New Times asked Gassen about Feinman's account of their phone call and her decision to remove the op-ed from the website. Gassen said she was at a doctor's appointment and could not respond. Sheila Polk did not respond to an email seeking comment.
Around 7 p.m., the Daily Star republished Feinman's op-ed with a note from the editor stating that the column had been edited from the earlier version "to exclude a passage that didn't meet our standards for attribution in local submissions."
Gassen then issued a statement on the Daily Star's Twitter and Facebook pages and sent that statement to New Times:
Sarah Gassen’s response to a controversial decision made today concerning a guest column: pic.twitter.com/w67LB6kqtX
— Arizona Daily Star (@TucsonStar) June 12, 2019
Feinman said he offered Gassen attribution, but said she did not pursue it. In the end, Gassen removed what Feinman wrote about prosecutors fighting SB 1334 behind closed doors and Polk saying prosecutors should determine sentences, not judges. New Times spoke with two people who were in the room and heard Polk say that, and found that Polk sent an email asking legislators to oppose the bill, while Maricopa County Attorney Bill Montgomery and Pima County Attorney Barbara LaWall sent Ducey a letter asking him to veto it.
In his op-ed, Feinman, who has had several pieces published previously by the Daily Star, pointed out that Ducey signed only one criminal justice reform bill into law this year, and stated that Arizona prosecutors and their lobbying arm, the Arizona Prosecuting Attorneys' Advisory Council, had influenced the paths of criminal justice reform bills this session.
On Friday, Doug Ducey vetoed SB 1334, a modest sentencing reform bill that would have put Arizona on par with other states by preventing judges from sentencing people as if they were repeat offenders when they had never before been convicted of a felony. The bill passed unanimously in the House twice and got only three "no" votes in the Senate.
Arizona may currently be the only state that allows prosecutors to charge first-time offenders as repeat offenders. SB 1334 sought to rectify that and give more discretion to judges.
"I used to work as a public defender in Yavapai County," said Jared Keenan, staff attorney with the American Civil Liberties Union of Arizona. "This law allows prosecutors to put pressure on people to take plea deals. It was used routinely, including in controlled drug buys, where police would record interactions with people they suspected of being drug dealers.
"They'd have plenty of evidence to charge people with a crime, but they'd leave these 'dangerous drug dealers' out in the community, let five more buys happen, hold a decades-long sentence over their head, then use the repetitive offender sentencing law as leverage to get them to take a plea."
According to Feinman, Polk took issue with his statement that "Arizona's most powerful elected prosecutors lined up to kill the bill, including Pima County Attorney Barbara LaWall, Maricopa County Attorney Bill Montgomery, and Yavapai County Attorney Sheila Polk. In public, all three elected officials claim to support some sort of criminal justice reform. Yet their claims proved hollow this year when, behind the closed doors of the state Capitol, they vehemently opposed ending mass incarceration in our state."
Feinman said that Polk had lobbied against the bill and told lawmakers that "prosecutors, not judges, should have the power to determine what is and is not an appropriate sentencing range for criminal defendants."
Polk apparently took issue with Feinman stating that she had lobbied against the bill, but emails shared with New Times and firsthand accounts of people who were present during meetings about the bill show Polk did fight against the legislation.
First, on May 14, Polk sent an email to senators explicitly asking them to oppose the bill. Then she got stakeholders to amend the bill, weakening it.
Two people who were present during a May 21 conference call with Polk and other SB 1334 stakeholders about the bill confirmed to New Times that Polk expressed that judges should not have the discretion to determine who should have long sentences and who should not.
"What she said in that room showed this lack of trust in judges," said Emily Levett, state policy manager for criminal justice reform at FWD.us. "I think that's heartbreaking. Judges should be able to have the discretion to decide who should go to prison and who should be on probation."
"The whole point about SB 1334 was that it gave judges more discretion to look at situation and decide what's fair," said Nate Wade, a Pima County public defender who was also present at the meeting. "Sheila said, no, you couldn't trust judges to do that, you would get wildly different outcomes, and the prosecutors are the only ones who could be trusted to evaluate the case and determine what the proper sentence should be."
The Arizona Association of Counties promised county prosecutors were neutral on the bill, but Montgomery and LaWall went back on their word at the last minute and sent Ducey a letter urging him to veto the bill on May 29.
Polk did not sign the letter.
It's unfortunate that the Prosecutors did not keep their word and stay neutral on this bill. After all, the changes we made were at their request. I suppose it's always true that no one likes to give up power. https://t.co/gwGVp9RMMF
— Ben Toma (@RepBenToma) June 8, 2019
The Arizona Capitol Times later reported that "Polk went on to contact [Republican state senator] Eddie Farnsworth on the last day of session to talk about the bill."
On June 7, Ducey said he vetoed the bill due to concern over "unintended consequences," something Montgomery and LaWall said word-for-word in their letter.
Polk told the Arizona Mirror she did not ask Ducey to veto the bill. But her signing on as neutral at the last minute doesn't change the fact that she fought against the bill most of the way, including explicitly asking lawmakers to oppose it and adding on amendments that reduced the impact the legislation would have.
"Sheila Polk's response to the Daily Star is particularly troubling given that prosecutors offices are like black boxes," Keenan said. "Prosecutors love to hide behind this idea that they don't make the law, they just enforce it, and that's not true. They are actively working behind the scenes to craft laws to their liking and keep sentences unnecessarily harsh, which leads to the crisis of mass incarceration that we have in Arizona."
