Bad Proposed Public Records Policy in Arizona

If Arizona Legislators pass Senate Bill 1339 (2015), they would be sending mixed signals on public records.  The bill intends to weed out burdensome requests, by allowing public records custodians to claim the request “unduly burdensome” or “harassing.”

This is bad public policy – it is as simple as that.  This legislation undermines the principles of Arizona’s public records law and ignores the historical precedent set by the common law which barred unduly burdensome or harassing requests.

One of the reasons why public record laws exist is to give the government legitimacy.  The laws allow individuals to check up on the government and look for corruption, bad actors, etc.  The Arizona Legislature is obfuscating this common law right1  “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents.”  Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).   I recognize that there is a problem, but this is not the solution.

Sign for Suicide Lane in Phoenix, Arizona taken by AzCommonLaw
Sign for Suicide Lane in Phoenix, Arizona — taken by AzCommonLaw

Public records in Arizona are going to become like some of the street signs — indecipherable to passersby.  When things become muddled, usually is not a good thing.

Continue reading Bad Proposed Public Records Policy in Arizona

References   [ + ]

1.   “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents.”  Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).

Marijuana Sentencing Reform Proposed Legislation

Arizona is seventh in the United States for incarceration rates.  This means that 586 out of every 100,000 people are incarcerated in the state.1 Bureau of Justice Statistics, Imprisonment rate of sentenced prisoners under the jurisdiction of state or federal correctional authorities per 100,000 U.S. residents, Bjs.gov.   It comes out to 41,000 and change of inmates in the state’s prisons, in case you are wondering.  Marijuana sentencing reform can save the state money (investigations, prosecutions, and incarcerations), and increase the productivity of its citizens (individuals will have more chances to contribute to society when not in imprisoned).

Arizona ranks seventh for incarceration rate by state.2 Id. Only six states have a higher incarceration rate (play around with the graph below to see where the different states rank).

— Chart created by AzCommonLaw

While the incarceration rate in the state only rises over time.  This is in part because of the influx of people moving to the state over the years, but it is also attributable to the more harsh sentencing laws. It is unclear how many people in Arizona are incarcerated for marijuana offenses.

— Chart created by AzCommonLaw

Currently, there is a bill in front of the Arizona Legislature that would reform the sentencing laws in the state.  It seems to be a good solution socially and economically.

Continue reading Marijuana Sentencing Reform Proposed Legislation

References   [ + ]

1. Bureau of Justice Statistics, Imprisonment rate of sentenced prisoners under the jurisdiction of state or federal correctional authorities per 100,000 U.S. residents, Bjs.gov.
2. Id.

A Marshall Plan for Arizona

I think the state of Arizona needs to seriously consider the Marshall Plan while things are in a state of flux with the death penalty.

Both sides have agreed to a time out in the lawsuit seeking to make public Arizona’s execution protocols, theoretically giving the state some time to implement the Marshall Plan.  The agreed upon time out  is because changes in the State may or may not be afoot.  The Arizona Department of Corrections said they will review the death penalty procedures based upon the report on the botched execution of Joseph Wood.  Newly sworn-in Governor Doug Ducey could also play a role in releasing or obscuring death penalty protocols.

While waiting for the dust to settle on this important right to know issue, I want to delve into what the Marshall Plan is and why it could be impactful in the death penalty landscape.

Continue reading A Marshall Plan for Arizona

Article – Nonbinding Bondage

BDSM contracts … sigh, I never got to study these in law school.

Apparently, these non-legally binding agreements are used to layout the terms of a BDSM sexual relationship between two or more individuals.  Since I still not have read or watched 50 Shades of Grey and apparently do not get out enough to know about these contracts independently, I was not aware of these types of contracts until I read the article “Nonbinding Bondage” in the Harvard Law Review. To my credit I have watched the trailer to 50 Shades of Grey and analyzed it in a previous blog post through the lens of obscenity in movies, if that counts for anything.

These contracts are not legally enforceable because contracting for sex is generally against public policy.  A special problem with BDSM is determining where consent exists because otherwise it could be rape.1 See State v. Van, 688 NW 2d 600, 613-14 (Neb. 2004) (noting it can be difficult to differentiate where consent exists in BDSM even with prior writings outlining intents and roles because people can change their minds)   As in State v. Van2 State v. Van, 688 NW 2d 600 (Neb. 2004) the men sent hundreds of letters back and forth outlining what they wanted in their BDSM relationship.  However, the court had difficultly ultimately determining if there was consent during the sexual acts itself because one of the participants was saying ‘no’ when he said ‘yes’ in the exchanged letters.

Even with contracts, or extensive prior writings, as in the Van case, courts can still struggle with whether there is consent during the act.  In my opinion, this is one of the biggest hurdles to legitimizing BDSM.BDSM Sample Contract

Part of a BDSM Sample Contract

Even though presently BDSM contracts are not viewed with any legal backing, I could envision that possibly changing one day.  Some academics argue the concept of BDSM is becoming mainstream3 Margot D. Weiss, Mainstreaming Kink, Weslyann University, available at: http://wesscholar.wesleyan.edu/cgi/viewcontent.cgi?article=1046&context=div2facpubs&sei-redir=1&referer=http%3A%2F%2Fscholar.google.co.uk%2Fscholar%3Fhl%3Den%26q%3Dbdsm%26btnG%3D%26as_sdt%3D1%252C5%26as_sdtp%3D#search=%22bdsm%22. not only because of  50 Shades of Grey, but also due to its cinematic predecessor the Secretary (2002).

Perhaps with the ever “evolving standards of decency that mark the progress of a maturing society,”4 Furman v. Georgia,  408 US 238, 242 (1972) (Douglas, J. concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)   BDSM contracts may be legally binding one day in the future.

Until then the possibilities are fun to think about.

The rise of Fifty Shades of Grey, however, points to a sea change in attitudes toward BDSM. The erotic novel has not only exposed vast popular interest in “kinky sex” — so vast the adaptation is expected to become the biggest film of 2015 — but has raised the critical profile of BDSM, bringing commentators to look more closely at the practice and significance of such “transgressive” sex. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure. A mere handful of cases and articles address the legal questions posed by BDSM, and these generally confront the practice at its most extreme, asking whether “victims” can consent to violence. Acts, like those in Fifty Shades of Grey, involving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant.

If law has been slow to recognize mainstream BDSM, however, BDSM has not forgotten law. Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract. Lifestyle guides encourage the use of BDSM contracts, which employ contract forms to set limits and rules of play for BDSM sex. These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part of BDSM practice. Indeed, the contract’s popularity is evidenced by its very inclusion in Fifty Shades of Grey, as E L James not only references such an agreement but takes pages away from erotic play to depict the couple’s negotiations and to reprint in full the draft contract, complete with twenty-one different sets of terms and the parties’ enumerated objections and amendments.

Nonbinding Bondage, 128 Harv. L. Rev. 713 (2014).

References   [ + ]

1.  See State v. Van, 688 NW 2d 600, 613-14 (Neb. 2004) (noting it can be difficult to differentiate where consent exists in BDSM even with prior writings outlining intents and roles because people can change their minds)
2. State v. Van, 688 NW 2d 600 (Neb. 2004)
3. Margot D. Weiss, Mainstreaming Kink, Weslyann University, available at: http://wesscholar.wesleyan.edu/cgi/viewcontent.cgi?article=1046&context=div2facpubs&sei-redir=1&referer=http%3A%2F%2Fscholar.google.co.uk%2Fscholar%3Fhl%3Den%26q%3Dbdsm%26btnG%3D%26as_sdt%3D1%252C5%26as_sdtp%3D#search=%22bdsm%22.
4. Furman v. Georgia,  408 US 238, 242 (1972) (Douglas, J. concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)

Conflict of Interest in Prosecuting Police Misconduct

State level prosecutors are put in an interesting position when deciding whether or not to bring charges during police abuse cases.  Recently a discussion began on how police abuse cases are prosecuted, after a few high profile cases across the country where grand juries chose not to indict police officers for the deaths of unarmed individuals.

This is the second part in the series: Why I Marched On Downtown Phoenix For Police Reform.

Photo Taken by AzCommonLaw at the Rumain Brisbon protest.
Photo Taken by AzCommonLaw at the Rumain Brisbon protest.

There appears to be at least a public perception of a  conflict of interest when state level prosecutors1 County attorneys, district attorneys, states’ attorneys, etc. prosecute police officers for abuse claims.  A symbiosis occurs between prosecutors and police.  The Maricopa County Attorney’s Office on its website2 Frequently Asked Questions, I Feel Like A Crime is Being Committed, Maricopa County Attorneys Office, http://www.maricopacountyattorney.org/faq/ states the police generally perform the investigations then turn over their findings to the prosecutors.  It is this working relationship that creates a call, from some, for special prosecutors to prosecute alleged police abuse.3 Washington Post Editorial Board, Police Abuse Cases Need Special Prosecutors, available at: http://www.washingtonpost.com/opinions/police-abuse-cases-need-special-prosecutors/2014/12/06/fcf57e28-7cd6-11e4-b821-503cc7efed9e_story.html.

Continue reading Conflict of Interest in Prosecuting Police Misconduct

References   [ + ]

1. County attorneys, district attorneys, states’ attorneys, etc.
2. Frequently Asked Questions, I Feel Like A Crime is Being Committed, Maricopa County Attorneys Office, http://www.maricopacountyattorney.org/faq/
3. Washington Post Editorial Board, Police Abuse Cases Need Special Prosecutors, available at: http://www.washingtonpost.com/opinions/police-abuse-cases-need-special-prosecutors/2014/12/06/fcf57e28-7cd6-11e4-b821-503cc7efed9e_story.html.

Why I Marched on Downtown Phoenix for Police Reform

A week ago, I found myself joining the march into downtown Phoenix to protest excessive force used by law enforcement.  The date of the protest I attended, marked one week since a Phoenix Police officer shot and killed unarmed Rumain Brisbon.

For me, Mr. Brisbon was the catalyst of the march —  but the problem is so much bigger than that one tragic incident.  It is about a systemic problem that encompasses both law enforcement and prosecutorial agencies.  The problem is that of excessive force by law enforcement and how the criminal justice system deals with it.

Photo Taken by AzCommonLaw
Photo Taken by AzCommonLaw at the Rumain Brisbon protest.

I believe people are good-natured.  I believe people are civilly-minded.  I believe that abuse against police and from police is wrong.  The question is what can be done?

This post is the first in what I hope will be a series, identifying problems and making suggestions in our criminal justice system.  Here I talk about the Broken Windows theory.

Continue reading Why I Marched on Downtown Phoenix for Police Reform

Arizona Case Studies of Possible Excessive Force

Both Phoenix and Arizona are not immune from allegations of excessive force by local law enforcement. Two very different situations this week are illustrating the problems communities are having with identifying and dealing with excessive force.

There is not enough information whether either of these situations involved excessive force.  I am not taking a stance either way until more information is known.  However, excessive force is a problem and one that I have addressed before on this website.1 Joe Thomas, What is Excessive Force in Arizona, AzCommonLaw, http://azcommonlaw.com/2014/08/excessive-force-arizona/; Joe Thomas, Phoenix Police Kill During Mental Health Call, AzCommonLaw, http://azcommonlaw.com/2014/08/phoenix-police-kill-during-mental-health-call/.   This article is a continuation of the discussion of what is appropriate force.

Phoenix Police
A picture of Phoenix Police at a First Friday art walk in the Arts District. Photo taken by AzCommonLaw.

Continue reading Arizona Case Studies of Possible Excessive Force

References   [ + ]

1. Joe Thomas, What is Excessive Force in Arizona, AzCommonLaw, http://azcommonlaw.com/2014/08/excessive-force-arizona/; Joe Thomas, Phoenix Police Kill During Mental Health Call, AzCommonLaw, http://azcommonlaw.com/2014/08/phoenix-police-kill-during-mental-health-call/.

Article – The Attorney General Veto

Can the state Attorney General  just decide not to defend a state law?  It has been happening with increased regularity recently.  Just here in Arizona there are a few instances where Attorney Generals refused to defend state laws.

In 2010 Arizona Attorney General Terry Goddard refused to defend the state’s immigration laws resulting in a spat with Gov. Jan Brewer.1 Arizona Attorney General Says He Won’t Defend State’s Immigration Law, Fox News, http://www.foxnews.com/politics/2010/06/18/arizona-attorney-general-says-wont-defend-states-immigration-law/ (last accessed Dec. 4, 2014) This year, current Arizona Attorney General Tom Horne received criticism to defend through the appellate process Arizona’s ban on gay marriage.2 Attorney General Horne Refuses to Defend Marriage in Arizona, AZ Conservative, http://azconservative.org/2014/08/18/attorney-general-horne-refuses-to-defend-marriage-in-arizona/ (last accessed Dec. 4, 2014)

The United States Attorney General Eric Holder even chimed in on the subject.  Mr. Holder said in an interview with the New York Times, “when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it.”3 Matt Apuzzo, Holder Sees Way to Curb Bans on Gay Marriage, New York Times, http://www.nytimes.com/2014/02/25/us/holder-says-state-attorneys-general-dont-have-to-defend-gay-marriage-bans.html?hp (last accessed Dec. 4, 2014)   In other words, if core constitutional issues are involved, a state Attorney General should use discretion when defending the law.

It should be noted that United States Attorney General Eric Holder followed President Obama’s wishes and did not defend the Defense of Marriage Act (DOMA), a federal law.

This issue is starting to pop up more and more.  It is not just legal theory anymore if Attorney Generals should use their discretion when deciding to defend a law or not.  It is very real, and can have lasting impacts.

The rise in such “refusals to defend” has sparked academic discussion about the (often conflicting)
dual roles of state attorneys general as popularly elected representatives and legal experts sworn to follow constitutional mandates. But fundamental questions remain unaddressed: In what cases could the
Hollingsworth scenario—in which an attorney general declines to defend a statute and no one is able to intervene in its defense—be repeated? Are only initiatives at risk, or could statutes enacted by  legislatures be invalidated as well? By delineating the potential universe of statutes that could be invalidated in this manner, this Note seeks to explain how this “attorney general veto” operates in practice.

— Jeremy R. Girton, The Attorney General Veto, 114 Colum. L. Rev. 1783.

 

 

References   [ + ]

1. Arizona Attorney General Says He Won’t Defend State’s Immigration Law, Fox News, http://www.foxnews.com/politics/2010/06/18/arizona-attorney-general-says-wont-defend-states-immigration-law/ (last accessed Dec. 4, 2014)
2. Attorney General Horne Refuses to Defend Marriage in Arizona, AZ Conservative, http://azconservative.org/2014/08/18/attorney-general-horne-refuses-to-defend-marriage-in-arizona/ (last accessed Dec. 4, 2014)
3. Matt Apuzzo, Holder Sees Way to Curb Bans on Gay Marriage, New York Times, http://www.nytimes.com/2014/02/25/us/holder-says-state-attorneys-general-dont-have-to-defend-gay-marriage-bans.html?hp (last accessed Dec. 4, 2014)

Arizona Prison Statistics 2014

The incarceration rates for the state of Arizona are well documented by the state Department of Corrections (ADOC) on their website.  The information is updated regularly and available to the public.

I hope to make this at least an annual article – Arizona Prison Statistics.  I think it is interesting to see how the composition changes over time.

Available in a spreadsheet format from ADOC, I thought I would bring the information to life by putting it in some charts, hopefully making it more digestible.  The numbers in this article are taken straight from the ADOC Confined Population Fact Sheet 2014. Confined Population Fact Sheet 2014, Arizona Department of Corrections, https://corrections.az.gov/sites/default/files/REPORTS/Inmate_Population/063014_inmatepopulationfactsheet.pdf.

At the end of the fiscal year the combined confined population in Arizona prisons was 41,773.  Id.   This is the baseline that will be used for the charts and graphs in this article — the numbers for each chart or graph should add up to our baseline number.

Incarceration by Gender

Male – 37,926

Female – 3,811

Total – 41,773

Continue reading Arizona Prison Statistics 2014

Remember to Give to Arizona Legal Orgs

With Thanksgiving just a few short days away this is the season of giving.  There are many, many great non-profits out there to give to that do tremendous work right here in Arizona and are in need of donations.

No matter the cause they fight for our rights, liberties, and values.  This can be free speech rights, labor rights, gun rights, privacy rights, religious freedoms, equality rights, etc.  The law affects every single one of us and we as Americans cherish our rights under the law.  Legal non-profits often times are the ones who stand up for the rights we hold sacred.

Since this is a blog that analyzes the law in Arizona, I thought I would share three legal non-profits who need donations.

 Arizona Justice Project

http://www.azjusticeproject.org/

The Arizona Justice Project is an amazing organization filled with people are seeking out justice.  The organization examines claims of innocence and manifest injustice, and provides legal representation for inmates believed to have been failed by the criminal justice system.  This is one of the few organizations in the United States where they provide legal assistance in cases of manifest injustice.  A manifest injustice is an unfairness that shocks the conscious.

Our legal system is not perfect.  The Justice Project works to correct some of the mistakes that have occurred for whatever the reason.

Arizona Capital Representation Project

http://azcapitalproject.org/

This is a non-profit that flies under the radar a bit, perhaps because of the political climate of Arizona.  That is unfortunate.  This organization assists indigent persons facing the death penalty in Arizona through direct representation, consulting services, training and education.  Everyone deserves representation, and good representation, especially when lives are on the line like in death penalty cases.

The Arizona Capital Representation Project does some amazing work!

Goldwater Institute

http://goldwaterinstitute.org/

This is a non-profit whose views I do not always agree with, but I deeply respect their work.  The organization provides a much needed check on government.  Unlike most other legal non-profits, this organization works on a whole host of issues: free speech, state government rights, government fiscal responsibility, etc.

Goldwater Institute provides a very valuable legal service by watching the government, making their actions more transparent, and holding them accountable.

There are many more legal non-profits than the ones I listed.  They all need help to continue doing the work they do.  Please contribute to them any way that you can, so they can continue to stand up for all of our rights.