An Arizona House Bill that aims to limit judges’ power to sentence people convicted of prostitution charges involving minors will continue to the Senate.
HB2411 was expected to fail a reconsideration vote Thursday after loosing support earlier in the week but several legislators changed their minds last minute.
Currently, adults can serve multiple jail terms at the same time for charges stemming from a prostitution act involving a 15, 16, or 17 year old.
If signed into law, HB2411 will require all adults convicted of prostitution with minors to serve back-to-back jail terms for all charges, even those not relating to sex or violence such as drug possession and parole violations.
The HB2411 mandate could extend average prison terms in some cases by several decades.
A person can be charged with prostitution of a minor if they engaged in, attempted, or benefited from a sex act with a minor under 18 in exchange for value.
Sentences can range from 13 to 21 years for the first offense of prostitution with a minor at least 15 years old.
Despite comments by supporters on the Floor Thursday, HB2411 does not necessarily provide longer jail terms than those already in statute for offenders who have sex with small children.
Sex with children under age 12 can carry a life sentence under existing law regardless of HB2411.
“This is putting it back in place,” said Ed Farnsworth R-Gilbert, who sponsored the bill.
The mandate was inadvertently left out of the child-prostitution statute a year ago when the law was being updated he said.
Debates on whether to replace the mandate raised questions about the value of limiting a judge’s ability to weigh other factors when passing sentences.
“If we leave the law the way it is right now, the judges can still throw the book at the bad guys,” Cecil Ash R-Mesa said Feb. 23 during session. “To impose consecutive sentences ties judges’ hands and leads them to have to sentence people (to terms) they might sentence otherwise.”
Ash was a public defender and private defense attorney before running for office.
He has pushed current legislation calling for sentencing reform and to overhaul the state’s statutory prison requirements while Arizona’s prison population continues to grow disproportionately to other state’s similar its size.
He is concerned the threat of decades in jail will give prosecutors unfair leverage to compel innocent people to waive their right to a trial and take plea bargains with lesser charges and sentences.
He is worried the threat could be unfairly used to compel suspects to discuss other criminal investigations.
“They may be compelled to cooperate but they still have a right to go to trial,” Farnsworth retorted on the Floor last week. “If (suspects) want to spill their guts about other crimes, what’s wrong with that?”
Retired 22-year Maricopa County Superior Court Judge Ron Reinstein now serves as a legislative consultant for the Arizona Supreme Court.
“Judges would usually rather have discretion to sentence somebody to what they think is appropriate,” Reinstein said over the phone. “Prosecutors don’t want to give that discretion up and they hold the cards when there’s a mandatory prison term.”
Reinstein said the emphasis on mandatory sentencing in crimes against children and minors is much heavier than for adult victims, even for murder and rape which do not carry mandated consecutive terms.
“The legislature is clearly trying to send a message they want to cut down on child prostitution,” Reinstein said. “If (an additional charge) is a non sex-offense it really should depend on the person’s criminal history.”
Reinstein said he would generally support a consecutive sentence for multiple sex crimes, or in cases where there were multiple victims, but not for additional charges that might arise with minors but which were not directly sexual or violent.
Rep. Tom Chabin D-Flagstaff withdrew his support for HB2411 after listening to Ash’s objections.
“This (bill) raised my fears and prejudices against people who are deranged and have a compulsion for crimes against children,” he said over the phone. “(But) I think we should put our trust in the courts to make the right decision.”
Chabin, who said he had seen the damage of sex assault on children, said he believes there can be a difference between a person convicted of a single sex crime with a teenager and a person who has a compulsion to repeatedly molest teenagers or smaller children.
“I’m convinced there can be a distinction,” he said.
Ash referred generally to several cases in his career in which he felt his clients were sentenced to terms that he felt didn’t fit their crimes, even though judges recognized mitigating circumstances.
“People don’t know what the system’s like until they go through it,” Ash said. “There are plenty of not-guilty people in the jails.”
He said he believed most inmates in jail were guilty but the numbers indicate a problem.
“I’ve been reconsidering (HB2411) more than anyone,” Rep. Peggy Judd R-Southern Arizona said Thursday. “I now understand that ‘they’ originally intended the mandate so I change my vote to yes.”
Judd changed her mind twice and ultimately supported HB2411 during the reconsideration vote.
Kim MacEachern, a spokeswoman for the Arizona Prosecuting Attorney’s Advisory Council confirmed the mandate was left out last year accidentally but said she could not recall how it happened.
“Child prostitution is a pretty serious problem and consecutive sentences are necessary,” she said. “Children are the most vulnerable members of society.”
MacEachern’s agency supports Farnsworth’s HB2411 along with the Arizona Attorney General, Maricopa and Pima County Attorneys.
“We applaud Representative Farnsworth’s effort to give prosecutors the tools to go after people who prey on children,” Jerry Cobb, spokesman for the Maricopa County Attorney’s Office said.
Child prostitution is just one of several special prosecution sections of the MCAO’s Sex Crimes Bureau.
“It’s hard to talk generically about these cases because they all have very complicated circumstances,” Cobb said “We are constantly prosecuting these (child prostitution) cases.”
Both MacEachern and Cobb said their agencies oppose Rep. Ash’s pending legislation to establish a state sentencing commission of lawyers, judges, Supreme Court justices, Department of Corrections executives, and directors of other state agencies involved in the justice system to make recommendations for prison guidelines to the legislature.
The HB2411 debate followed the high profile February arrest of Sunflower Farmers Markets CEO Michael Gilliland who Phoenix Police said solicited sex with an undercover police agent on the internet who identified herself as a minor.
Gilliland pleaded not guilty in Maricopa County Superior Court.
Farnsworth did not return a morning call for a comment by the end of day Thursday.
Update Oct. 2012: HB2411 was signed into law. Read HB2411
Update Oct. 2012: Cecil Ash has left the Arizona Legislature and is now running for Justice of the Peace – an elected municipal judgeship – in north Mesa.
Update Oct. 2012: Gilliland plead guilty in 2012 to a lesser charge