Joel Feinman’s Simple Solution to Ending Mass Incarceration


Lynching in America continued from the 1920s up to 1980, according to Pima County Public Defender Joel Feinman.

Arizona incarcerates a higher percentage of the population than South Africa did during apartheid. “We are not the land of free and home of brave as long as that statistic is true,” said Pima County Public Defender Joel Feinman.

He spoke recently at a program on mass incarceration sponsored by the Arizona Ground Game (TAGG), a grass-roots Progressive organization that encourages active citizenship through neighborhood building.

“Mass incarceration is a long and ugly story, a bloody and racist tour of where we’ve been,” he said. “The good news is that mass incarceration is actually one of easiest political problems to solve.”

Plea bargains

Part of the problem is the universal use of plea agreements to end criminal cases. In 2013, 97% of criminal cases in the federal system were resolved by plea bargains.

“The average sentence for federal narcotics defendants with a plea agreement is  5 years,” Feinman said. “For defendants who went to trial, the average sentence was 16 years — more than 3 times the years in prison because they chose to exercise their constitutional right under the 6th amendment to have a trial by jury.”

Plea bargains are an unfair contract, where the prosecutor (the Pima County Attorney) has all the bargaining power and the defendant has none. “The criminal justice system is more interested in moving cases along than dispensing justice,” he said. “As a result, you get the highest incarceration rate and the highest number of people in prison. The judge is not the most powerful person, not the jury, not our state representatives or congress people — it is your local prosecutor. They are by far the most powerful person in the criminal justice system.”

Racism in criminal laws

“We cannot talk about mass incarceration without talking about race. The reason we have such a vastly disproportionate number of people of color in prison is that it is precisely what our political leaders intended. In 1866 we passed the 13th amendment: all slavery is outlawed except for people who are convicted of a criminal offense. What did powerful white men in the South who had recently lost a war, what did they do? They recaptured that human property by re-enslaving those people through the criminal justice system.”

White men have a 1 in 17 chance of being in prison in their lifetime. For black men, the odds are 1 in 3. For a white woman, the odds are 1 in 111. For a black woman, the odds are 1 in 18.

Oppressive drug laws

At the turn of the 20th Century, vagrancy and intoxication charges were used to put black people in jail and use them in chain gangs. “Right when that started to ebb, we killed blacks by lynching them.”

Today, oppressive drug laws directly result in mass incarceration.

In Arizona prisons today, 21% of inmates are there for narcotics crimes. Only 1.4% are in prison for rape or sexual assault. “Why in the holy hell are we prosecuting more nonviolent drug offenses than sexual assault and rape?”

Mandatory minimum sentences are another cause of mass incarceration. “Mandatory minimum sentences are a critical tool for prosecutors to do what they want. If you go to trial for stealing a car, the judge has to sentence you for 5 years in prison. This gives the prosecutor power to offer you 2.5 years in prison.”

For example, simple possession of marijuana is a felony in Arizona, despite that 153,000 Arizonans can buy marijuana with a state-issued medical marijuana card at 130 state-approved dispensaries.

Feinman said the public defender is representing a 15-year-old boy with mental health issues. He went off his medication and stole cigarettes from behind the counter of a store, and showed a knife handle in his pocket. Pima County Attorney Barbara Lawallcharged him as an adult violent offender. “The prosecutor had the discretion to charge him as a juvenile, but the county attorney chose to charge him as an adult violent offender,” Feinman said. 

Disenfranchising thousands

Prison sentences deprive masses of people of their civil rights. “In 2016, 221,000 Arizonans were disenfranchised —  they cannot vote because of their criminal conviction. “If you are convicted of a felony, you automatically lose your civil rights, lose the right to vote, to be on a jury, to bear arms, or to run for office.” This is 4.25% of the state population. President Trump won only by 3.5% in Arizona.

The loss is permanent. Arizona has no expungement law. “We need to have an expungement law that says after a certain amount of years, your record is wiped clean.”

Tamar Ralla Kreiswirth, the head of The Arizona Ground Game urged attendees to elect bettwer officals. "It's all in our hands. Do we want legislators who are tied to the private prison systm, or do we want legislators who will focus on infrastructure and edcuation."

Tamar Ralla Kreiswirth, the head of The Arizona Ground Game, urged attendees to elect better officials. “It’s all in our hands. Do we want legislators who are tied to the private prison system, or do we want legislators who will focus on infrastructure and education?”

“If you want to turn Arizona blue, reform mass incarceration laws by electing Democrats.”

To persuade conservatives and Republicans, Feinman makes a fiscal argument. “When I talk to conservative Republicans or right-wing talk radio, I point out that mass incarceration is the worst welfare there is.”

The state government spends an average of $23,000 per inmate. “Keeping a person in the Pima County jail for a year costs $34,000.” In contrast, the state spends only $3,500 per student in K-12 schools.

“When people say it’s too expensive to reform mass incarceration, that’s false.
What we are doing now it the most expensive thing. There is no more expensive solution to crime than what we are doing now.”

The simple solution

Feinman says the simple solution is to elect Progressive people to the 15 County Prosecutor positions in Arizona.

“You change the prosecutor and you change the system,” he said. “As horrible as mass incarceration is, the upside is that it’s one of easiest problems to fix. If we elect different leaders who are committed to ending mass incarceration, then we will see change. We will actually move closer to the idea of being a country where people are born free and have due process.”

As positive examples, he cited Kimberly M. Foxx, the new Cook County, Illinois, state’s attorney who ran as a reformer on the issues of wrongful prosecutions and police reform, and reformer District Attorney Larry Krasner in Philadelphia, who said he wouldn’t seek cash bail in certain crimes.

“The best way to get elected prosecutor is to say, “I’m going to keep you safe, and use coded language that the bad men are black, and say “I’m tough on crime and I’ll send everyone to jail.” This is how Pima County Prosecutor Barbara Lawall got elected.

“You can vote the prosecutors who do nothing to address mass incarceration out of office.”

5 responses to “Joel Feinman’s Simple Solution to Ending Mass Incarceration

  1. Sen. John Kavanagh

    Regarding the statement,

    “Today, oppressive drug laws directly result in mass incarceration. In Arizona prisons today, 21% of inmates are there for narcotics crimes. Only 1.4% are in prison for rape or sexual assault. “Why in the holy hell are we prosecuting more nonviolent drug offenses than sexual assault and rape?,” a little context is needed because it is misleading.

    In Arizona, you only go to prison on the third drug offense conviction or plea, assuming you are not a dealer or trafficker. On the first two convictions, you get mandatory probation and treatment.

    Also, the latest statistics (6/18) show that 74% of Arizona prisoners are violent offenders (52% on the current charge and 22% historically.) Only 8.9% of current prisoners are in for drug possession with just 0.5% for marijuana only. 11.9% are in for drug sale/trafficking.

    To see the stats, go to: https://corrections.az.gov/sites/default/files/REPORTS/CAG/2018/cagjun18.pdf

    • Joel Feinman

      Senator:

      You wrote, “In Arizona, you only go to prison on the third drug offense conviction or plea, assuming you are not a dealer or trafficker. On the first two convictions, you get mandatory probation and treatment.”

      Untrue, Senator. Please refer to ARS 13-901.01(H)(4), which clearly states that mandatory probation for first and second time drug possession convictions does not apply to methamphetamine.

      It is also untrue to insinuate that everyone doing time in Arizona prisons for “dealing” and “trafficking” are drug dealers, as that term is commonly understood by the general population. There is no minimum amount of narcotics which must support a trafficking or sales conviction. Thousands upon thousands of Arizonans can – and are – convicted of “trafficking” and “sales” for selling tiny amounts of drugs to support their own habits, often to undercover police officers who initiate the transaction in the first instance. In Pima County, between 7/1/17 and 1/31/18, 81.52% of all drug felonies, including “sales” and “trafficking” cases, involved 2 grams or less of narcotics. 2 grams equals 2 sugar packets.

      Finally, it is the term “violent offenders” that is misleading. As you are no doubt aware, the very same DOC report you link to clearly states at the bottom of page 1, “Total Violent Offenders; includes offenders of a non-violent statute who have used a weapon or caused an injury.”
      This means the Arizona Department of Corrections defines a violent offender as, 1) a person convicted of capital murder for shooting three people, 2) a person convicted of disorderly conduct for firing a gun into the air, 3) a person convicted of aggravated assault for breaking
      someone’s nose in a bar fight, and 4) the 15-year-old boy with mental health issues mentioned in this article, who went off his medication and stole cigarettes from behind the counter of a convenience store, and showed the store clerk a knife handle in his pocket on the way out. This child is currently charged with a “violent” offense. If he is convicted at trial he must go to prison, and Arizona taxpayers must pay $25,020.75 per year to keep him there.

      • Sen. John Kavanagh

        Points taken but the stats still show only 21% of the inmates are in for any type of drug offense, including trafficking. So much for oppressive drug laws and their toll.

        Also, I suspect that the number of truly dangerous violent prisoners far outnumber the examples you site. And I doubt people without prior serious records go to prison for punching someone in the nose in a bar fight.

        But your points do clarify the stats, to a degree.

  2. Excellent article, Mr. Bodine.

    I was going to say this earlier on your post about the CD2 forum. Ann Kirkpatrick as well as any Democratic candidate who does not support the legalization of marijuana needs to explain why.

    The prosecutions for the marijuana related “crimes” are often absurd and I have to believe that maintaining the status quo in these times has more to do with law enforcement jobs than anything else.

    Those who haven’t experienced this may not know how absurd it really is.

    My friend’s grandson and another 18 yr old black male were arrested for possession of less than three grams of marijuana in Broward County, Florida, back in 2015. It happened during a traffic stop (driving in darkness without headlights). Both of these kids had just started college, their first time away from home. They were driving a 2015 Toyota Camry, a high school graduation gift. Both of these kids come from well off families.

    As first time offenders, they were allowed to attend rehabilitation classes and have their “criminal” records expunged. I heard about all of this just before they started the program so their criminal records were still accessible on the county website. I counted over TWENTY court actions for each “defendant” up to that point. I process like that certainly keeps a lot of folks working. And it’s happening all day every day in most of the country.

    It’s difficult to imagine a more ludicrous waste of resources. And that doesn’t even address the damage done to those who are arrested and processed through the criminal justice system for such minor offenses and breaking laws that shouldn’t even be laws.

    So what happened to these kids? One of the young men was taken out of school by his dad after he finished his “rehabilitation”. He got a job in retail. But I understand why his father was afraid for him. The other young man, my friend’s grandson, also dropped out of school and moved back home.

    No one wins here except the law enforcement employees who cash paychecks. That’s all I see here.

    Perhaps Ann Kirkpatrick can shed some light on why we should continue doing this to people.

    • Joel Feinman

      Senator:
      You wrote, “”In Arizona, you only go to prison on the third drug offense conviction or plea, assuming you are not a dealer or trafficker. On the first two convictions, you get mandatory probation and treatment.”

      Untrue, Senator. Please refer to ARS 13-901.01(H)(4), which clearly states that mandatory probation for first and second time drug possession convictions does not apply to methamphetamine.

      It is also untrue to insinuate that everyone doing time in Arizona prisons for “dealing” and “trafficking” are drug dealers, as that term is commonly understood by the general population. There is no minimum amount of narcotics which must support a trafficking or sales conviction. Thousands upon thousands of Arizonans can – and are – convicted of “trafficking” and “sales” for selling tiny amounts of drugs to support their own habits, often to undercover police officers who initiate the transaction in the first instance. In Pima County, between 7/1/17 and 1/31/18, 81.52% of all drug felonies, including “sales” and “trafficking” cases, involved 2 grams or less of narcotics. 2 grams equals 2 sugar packets.

      Finally, it is the term “violent offenders” that is misleading. As you are no doubt aware, the very same DOC report you link to clearly states at the bottom of page 1, “Total Violent Offenders; includes offenders of a non-violent statute who have used a weapon or caused an injury.”
      This means the Arizona Department of Corrections defines a violent offender as, 1) a person convicted of capital murder for shooting three people, 2) a person convicted of disorderly conduct for firing a gun into the air, 3) a person convicted of aggravated assault for breaking
      someone’s nose in a bar fight, and 4) the 15-year-old boy with mental health issues mentioned in this article, who went off his medication and stole cigarettes from behind the counter of a convenience store, and showed the store clerk a knife handle in his pocket on the way out. This child is currently charged with a “violent” offense. If he is convicted at trial he must go to prison, and Arizona taxpayers must pay $25,020.75 per year to keep him there.