Tucson’s Top Prosecutor Pulls Back From No-Minor-Drug-Charges Policy

March 23, 2022

In 2016, Barbara LaWall, then the elected prosecutor of Pima County (Tucson), published an op-ed in the Arizona Daily Star that was practically an invitation to find examples of injustice perpetrated by her office. She dismissed critics of mass incarceration by rattling off a list of non-violent crimes, including drug charges, and concluded “There’s nothing non-violent or victimless about these crimes.”

In 2020, Pima County elected a different Democrat, Laura Conover, who ran on a message of decarceration. But changing a local system so dedicated to dehumanizing people was not going to happen overnight.

She will resume filing minor drug charges, although people who are arrested will first be offered the pre-indictment STEPs drug court.

While County Attorney Conover attracted attention for hiring a person with robbery convictions as her communications director, the county court still uses denigrating language like “offender” in its press releases. And when Conover pledged in December 2021 to no longer prosecute minor drug charges in an attempt to keep people out of the COVID-19 addled jail, many area police departments ignored the message and booked people anyway. People were still being jailed before prosecutors could dismiss their charges.

That situation, according to Conover, led her to back away from her non-prosecution plan. Instead, her office announced on March 9, she would resume filing minor drug charges, although people who are arrested will first be offered the pre-indictment STEPs drug court.

“The jail population was at 1,671 on December 14, 2021⁠—the day of my memo⁠—and was at 1,673 as I draft this,” Conover wrote in a letter to local chiefs of police. “This isn’t an anomaly; this has been a consistent number for the jail population, as I watched it on a daily basis.”

The current debate over the role of locally elected prosecutors in curbing mass incarceration, fueled by right-wing critics like the Heritage Foundation, suggests that district attorneys and their equivalents can decriminalize or legalize behavior that the legislature says is a crime. But that is not quite true.

Justin Murray, a professor at New York Law School, is one of the leading academic experts on law enforcement discretion to not prosecute. His newest article explained that, regardless of what a DA writes in a policy briefing, criminalization continues so long as there is a criminal statute on the books. DA offices in large jurisdictions are massive bureaucracies, so the elected DA has limited ability to police deputy prosecutors’ adherence to a policy memo. And cops can still choose to make arrests based on an active statute that the locally elected DA has promised to not enforce, just like what happened in Tucson.

“The rationale Conover is offering here doesn’t add up.”

In the absence of either scenario, Murray wrote, criminal laws still contribute to stigmatization of behavior, even where those laws are not actively enforced.

“The rationale Conover is offering here doesn’t add up,” Murray told Filter of the situation in Tucson. “For one thing, if the problem is that the police are arresting people who shouldn’t be ensnared in the criminal justice system, the solution isn’t to charge them and deepen their system involvement; the solution is to cut them loose and give them back their freedom.”

“Second, she can’t declare the policy a failure simply because the overall jail population hasn’t changed much,” he continued. “Jail numbers get pulled this way and that for all kinds of reasons, and in cities all across the country we’re seeing those numbers increase as enforcement strategies revert to pre-COVID baselines; without more granular data, it’s entirely possible that her policy caused a significant decrease in the jail population but was overwhelmed by other, unrelated factors going the other way. Based on the data she has given us, we simply don’t know.”

In an interview with Conover, however, she revealed information that could complicate the analysis for many. According to her, an original non-prosecution policy for minor drug charges was quietly put in place by Barbara LaWall in 2020.

In partnership with the Pima County Attorney’s Office, Public Defense Services and County Administrator’s Office, the local drug court had pioneered what it called STEPs in mid-February of last year. STEPs is a pre-indictment program rather than a post-indictment program, and charges will not be sought when participants engage with wrap-around services for 30 days. Drug court systems of all kinds are nonetheless heavily criticized by harm reductionists for their coercive nature, among other problems.

Conover said that STEPs had been ready for launch “forever,” but that COVID-19 delayed it. When it was revealed in February 2021, she told police that if they decided to arrest, her office would move people straight into STEPs.

But over the next few months, the public health risk of people being brought to the jail in the first place became much worse. The Delta variant of the virus hit, then Tucson de-masked. That December, Conover broadened the declination policy with a new memo, causing both an emptying out of the program and statements from the superior court threatening to kill STEPs.

Conover said that she is not convinced that involving people in the system, even in STEPs, is necessarily going to be better. “But I want to try,” she told Filter. “STEPs is worth trying. I would like a full year, God willing, with a control group. Where does the overdose rate go? The jail population?”

Previously, data could only be collected on STEPs for about three to four months, Conover said.

Just Communities Arizona denounced Conover’s reversal as “both disappointing and puzzling.”

Still, Just Communities Arizona, a local advocacy organization, denounced Conover’s reversal as “both disappointing and puzzling.” The statement that organization issued reads, in part, that “just because law enforcement is in the wrong does not absolve the County Attorney from responsibility to continue doing the right thing.” It demands that the Board of Supervisors “step in and take measures” to hold police agencies accountable for disobeying Conover’s mandate.

General ignorance about elected local prosecutors and their authority arguably makes the county attorney’s office a good place to cultivate controversial but beneficial justice policies.

In 2017, the ACLU of Massachusetts polling showed that “half of the registered voters believe individual district attorneys have only a minor or insignificant impact on the functioning of the criminal justice system⁠—and almost half of voters (38 percent) did not know that district attorneys are elected and accountable only to voters.”

Thus, when lay people are freaking out about a policy proposal regarding the criminal-legal system, they usually call not their DA but the political officials virtually everyone knows about—such as mayors, city council members and state legislators.

This probably creates much of the tension between progressive DAs and other city officials, even in Democratic strongholds. After Dan Satterberg, the King County (Seattle metro area) prosecutor, announced his support for safe consumption sites, scores of city councils in the jurisdiction passed mandates to keep the sites out of their cities. When Philadelphia seemed poised to be the first city in the country with a safe consumption site, State Senator Anthony Williams, a Philly Democrat who ostensibly backs criminal justice reform, led the charge to make them explicitly illegal statewide. City councils are responsible for police budgets, which probably helps to explain why very few cities defunded the police, and the few that did brought the budgets right back up within a year.

Because city councils, mayors and legislators are more likely to be harassed by angry constituents who inadvertently (though sometimes deliberately) misunderstand complex policy proposals, they appear much more likely to run on and represent “not in my backyard” (NIMBY) interests.

“My sense here is that we are going to have to play the long game … until it’s embraced willingly instead of forced.”

If someone in Conover’s position does not continue the conversation about decriminalizing drug possession in Pima County, which other elected official will do so?

Conover acknowledged this, but said that coming up with a policy solution that is workable for everyone in the system is important, especially given the pandemic and overdose rates.

“My sense here is that we are going to have to play the long game and keep teaching it and training on it, until it’s embraced willingly instead of forced,” she said. “I think that can be more safely done post-pandemic, hopefully in a world where the overdose death rate goes way down, and we can do that more safely. I certainly feel like this is a sort of dangerous time to play chicken, in trying to force agencies to deflect who they never historically deflected.”

 


 

Photography of Tucson, Arizona by Dirk DBQ via Flickr/Creative Commons 2.0

Rory Fleming

Rory is a writer and licensed attorney. Previously, he ran Foglight Strategies, a campaign research services firm for forward-thinking prosecutors, and worked for the Law Enforcement Action Partnership, Harvard Law School Fair Punishment Project and the National Network for Safe Communications at the John Jay College of Criminal Justice. He lives in Philadelphia.

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