Editor’s Note: This story has been updated to remove the name of the main subject, who completed his prison sentence for this case in September 2023.
Four years ago, B.S. failed to return a rental car on time. Police and prosecutors in Maricopa County responded with full force, arresting him for seven felony charges, tracking his cell phone location data, and seeking the harshest sentence possible for his crimes. Ever since he was shot through the neck on Thanksgiving Day in 2001, B.S. has had difficulty breathing. Now, in the midst of a global pandemic of a disease that attacks the respiratory system, the 61-year-old barber is set to spend the next eight years of his life in prison.
The COVID-19 pandemic has added renewed urgency to conversations about harsh sentencing practices. It has also sparked calls to release people, particularly nonviolent drug offenders, from prisons, where both the infection rate and death rate are significantly higher than that of the general population. The 15 largest clusters of coronavirus cases in the United States are in prisons and jails. At the same time, a series of police killings across the country has galvanized demands to divest from police departments, giving new life to questions about whether aggressive policing actually makes communities safer.
B.S. has struggled with substance use for decades, and he’s been saddled with a long criminal record for drug possession and petty theft as a result—something that prosecutors leveraged against him during plea negotiations.
“This man has had this whole life of just being in and out of jail for these crimes,” said Matt Sutton, director of media relations for the Drug Policy Alliance, an organization that works to advance policies that reduce the harms of drug use and drug prohibition. “He could have had a very full life, and instead it’s been one where the system has had him under its thumb his whole life. … Treating one health condition with something that’s gonna be far more detrimental to someone’s health is not the answer.”
Arizona has harsh drug laws—possession of any amount of marijuana can be charged as a felony—and one of the highest incarceration rates in the country. Of the roughly 40,000 people imprisoned in the state, about 20 percent are locked up on drug charges.
And the Maricopa County Attorney’s Office, which is responsible for prosecuting B.S., has a legacy of particularly punitive practices. In the mid-2000s, former County Attorney Andrew Thomas implemented a policy known as “plead to the lead,” which required people to plead guilty to the most severe charges against them in order to accept a plea deal. A recent report from the American Civil Liberties Union of Arizona found that Black and Latinx people prosecuted by the Maricopa County Attorney’s Office face longer sentences and higher fines than white people prosecuted for the same crimes, and that white people’s cases are more likely to be dismissed.
B.S.’s prosecution began under Bill Montgomery, who resigned in 2019, but continued under Allister Adel, who was appointed to replace him and is running for election in November. Adel has said she is “different from [her] predecessor,” who had a reputation for fighting criminal justice reform and encouraging prosecutors to be as punitive as possible. Yet since she’s been in office, Adel has filed DUI charges, four years after the crime occurred, against a woman who had since turned her life around. And she recently said she stands by the 71-year sentence she sought against a young man accused of causing a car accident that injured four people.
Adel said in December she might review cases of overcharging in her office if she was made aware of them. The Appeal asked the Maricopa County Attorney’s Office to explain why it finds an eight-year sentence to be fair and reasonable in this case, and whether it might fit the criteria of overcharging. The office declined to comment on the case.
On July 11, 2016, Scottsdale police officer Darren Hyman received a tip from a “concerned citizen”: a photo of a Black man with a white woman. According to a police report written by Hyman, the anonymous tipster alleged there may be some “criminal activity” related to prostitution or drugs occuring at the location where the photograph was taken, and provided police with the license plate of the pair’s vehicle, a white Dodge Challenger. (Asked why police began investigating B.S. in the first place, Scottsdale police said the tip came from a neighbor, not a confidential informant.)
Hyman ran the plates and found that the vehicle was being rented by B.S., the man in the photograph. The car was due back on July 5, so police began surveilling him.
On July 14, Scottsdale police called the rental car company to ask whether B.S. had returned the Challenger. The following day, police watched B.S. as he rode a bicycle around Phoenix, about 20 minutes southwest of Scottsdale. Notes from the rental car company show that Hyman called them three times in the span of a week. “They were willing to be a victim” and the car “eventually got listed as stolen,” Hyman said when asked about the case in court years later.
By the time the car was reported as stolen to the Phoenix Police Department, B.S. owed the rental car company nearly $2,000. He had left his credit card on file and had read the company’s rental policies online to see how long he could keep a car. The rental agreement B.S. signed stated that he would be charged a $59 per day late fee.
“They said if you kept it later, there’d be a fee charge to extend it out past your agreement time,” B.S. told The Appeal. “So that’s what I was thinking the whole time—that I had 30 days to return it and so long as I paid the late fees, I’d be fine.”
But on Aug. 3, police found a white woman in possession of the car when they arrested her for shoplifting at a Target in Tempe. It’s unclear whether she is the same woman who was photographed with B.S. the previous month. In a jailhouse interview with the woman, Scottsdale and Tempe police officers repeatedly asked if she had ever had sex with B.S., body camera footage shows, and if she had ever gone anywhere with B.S. explicitly for the purposes of soliciting sex. She said she hadn’t. The woman was charged with shoplifting and possession of drug paraphernalia, to which she pleaded guilty. No charges related to the rental car or prostitution were filed against her.
Though police recovered the rental car when they arrested the woman, they continued to go after B.S. On the night of Aug. 14, after surveilling him for several days, Scottsdale police surrounded B.S. at a 7-Eleven parking lot and placed him under arrest. They patted him down and found .13 grams of crack and 4.6 grams of heroin. For comparison, a teaspoon-size rock of crack cocaine would weigh roughly 50 times more than the amount found on B.S.
B.S., then 57, was arrested on five felony counts: theft of means of transportation, unlawful failure to return rented property, possession of drug paraphernalia, and two counts of possession of narcotic drugs.
Since he was the victim of a violent crime in 2001, B.S. has struggled with chronic pain, chronic respiratory problems, and post-traumatic stress disorder. On his way home from Thanksgiving dinner at his then-girlfriend’s house, he was shot 10 times. The bullets blew out his larynx and his airway. Reconstructive surgeries have repaired some of the damage, but the incident has left him with a restricted airway and mental health issues.
For years after his arrest over the rental car, B.S. fought the charges against him while out on bond. In February 2019, facing serious health issues, he was admitted to a psychiatric unit at a local hospital and diagnosed with anxiety, depression, suicidal ideation, and hallucinations.
In July 2019, B.S. filed an application to set aside his conviction for a narcotic drug violation from 2011. He and a friend filled out the paperwork on their own, without the assistance of B.S.’s public defender, and made several mistakes on the form. Asked whether he had any pending court fees for the case he was trying to set aside, B.S. checked both yes and no because he didn’t know the answer. He said it was his first felony conviction because he believed his prior convictions in California had been reduced to misdemeanors. And he said he did not have active warrants because an online search for any warrants under his name turned up no results.
But police and prosecutors alleged B.S.’s error-riddled paperwork was willful deception, not an honest mistake. On Sept. 13, 2019, Maricopa County Superior Court approved a search warrant from Scottsdale police authorizing officers to collect precision location data from B.S.’s cell phone, stating that probable cause exists to believe B.S. committed perjury. The warrant also allowed police to track B.S.’s phone location data and call records in order to identify any “co-conspirators” or “patterns of criminal activity.”
Scottsdale police did not respond when asked why they thought it was necessary to get a warrant to collect data from B.S.’s phone for perjury charges, and instead directed The Appeal to a police report detailing the investigation into B.S.
On Sept. 18, Scottsdale police arrested B.S. again, this time for perjury and forgery, both Class 4 felonies. Police alleged that he had “submitted false information” regarding the status of his prior convictions and active warrants. Since B.S. was accused of committing another felony while out on bond for the 2016 case, the court determined that B.S. was not eligible for release and could not be bailed out. He’s been in jail ever since.
The prosecutors in B.S.’s case, Tessa Hustead and Stephen Walker, have taken numerous actions to ensure that he can receive the harshest sentence possible for his crimes. In both the 2016 car rental case and the 2019 perjury case, they filed motions that alleged over a dozen aggravating circumstances (which enhance the penalties if convicted) and brought up all of B.S.’s prior convictions, which also permits prosecutors to seek a longer sentence. In 2016, Walker also filed a motion alleging that because B.S. had three previous drug convictions, he is ineligible for probation.
In June, as the case against B.S. neared trial, Hustead filed motions to exclude certain evidence at trial. Hustead asked the court not to permit: any reference to B.S.’s potential punishment (including saying he is facing a long sentence or a 12-year sentence), any reference to B.S.’s physical and mental health issues, any reference to the fact that B.S. was shot and subsequently hospitalized and diagnosed with PTSD, and any argument that B.S. had committed “minor crimes” or a possessed only a “small amount” of cocaine.
Hustead even asked the judge to “preclude any and all mention of George Floyd, Dion Johnson, Breonna Taylor, and/or any other person shot by police officers,” arguing that references to racial injustice “have no place in the Defendant’s trial.”
As the trial date drew closer, B.S. struggled to find an attorney who he believed would fight for him at trial. A private attorney his mother had hired withdrew, saying she had never been paid. Family members said a new public defender assigned to the case just weeks before the trial seemed woefully unprepared. Then the pandemic postponed everything. By June, facing the threat of a far longer sentence at trial, B.S. was convinced to take a plea deal. He pleaded guilty to unlawful failure to return rented property, possession of narcotic drugs, and perjury.
Under the agreement, B.S. is set to be sentenced to a total of eight years in prison on Sept. 25. He would have been sentenced sooner, but he has been under quarantine for the last month as coronavirus cases surged in Maricopa County jails.
“[B.S.] has taken a plea that I know he will not be able to mentally and physically handle,” B.S.’s mother, Kathaleen, wrote to the judge in July. “He has an addiction that he has tried to overcome many times, once succeeding for over ten years. I beg you to have mercy on my son, B.S., and reconsider the 8 year sentence.”
B.S. grew up in Long Beach, California, and was raised in a loving family with a hard-working father. But, he said, he got caught up partying in the ’80s and made some bad choices.
In 1988, he was convicted of commercial burglary and grand theft auto. In the commercial burglary case, court records show that B.S. was accused of walking into a store, putting two pairs of slacks in his pants, and walking out. In the grand theft auto case, someone had left their car running with the keys in the ignition on the street. B.S.’s friend got behind the wheel of the car, and B.S. got in the passenger side. The car was missing for roughly an hour before cops pulled the pair over and arrested them.
The following year, while he was on probation for those crimes, he incurred a charge that would mark him in the legal system as a “civil narcotics addict” and lead him to spend the next four years under the supervision of the department of corrections.
Court records show that one night in Long Beach, a plainclothes police officer approached B.S. and asked if he could get a “twenty-dollar rock.” After some hesitation, B.S. went into an apartment across the street and emerged with “a piece of torn brown paper similar to a grocery bag, which contained some off-white rocks,” records show. The officer said he didn’t believe it was cocaine, and B.S. walked away and threw the rocks into the road. (Tests later showed that the rocks “contained no illegal substances whatsoever.”)
He was charged with selling material in lieu of a controlled substance, a felony, and admitted as a “civil narcotics addict” to the California Rehabilitation Center under the California Department of Corrections and Rehabilitation. B.S. said he was still technically incarcerated, as the program was run on state property and he was not permitted to leave. But even when he completed the program, B.S. struggled to meet all the conditions placed on him after he was discharged, and failed to check in with the officers supervising him once he was released.
So from 1989 to 1993, B.S. was paroled, then returned to outpatient supervision under the department of corrections over and over, until finally, in June 1993, he was discharged from his sentence—but not for completing the program successfully. The reason for his release was listed as “civil addict, not amenable to treatment.”
In the decades that followed, B.S. continued to cycle in and out of prison, all for drug possession or petty theft. First, he’d get caught on a minor charge, like taking pants, a shirt, and a hat from Sears around Christmastime, or taking a $60 jacket from Gap. Then, the judge would sentence B.S. to probation or a residential treatment program. But eventually, he’d find himself unable to meet the terms of his program, whether that was checking in with an officer regularly or taking urine tests or staying off all substances, including alcohol, and he’d end up sentenced to prison instead.
B.S.’s early arrests did nothing to resolve his reliance on substances, though they did leave him with a criminal record and all the collateral consequences that come with it. B.S. spent most of the 1990s and early 2000s removed from his community and support structures, imprisoned for mostly victimless crimes, and saddled with a record that made it more difficult to obtain jobs and housing.
Decriminalization supporters like Sutton of the Drug Policy Alliance say treating substance use as a health problem—and offering services and treatment options that don’t come with the threat of incarceration—would lead to better outcomes than sending people to prison for possessing drugs or failing to complete a treatment program without a misstep.
Since 2012, 11 states have legalized recreational marijuana. Last year, Denver became the first city in the country to decriminalize magic mushrooms. Now, a ballot initiative could make Oregon the first state to decriminalize possession of drugs for personal use. The initiative, backed by the Drug Policy Alliance, would also use marijuana tax revenue to expand access to treatment, harm reduction, and recovery services.
A handful of states have inched toward some drug decriminalization in recent years, but nearly half a million people are incarcerated for nonviolent drug offenses in the United States, and over one million people are arrested for drug possession every year.
“Drug use never belongs under the criminal justice umbrella to begin with. It should have always been a health issue,” Sutton said. “We’ve really done a disservice to people that are struggling with drug use, because we’re trying to treat them with something that doesn’t work. It’s like trying to send someone with cancer to Disney World. We’re not fixing the problem. We’re making things worse. And we’ve created this huge system of mass criminalization and mass incarceration.”
In 2006, B.S. moved to Arizona to be closer to his family. A few years later, in 2010, B.S. opened a barbershop called Cuttin’ Up and worked with high schools to hire at-risk youth as apprentices. He also worked with the Salvation Army to provide free haircuts to people struggling with homelessness.
In April, B.S.’s father died. His public defender filed a motion to permit B.S. to attend the funeral and grieve with his family, and noted that B.S. is in a high-risk group for exposure to COVID-19 because of his age and restricted airway.
But prosecutors objected, saying that the pandemic “does not justify” B.S.’s release.
“There is no emergency in the county jail,” Hustead argued, saying that B.S. “is likely safer in custody than if he were released.”
The judge agreed, and ordered B.S. to remain in custody. He was not permitted to attend his father’s funeral. In the months since, coronavirus cases have skyrocketed in Maricopa County jails, prompting the ACLU to sue the sheriff’s office over the conditions in the jails. There are roughly 5,000 people in Maricopa County jails, and over 1,000 of them have contracted coronavirus in the last several months.
“It’s all a nightmare,” B.S. told The Appeal. “At this stage in my life, at 61, it’s almost a life sentence. And to bring up situations in the 1980s that I dealt with to crucify me. … I lost my dad since I’ve been in here. My mother is 80 years old. It’s scary. You never want to lose a parent while you’re in here.”