(Photo illustration by Elizabeth Brown. Photo from Getty Images.)

All three candidates said they would commit to reducing the Arizona prison population if elected, though their visions of the role of the county attorney’s office diverge.

As the chief prosecutor of the nation’s fourth most-populous county for nearly a decade, Bill Montgomery grew into a chief antagonist of criminal justice reform. He used his bully pulpit to sink legislative efforts to reduce sentences, and he directly implemented punitive policies as a prosecutor, even facing an ongoing federal civil rights lawsuit for his approach to marijuana use. 

Montgomery left the office last year when he was appointed to the state Supreme Court. But his carceral legacy looms over this year’s prosecutor’s race in Maricopa County, which is home to Phoenix and nearly 4.5 million residents.

Three Democratic candidates want to change the county’s harsh approach to charging and sentencing—but they vary in how significantly they want to break with the past. Whoever wins in the Aug. 4 primary will go on to face Montgomery’s Republican successor, Allister Adel, in the Nov. 3 general election.  

“The stakes couldn’t be higher,” said Lola Lévesque, a spokesperson for Mass Liberation Arizona, a group that seeks to end mass incarceration in a state that has one of the highest rates of incarceration in the country. “County attorney is one of the most powerful elected seats in the state. So for us, it really amounts to whether or not we can end mass incarceration. It’s one of the most influential seats to proving whether or not Black lives matter because ultimately, mass incarceration disproportionately impacts Black people.”

Democrats sense an opening to seize the office. The county was long a Republican stronghold, but it has shifted away from the GOP since President Trump’s emergence and is now poised to play an outsize role in deciding the presidential race. Voters there elected Democrats for county recorder and for sheriff in 2016, the first Democrats to win countywide races since 1988, and they helped swing a U.S. Senate seat to Democrats two years later.

The office’s punitive approach is longstanding. From 2005 to 2010, County Attorney Andrew Thomas encouraged prosecutors to seek the harshest possible sentences and implemented a policy, known as “plead to the lead,” that required people to plead guilty to the most severe charges against them in order to accept a plea deal. Thomas was later disbarred over findings that he had brought false charges against political opponents in an attempt to embarrass them.

Montgomery largely kept up Thomas’s policies from his arrival to the office in 2010 through his departure. The Maricopa County Board of Supervisors appointed Adel to fill the position. She is now running for a full term as a Republican and is facing no opponent in the GOP primary.

Though Adel has stated that she is “different from [her] predecessor,” many of her actions since becoming county attorney have belied that statement, from refusing to bring charges against the police officer who killed Antonio Arce, a 14-year-old who was shot in the back while holding a toy gun in January 2019, to filing DUI charges against a woman four years after the crime occurred. In her past as a prosecutor in the vehicular crimes unit, Adel sought to send a young man to prison for 71 years for causing a car accident that injured four people, a sentence she said she still stands by today.

Reducing the prison population

All three Democratic candidates—Julie Gunnigle, a former assistant state attorney in Cook County, Illinois; Will Knight, a former Maricopa County public defender; and Bob McWhirter, a former Maricopa County and federal public defender—have committed to reducing the prison population if elected. 

Gunnigle, Knight, and McWhirter say they would decline to prosecute minor marijuana cases. Although possession of any amount of marijuana in Arizona is a felony, a proposition passed in 1996 prevents people from being sent to prison for their first or second marijuana possession offense. Still, as of May, 126 people are incarcerated in the state for marijuana possession, and many others are diverted to the Treatment Assessment Screening Center—a program that is the subject of a federal civil rights lawsuit and has been called a money-making scheme that extorts the poor by threatening them with felony prosecution.

From there, exactly how the three candidates plan to reduce the flow of people into the prison system diverges. 

Knight and Gunnigle have both set ambitious goals to that end. Knight says he wants to reduce Maricopa County’s contribution to the state prison population by half. Gunnigle said in response to an ACLU candidate questionnaire that she wants to bring the incarceration rate down in line with the national average, which would represent roughly a 25 percent reduction. McWhirter has also said he wants to reduce the prison population, but he did not specify a target percentage. 

These topline differences are reflected in their underlying policies. Knight is the only candidate to say that he would decline to prosecute all personal drug possession cases, not just marijuana. As of May, nearly 3,600 people were incarcerated in Arizona’s prisons for drug possession. Drug possession cases alone account for 8.7 percent of the state’s prison population.

“Our courts are the least healthy way to treat people struggling with addiction, a medical issue,” Knight told The Appeal: Political Report via email, promising to help create non-criminal options that treat people instead of stigmatizing and othering them.

Gunnigle has also said she would decline to prosecute some categories of cases, though she did not include drug possession, preferring to steer them to diversion programs. She and Knight said they would not charge cases that are symptomatic of poverty, and they have mentioned some cases of trespassing and shoplifting as examples. Both also said they would decriminalize sex work.

McWhirter did not respond when the Political Report asked if he would decline to prosecute anything other than marijuana possession.

Even when it comes to cases they would prosecute, Gunnigle and Knight have committed to ending some of the office’s harshest charging and sentencing practices. 

Both candidates promised to end Thomas’s “plead to the lead” policy. Gunnigle told the Political Report that this is “an outdated policy that disproportionately impacts BIPOC and lower-income folks that don’t have the resources for cash bail,” a reference to the pressure people feel to plead when they are jailed pretrial. 

Gunnigle and Knight have both also said they would end the use of so-called Hannah priors, which allow people to be charged as repeat offenders based on multiple charges stemming from the same incident. (For example, if a person sold drugs to an undercover officer multiple times in the span of a week, they could be considered a repeat offender and get a longer sentence.) 

By contrast, McWhirter has only said he would change the “misuse” of Hannah priors. He did not respond when the Political Report asked about his views on the “plead to the lead” policy.

Knight also said he would also seek to reduce the prison population by not bringing up all past offenses when prosecuting cases, which leads to lengthy sentences.

Although the three Democratic candidates expressed a desire to limit the use of money bail, which keeps people incarcerated pretrial if they can’t afford to pay, only Gunnigle and Knight have indicated they support eliminating cash bail altogether. Bail decisions involve the broader court system, but prosecutors play a major role in issuing recommendations. Knight has also said he would create additional legal protections for people who may face “preventive detention” orders instead of financial conditions.

The role of the prosecutor’s office

Under Montgomery, the office’s predilection for harsh sentencing was so pronounced that it blocked reformers’ statewide efforts.

“The deeply entrenched culture of this tough-on-crime mentality has been so damaging over the years,” said Analise Ortiz, campaign strategist for the ACLU of Arizona’s Smart Justice campaign, which issued the county attorney candidate questionnaire. “The biggest change that any candidate could bring into this office is to start seeing it as a means of rehabilitating people, not punishment, and to rid this office of the mentality of vindictiveness that has been there for so long.”

At a January town hall, Gunnigle and McWhirter said they would use their position to lobby at the state legislature for criminal justice reform measures and against laws that would increase mass incarceration. Knight initially embraced a more cautious approach, but he told the Political Report this week that he has changed his view and now sees that he has an “obligation” to use the county attorney position to lobby for criminal justice reform. He stressed he would do so “ethically and transparently.” “So no back room deals, no letter to the governor asking for vetoes after promising to stay out of it,” he said.

Gunnigle, Knight, and McWhirter have said they would use the county attorney position to lobby for the elimination of mandatory minimums, a reform that some lawmakers have been pushing for.

Knight differs from the other candidates in his desire to shrink the prosecutor’s office and direct some of its duties outside the criminal legal system, an echo of the demands of the Black Lives Matter to reduce the scope of the criminal legal system. He has pledged to “reduce MCAO’s budget” and said “we need to stop using our criminal courts to solve our mental health crises, our substance use crises, the opioid epidemic, and our poverty situation.” 

Gunnigle told the Political Report that she would rather focus on shuffling the office’s priorities rather than reducing its size. In stark contrast with his opponents and with the goals of many reformers, McWhirter has said he would seek additional funding for the office, and during a town hall in early May he cautioned against pushing decarceral goals too far. “Let’s not forget what the job [of the county attorney] is,” he said.

“I think one of the big things we need to look at is the difference and the fine line between someone who says they are reform-minded but are actually not working to shrink the power of the office,” said Ortiz. “Whoever becomes county attorney needs to divest from the criminal legal system. … Crimes of poverty don’t need to enter the criminal legal system in the first place.”

The death penalty

When Montgomery ran the office, he sought the death penalty so frequently that the county ran out of specialized attorneys to defend people facing death sentences.

Of the three candidates, only Knight has promised not to seek the death penalty. In his questionnaire, McWhirter said although he personally opposes the death penalty and would advocate for its repeal in the legislature, it’s “the law and the Maricopa County Attorney is, unfortunately, bound.” Gunnigle said she does not support abolishing the death penalty because there may be “a need for public safety in the use for the rare most egregious and heinous of crimes.” 

Knight, on the other hand, called the death penalty “an irrevocable sanction, and there are few things more fundamentally un-American than executing an innocent person” and pointed out that, across the country, at least 165 people who have been sentenced to death since 1973 were later exonerated. He later promised not to seek the death penalty if elected, calling it “racist,” “colossally expensive,” and a “disservice to victims.”