Judge won't block sentencing reform measure from being on Nov. ballot

Maricopa County Superior Court Judge Joseph Mikitish late Friday rejected arguments by Pima County Attorney Barbara LaWall and some crime-victim advocates that the required 100-word description of the measure failed to inform those signing the initiative petition of exactly what it would do.

The judge said he found the wording contained nothing that was either fraudulent or created a significant danger of confusion or unfairness, the legal standard by which these statements are measured.

And Mikitish specifically spurned the suggestion that initiative crafters were misleading signers — and would mislead voters if the measure gets on the November ballot — by saying the additional judicial leeway would apply only to “nondangerous” offenses.

Attorneys for challengers argued that a “reasonable voter” would not understand that the category legally includes things like sex trafficking of a 15-year-old child, conspiracy to commit murder, terrorism, kidnapping and home invasions.

The judge did not dispute that contention. But he said its not that simple, saying the term is “open to a wide variety of interpretations.”

“From a layman’s perspective, a ‘dangerous’ offense frankly could apply to almost any crime in the criminal code,” Mikitish wrote.

“Conduct is made criminal because it involves the actual or risk of injury, danger, or harm of some person in the community at large.”

Looking at it that way, the judge said, some people might conclude there is no such thing as a “nondangerous offense” while others might conclude it is one that does not involve injury to others.

And there’s something else.

Mikitish said anyone who was unclear about what is and is not included could simply read the actual petition language which, by law, has to be attached to signature sheets. And there, he said, they would have learned that the measure defines “nondangerous” offenses as anything other than first- and second-degree murder, child molestation, rape, and anything defined by the legislature as a dangerous offense.

Nor does Mikitish believe that it matters the term might seem biased and incomplete. He said the 100-word description does not need to be impartial or provide every detail of every provision.

“A reasonable voter is likely to understand that every proponent of a ballot initiative is attempting to gain his or her support and is likely to highlight the positive aspects of the proposal,” the judge said. “Like in any market, a certain level of puffery must be expected.”

And he said the answer to that is for foes to make their own claims to voters.

The initiative crafted by Arizonans for Second Chances, Rehabilitation and Public Safety would alter current laws on incarceration that date back to 1978 when legislators voted to impose mandatory prison terms for certain crimes. It would allow to deviate “in the interest of justice,” even to the point of suspending sentences and placing people on probation.

It also would amend a 1993 “truth-in-sentencing” law that says criminals must serve at least 85% of their term before being eligible for release. This would allow the release after 50% of sentence for those serving time for nondangerous offenses who meet other qualifications.

Challengers also charged that the proposal violates the Victims Bill of Rights in the Arizona Constitution because victims may not have the right to be heard when the Department of Corrections, Rehabilitation and Reentry recalculates the earned-release credits of criminals who already have been sentenced. But Mikitish apparently accepted arguments by the campaign committee that any constitutional arguments can’t be decided unless and until the measure is approved.

There was no immediate response from LaWall, who is retiring at the end of the year. But she is likely to seek Arizona Supreme Court review.