In this Arizona county with over one million residents, two career prosecutors are facing off against a former public defender in the Aug. 4 Democratic primary, which will decide the election.
Update (Aug. 4): Laura Conover prevailed in this primary election.
The prosecutor’s office in Pima County, home to Tucson and over one million residents, is sure to change hands this year. Whether that coincides with policies more amenable to criminal justice reform remains to be seen.
Barbara LaWall, who has run the powerful county attorney’s office and its $40 million budget for nearly 25 years, is stepping down. Three Democrats, and no other candidates, are running to replace her, so the Aug. 4 Democratic primary will decide her successor.
During her 24 years in office, LaWall helped fill state prisons with punitive practices toward substance use and sentencing; she also fought legislative efforts to reduce the state’s harsh sentencing statutes. Last summer, for instance, she joined the Republican county attorney in Maricopa County (Phoenix) to successfully urge the state’s GOP governor to veto a bipartisan reform that would have prevented prosecutors from alleging “Hannah priors”—a practice unique to the state in which prosecutors are allowed to charge people as “repeat offenders” if their indictment includes multiple charges, even if they have never been convicted of anything in the past.
Some meaningful policy differences have emerged among the three candidates who are attempting to replace LaWall, and at least two are voicing support for upending some of her approach. Still, none of them are making the sort of bold commitments to shrink the scope of criminal justice seen in other prosecutor elections, including in neighboring Maricopa County.
Instead, the most significant contrast between them may be their professional backgrounds, and how their past activities shape their credibility to change Pima County’s culture.
Two of the candidates, Mark Diebolt and Jonathan Mosher, are longtime deputy prosecutors in Pima County. Diebolt has been a deputy county attorney for 23 years. Mosher is currently the chief criminal deputy in LaWall’s office.
Laura Conover, the third candidate, is a criminal defense attorney and former public defender. She told The Appeal: Political Report that the fact that she has not prosecuted a case in LaWall’s office “is my strength, not my weakness,” since “they need a person from outside to shift that culture.” Some progressives around the country are making a similar case that achieving criminal justice reform requires electing people without a prosecutor’s background.
Indeed, aspects of Diebolt and Mosher’s records in the county attorney’s office have drawn rebuke, or sparked worries among some local proponents of reform.
Diebolt has received multiple reprimands while at the county attorney’s office, including for not disclosing exculpatory evidence and for failing to respond to motions by defense counsel. He did not answer repeated requests for comment from the Political Report. His website mixes some support for diversion programs with conventional tough-on-crime rhetoric promising to “go after the worst of the worst.”
Mosher, meanwhile, is making some commitments that conflict with past decisions he has made, and with the policies of LaWall, who has endorsed him.
He has pledged not to seek the death penalty if elected, but he signed a death notice in a case as recently as February 2019. He says that he supports assigning special prosecutors to investigate police use-of-force cases, but he was the chief criminal deputy when a Pima County sheriff’s deputy was not criminally charged for body slamming a teenager with no arms or legs at a group home in November. A spokesperson for Mosher told the Political Report that Mosher had taken a leave of absence to run for office by the time the decision not to file charges was made, though he was still at work during the first few months of the investigation. Mosher says he would greatly expand deflection and diversion programs for drug possession cases, and points out that he used to struggle with addiction himself, but for years he has held a leadership role in an office that filed a thousands of felony cases last year for drug offenses (nearly three-fourths of those involved less than two grams).
Mosher told the Political Report that he would lobby for criminal justice reforms if elected, as did Conover.
An analysis of the candidates’ policy positions, and phone interviews with Conover and Mosher, also unearthed contrasts in their stated goals. (Diebolt did not reply to requests to elaborate on his views.)
Decriminalization and drug crimes
The Pima County Attorney’s Office has a history of being especially punitive when it comes to drug-related crimes. Drug cases have been the most common type of felony charge in the county for 14 out of the last 17 years, according to the public defender’s office.
All three candidates have said they would not prosecute people for personal possession of marijuana, and all three talk of expanding diversion and deflection programs as a way to keep people struggling with substance use out of prison. However, none of the candidates indicated another type of drug charge they would decline to prosecute.
Conover talks less about reducing the prison population or about reducing the scope of things that are criminalized than about shifting the priorities of the office.
“We will be reframing that $40 million budget so we are going after those who are harming our community, which is going to move us away from all this low-level, victimless stuff,” she told the Political Report. She mentioned drug paraphernalia as an example of a charge her office “won’t be prioritizing.” When asked what she meant, Conover explained that her office would still be bringing charges for such offenses, but would steer defendants “toward social services and out of the criminal justice system.”
Conover uses similar language when asked about decriminalizing behaviors besides substance use. For example, she said that prosecuting sex work would not be a high priority for her office. “Consensual adults, we are not spending resources on that under my watch,” she said.
Some other candidates who have run for prosecutor on a progressive platform have taken more clear-cut commitments to not prosecute sex work, or drug possession up to a certain quantity. “Our courts are the least healthy way to treat people struggling with addiction, a medical issue,” Will Knight, who is running in Maricopa County, told the Political Report three weeks ago.
Mosher also did not say he would decline to prosecute any charges other than marijuana possession, and he has raised concerns about the safety implications of going further in decriminalization, stating for instance that that the county still “must protect our children from drug sales and drug use, and we must protect our roadways from impaired drivers.” He has said that he wants to expand diversion and treatment opportunities for people arrested for drug possession, and also for other offenses that stem from poverty such as loitering, to avoid incarceration.
“I have already begun working to develop a new pre-indictment drug diversion program for those arrested on felony drug possession charges,” Mosher said in an ACLU questionnaire. “This would allow arrestees to avoid ever being indicted and charged with a felony crime, creating an earlier exit from the criminal justice system than is available under the current Felony Drug Diversion Program.” Mosher told Political Report that there would be no fee to participate in the pre-charge diversion program for people arrested on felony drug possession charges, and that he expected “at least 1,600 and perhaps as many as 2,000 participants per year, depending upon the numbers of arrests for drug possession made by law enforcement officers.”
Neither Conover nor Mosher ruled out prosecuting overdose deaths as homicides, a punitive reaction to the overdose crisis that public health advocates decry but LaWall has used.
As county attorney, LaWall lobbied against efforts to curb mandatory minimum sentences and to limit other practices that lead to especially harsh sentences.
Earlier this year, she filed a lawsuit challenging a ballot initiative that would give judges greater discretion in sentencing, expand opportunities for early release to some prisoners, and end the use of “Hannah” priors, which allow prosecutors to charge people who have never been convicted of a felony as repeat offenders.
Mosher has distanced himself from LaWall on expanding early release. He supports the Second Chance Initiative, and says he even circulated petitions to help get it on the ballot. (Conover supports it as well.)
More broadly, Mosher and Conover both told the Political Report they would use their position to lobby for such criminal justice reform measures at the legislature, flipping LaWall’s history of using the office to push against them.
When asked what steps they would take as prosecutors to reduce very long sentences, Conover and Mosher have said they would move away from certain practices, like stacking charges, which means bringing as many charges as possible against a person or alleging every historical prior felony conviction in an effort to increase the sentence.
But neither committed to instructing their office to never seek such charges, again stopping short of commitments taken by some Democrats in neighboring Maricopa County. (Diebolt did not respond and has not elaborated upon his stances on this issue elsewhere.)
“We can create policies that … require our prosecutors to seek justice and not vengeance,” Conover told the Political Report. “Stacking charges, seeking consecutive sentences, and historical priors have all been used questionably. I’d like to put an end to all of those practices.” She later clarified that she would allow “highly trained and mentored prosecutors” to retain discretion to use such practices.
Mosher similarly said he opposes alleging historical priors or stacking charges, and he too qualified his response, allowing that he may use those practices if “pursuing that approach is both legally correct and necessary to protect community safety while increasing the opportunity for rehabilitation.” Similarly, he said he would prefer judges to have discretion to deviate from mandatory minimums “when those minimums are clearly inappropriate,” but also seemed wary of allowing judges to have such discretion, noting that it is what “let Stanford swimmer Brock Turner off the hook with a lenient punishment for sexual assault.”
Conover has earned the endorsement of Mass Liberation, a group that seeks to end mass incarceration in a state that has one of the highest incarceration rates in the country. (Mass Liberation has advocated for extensive sentencing reforms in the legislature in recent years.)
The death penalty
All three candidates have publicly stated that they would not seek the death penalty if elected. Arizona is one of 28 states that still allows the sentence. Since 1992, the state has executed 37 people; 13 of those people have come from Pima County—more than any other county in Arizona.
This is another issue where the candidates’ track records differ greatly. In the 1990s, Conover was the education chairperson of the Coalition of Arizonans to Abolish the Death Penalty, and she says this was her entry point into activism.
Mosher calls the death penalty a waste of taxpayer money. On Feb. 8, 2019, though, he signed a notice stating the county attorney’s office will seek the death penalty against Christopher Matthew Clements, who is charged with first-degree murder, kidnapping, and sexual exploitation of a minor in relation to the deaths of two young girls.
Asked how that action squares with Mosher’s stated opposition to the death penalty now, his spokesperson told the Political Report, “Those actions don’t show that he would seek it at all. They show that he is a person who has a boss [LaWall]. That was her decision.” Mosher added that he argued against the death penalty in this case in internal deliberations.
“LaWall has historically opposed criminal justice reform,” said Joel Feinman, who serves as the chief public defender in Pima County. (Feinman emphasized that he was speaking in his personal capacity as a criminal defense attorney and not on behalf of the public defender’s office.) “Their policy clearly is they put the highest priority on prosecuting low-level drug offenses. That’s a horrible policy. That’s exactly the opposite of what we should be doing. That just shows you are not a good steward of public budgets, and you do not understand substance abuse.”