Prosecutorial discretion is the topic at an upcoming ASU Morrison Institute event (image: screen shot from the opening sequence of the "order" portion of Law & Order)

Prosecutorial discretion is the topic at an upcoming ASU Morrison Institute event (image: screen shot from the opening sequence of the “order” portion of Law & Order)

So when it rains, it pours.

Later this week, while I attend a conference examining criminal justice, a panel discussion exploring prosecutorial discretion will be held here in Arizona.

Sheesh.

Well, just because I cannot attend the ASU Morrison Institute for Public Policy event, doesn’t mean you can’t. It will be held this Thursday, Feb. 25, from 5:00 to 7:00 p.m.

Here is a description by the organizers:

ASU Morrison Institute logoOver the last 30 years there has been a power shift in Arizona’s criminal justice system, with many sentencing outcomes no longer determined by judges and parole boards but now by prosecutors. Mandatory minimum sentencing, truth-in-sentencing, and three-strikes maximum punishments have greatly increased prison populations in Arizona and elsewhere, taking greater shares of state budgets.

Part of an ASU Morrison Institute for Public Policy series on criminal sentencing reform, The Full Impact of Prosecutorial Discretion will focus on the pros and cons of this shift through this compelling dialogue.

Panelists:

  • Honorable Pamela Gates, Superior Court Judge
  • Honorable Ronald Reinstein, Retired Superior Court Judge
  • Sheila Polk, Yavapai County Attorney
  • Erik Luna, ASU Law Professor

Also: Arizona Sen. Martin Quezada and Arizona Sen. Adam Driggs will engage in discussion about their perspectives on Arizona’s incarceration rates, the role of “discretion,” and whether there is political will in the Legislature for criminal sentencing reform by changing the judicial code or other action.

The event will be held at the Walter Cronkite School of Journalism and Mass Communication, Room 128 (ASU’s Downtown Phoenix Campus, 555 N. Central Ave.)

Details and free registration are here.

When it comes to the ADA's 25th anniversary, should we celebrate? Do better? Or both?

When it comes to the ADA’s 25th anniversary, should we celebrate? Do better? Or both?

Yesterday, I pointed you toward a few news stories regarding the 25th anniversary of passage of the Americans With Disabilities Act. Today, I suggest some additional resources and reading.

Begin with an insightful op-ed by Erica McFadden. She’s an analyst at the Morrison Institute for Public Policy at ASU. As she opens her piece:

“Sunday marks the 25th anniversary of the Americans with Disabilities Act and there is reason to celebrate the progress it ushered in over that quarter-century. But needed still is a call to action to affirm equality — especially in terms of employment.”

“Just one in three Arizonans with disabilities ages 16 to 64 were employed from 2008 to 2012, according to the census. That’s compared to more than two in three (71 percent) Arizonans with no disabilities who were employed during that time.”

“Perhaps even more sobering is the percentage of Arizonans with disabilities not even in the job market: 59 percent.”

And then follow it up with a My Turn column in the Arizona Republic by Jennifer Laszlo Mizrahi where she examines the sad statistics surrounding employment of people with disabilities.

Understanding-the-ADA-Goren ABA bookThird, for the law practice-minded among you, head over the ABA website to consider purchasing a new book titled “Understanding the ADA,” by William D. Goren and described by the publisher:

“This new edition of Understanding the ADA delves deeper into many of the complex topics of disability claims. The updates offer expanded guidance on remedies if the law is violated; advice on when you have a right to sue; the statute of limitations for ADA claims; when a complaint will survive a motion to dismiss; and whether a class-action is a viable thing to pursue. There are new areas of discussion regarding standing, when a complaint is sufficient, statute of limitations, and mixed-motive jury instructions, and additional information on disparate treatment cases, class actions, jury selection, and Batson challenges. Expanded and new topics include: ADA as it relates to sports including the Office of Civil Rights guidance on § 504 of the Rehabilitation Act Utilizing negligence and negligence per se actions as an alternative to title III claims Highly detailed chapter on remedies and procedural issues Improved checklists and litigation forms.”

Finally, please enjoy the great article by Judge Randall Howe that we published in May. It reminds us how important advocacy is to progress. In the judge’s case, it was his mother who was driven for equity in her son’s education. For you? Well, everyone may have a different advocate.

Grady Gammage Jr.

The way we pick judges has all the makings of a yawner, right up there with shareholder voting rules and ski-lift instructions. And yet in Arizona and across the country, the topic is red hot.

This year, as in the past, the Arizona Legislature is considering some bills that would alter what many argue is the flagship method for judicial selection in the nation. As Morrison Institute executive director Sue Clark-Johnson said, “Arizona has been considered a model in the United States.”

In response to the possibility of Legislative action, the Morrison Institute at Arizona State University hosted a panel presentation on the topic on Tuesday, Feb. 22. (I previously posted some event photos at the Arizona Attorney Magazine Facebook page.)

Held at the ASU downtown Phoenix campus, the roundtable included:

  • State Senator Adam Driggs (R-11), a member of the Senate Judiciary Committee
  • Hon. Ruth V. McGregor, former Chief Justice, Arizona Supreme Court
  • Hon. Mary M. Schroeder, Judge, U.S. Court of Appeals for the ninth Circuit
  • Hon. William J. “Bill” O’Neil, former judge, Arizona Superior Court for Pinal County (and now the state’s Presiding Disciplinary Judge; we wrote about him in the January issue of AzAt)

The moderator was lawyer Grady Gammage Jr.

Former Arizona Chief Justice Ruth V. McGregor

The roundtable was great, as far as it went. But events like this come perilously close to the scenario of heartfelt preachers assaulting the ears of the choir: They tend to be slated from a particular point of view, which the audience shares. The only mystery is will there be catering?

Given that, how do you achieve a vibrant evening, one where the assembled learn something new and important about the topic?

Have a great moderator.

Props to all the panelists, but Grady Gammage did his job with elán. He poked, prodded and incited the four panelists. And although he pretty much agreed with them about everything, he spent the evening playing the role not of the agreeable piece of furniture—the death knell for a roundtable—but of the mildly disagreeable event interloper.

Mind you, when I say disagreeable, I heap the greatest of praise. For the moderator who plays devil’s advocate is the audience’s surest friend. His insistence on hard answers from speakers sharpened their presentations and made their positions crystal clear. It made them and their presentation look even better.

The evening opened with remarks by Sue Clark-Johnson and Dr. David R. Berman, an Institute research fellow. Berman gave a historic overview of the state’s merit selection process.

And then Gammage explained the political landscape that faces that process. In the current Legislative session, he said, there are currently 10 House Concurrent Resolutions (HCRs) and one House Resolution (HR) that would alter that process in some way.

  • Most of the proposals would add Senate confirmation.
  • Two would remove the State Bar of Arizona from the process.
  • One would change the length of judges’ terms.
  • One would retain Pinal County as a judicial election county (its growing population would otherwise automatically make it a merit-selection county).
  • One would require the Commission on Judicial Court Appointments to rank the nominees whose names it forwards to the Governor.
  • One would allow the Governor to add names of her choosing.
  • One would require Senate reconfirmation of judges.

Chief Justice McGregor was especially concerned about the Senate confirmation idea: “It seems intended to make the process more political, and nothing else.”

Sandra Day O'Connor makes a point at the roundtable discussion.

She continued, “When people say, ‘Judges are nothing but politicians in robes,’ that is wrong, and not the case in Arizona.”

Senator Driggs tried to give some insight into the thinking of his colleagues, especially in regard to the Senate confirmation idea.

“I think some may have visions of C-SPAN in their heads, a big vetting process [like U.S. Senate confirmation]. It’s a little bit of a fantasy, like all of a sudden everyone will be down there and paying attention.”

McGregor added what became a recurring theme of the evening—what exactly is broke that requires fixing?

“Most who have studied the Arizona merit-selection system say that it is the best. Even the U.S. Chamber of Commerce has said [to other states], ‘We don’t take a position, but if you have merit selection, follow Arizona.’”

Gammage got some laughs and raised eyebrows when he asked Judge O’Neil if Pinal County was resisting “becoming a grown-up county” and adopting merit-selection. O’Neil took issue with the question—not the “grown-up” moniker, but with the inference that residents wanted to keep judicial elections. He said that the majority of the county would like to be a merit-selection jurisdiction.

O’Neil added that in preparation for the move to merit-selection, the court there began performing trial-run internal reviews, which would become the norm under the new process. And in a county where the judges have always been elected, he said that “not all did that well.”

Judge Mary Schroeder shared more background about merit selection. She reminded everyone that Judge Thomas Tang, a respected jurist, was thrown out of his elected judgeship because of a single criminal case.

In response, “The business community got merit-selection passed in a referendum.”

She also was troubled by the seeming hostility toward any organized bar association. She recalled a previous battle over splitting the Ninth Circuit Court of Appeals. In testimony to Congress, Microsoft General Counsel Bill Neukom spoke in favor of the current Circuit. Many advised him to “play up” his Microsoft connection, and to downplay the fact that he was the President-Elect of the American Bar Association.

Gammage did not let the group off that easy, though. He urged them to discuss the ballot that contains “all those names” of judges standing for retention election.

“No one knows what to do with all those names. What an insulting process. If we agree that it is meaningless, and that it is not likely to have much impact, what is it for?”

“What is the effect on civic expectations,” he continued, “in what amounts to an essentially meaningless exercise? If the result is that 1 out of 50 gets marginal ratings, why send the names to the ballot at all?

Of course, panelists did not agree with his premise. But they did acknowledge that it creates a challenge for voters.

McGregor, Schroeder and O’Neil agreed that merit-selection’s very existence may serve to persuade those with more meager skills from seeking a judgeship in the first place. And that would mean those seeking to be retained would likely have high ratings

And Senator Driggs also spoke in favor of merit selection.

“I don’t care if someone is charismatic and goes to neighborhood picnics. I want them to know the Rules of Evidence.”

Finally, in the audience Q&A portion, a slight woman raised her hand and patiently waited her turn. When Gammage called on her, Sandra Day O’Connor, former Associate Justice of the U.S. Supreme Court, spoke loudly enough for everyone in the room to hear.

“I grew up on a ranch, and we followed the motto of, If it ain’t broke, don’t fix it. Well, it ain’t broke, and I don’t know what changes they’re going to implement.”