Rachel Mitchell, the prosecutor famed for her role in Brett Kavanaugh’s Supreme Court confirmation hearings, may soon be prosecuting abortions. Four years after questioning Christine Blasey Ford on behalf of Senate Republicans, Mitchell is now the chief prosecutor for the nation’s fourth most populous county—and Kavanaugh could soon hand her the power to criminalize reproductive rights.

According to a leaked opinion, the U.S. Supreme Court’s conservative majority is poised to overturn Roe v. Wade in the coming weeks. Arizona is one of many states with a “trigger” law that would criminalize abortion if Roe falls. As interim Maricopa County attorney, Mitchell is in charge of prosecutions in a county that is home to Phoenix and 4.5 million residents, putting her on the front lines of enforcement. She has said she will bring criminal charges under the state’s anti-abortion statutes if the Court greenlights them.

But a special election later this year may cut Mitchell’s tenure short and shift the local policies on abortion in a county that is home to the majority of Arizona’s population. 

Julie Gunnigle, the only Democrat running in this prosecutor’s race, has promised not to prosecute abortion cases if she is elected in November. “As Maricopa County attorney I will never prosecute a patient, a provider, or a family for choosing to have an abortion or any other reproductive decision,” she told The Appeal and Bolts. “Not now, not ever.”

This is a stance Gunnigle also took in the 2020 race for Maricopa County attorney, which she very narrowly lost to Republican incumbent Allister Adel. But Adel resigned earlier this year, amid a series of scandals, and the county government appointed Mitchell to replace her. Adel’s resignation has triggered the special election to fill the remaining two years of her term. To get to the general election, Mitchell must first win an August primary against Gina Godbehere, who shares Mitchell’s views on abortion.

Arizona has passed plenty of anti-abortion laws in recent years. Earlier this year, the state adopted a ban on abortions after 15 weeks that is similar to a Mississippi law currently under review by the U.S. Supreme Court. Even if the Court does not overturn Roe v. Wade, it may still affirm the Mississippi law—a somewhat narrower step reportedly favored by Chief Justice John Roberts that would still amount to a drastic new restriction on access to abortion in Arizona.

Such a decision would open the door to Mitchell and other Arizona prosecutors bringing cases against abortion providers. Arizona’s 15-week ban, which goes into effect in September, states that any doctor who performs an abortion after 15 weeks can be prosecuted for committing a Class 6 felony and can have their medical license suspended or revoked. People who obtain abortions would not be prosecuted under this law, which makes no exceptions for rape or incest. 

In 2020, physicians in Arizona performed 636 abortions after 15 weeks, according to a report from the state’s Department of Health Services. 

If Roe falls entirely, a complicated patchwork of laws and court rulings will take effect. For one, the state has a full abortion ban on the books that dates back to 1864 and could trigger into effect if Roe is overturned. That one-sentence law stipulates that anyone who provides an abortion can be sentenced to two to five years in prison (except in cases of medical emergencies). 

However, there is some uncertainty over how promptly that ban would apply if the court overturns Roe v. Wade. 

“While Arizona has pre-Roe criminal laws on its books, they are currently enjoined and therefore would not immediately take effect if Roe v. Wade is overturned,” Brittany Fonteno, president and CEO of Planned Parenthood of Arizona, told The Appeal and Bolts via email. “A court would have to issue an order lifting the injunction on these laws.”

Perhaps most aggressively, Arizona adopted a sweeping anti-abortion law in 2021 that, among other clauses, established so-called “fetal personhood.” That provision grants “an unborn child at every stage of development all rights, privileges, and immunities available to other persons, citizens, and residents” of Arizona. If Roe falls, abortion-rights organizitations have warned that “fetal personhood” clauses could give prosecutors the ability to charge abortions as anything from civil-rights violations to homicides, given that a fetus at any stage of development in Arizona is now legally considered a “person.”

Arizona Republicans, who control the legislature and governor’s office, may also take new steps to further criminalize abortion. 

“If Roe is overturned, we expect that anti-abortion politicians will continue working to make abortion inaccessible in Arizona,” Fonteno said.

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The impending U.S. Supreme Court decision has significantly raised the stakes in the race for top prosecutor in Arizona’s most populous county.

“Having these people elected and holding this much power over perpetuating harm to our communities is really scary,” said Eloisa Lopez, executive director of the Abortion Fund of Arizona. 

She stressed, for instance, that many people who seek abortion care are already parents. “We are looking at a future of criminalizing parents, putting them in prison, stripping them away from their existing families, and those people will probably be funneled into child protective services.” 

Lopez added that it would make a difference if county attorneys instructed their staff to hold off on prosecuting abortion. “These prosecutors are one of those few lines of defense against the criminalization of pregnancy outcomes,” she said.

In Arizona’s second largest county, Pima County Attorney Laura Conover has already drawn such a line in the sand. She tweeted earlier this month that her office will “do everything in our power to ensure that no person seeking or assisting in an abortion will spend a night in jail.”

Another Arizona prosecutor, Coconino County Attorney Bill Ring, told The Appeal and Bolts that he thinks the state’s 15-week ban is too “vague and illusory” to be enforceable, though he only said he was “unlikely” to actively prosecute under it.

Two of Arizona’s nine abortion clinics are in Pima County. One is in Coconino. The other six are in Maricopa. 

Mitchell, Maricopa’s new prosecutor, has worked in the county attorney’s office for almost 30 years. A self-proclaimed “pro-life” conservative who supports the death penalty, Mitchell is known nationally for her role in Kavanaugh’s 2018 confirmation hearing, when Republican lawmakers tapped her to question both Kavanaugh and Ford on their behalf. Many former prosecutors admonished Mitchell for getting involved in a partisan political process and making misleading and disingenuous statements after the hearing.

Asked whether she would prosecute people who provide or obtain abortions if the Supreme Court allows it, Mitchell confirmed to The Appeal and Bolts that she would, reiterating a stance she has taken elsewhere. 

“As County Attorney, I follow the law,” she said in a written statement. She added that she may use her discretion to not prosecute cases that involve incest. “I’ve sat across from a young girl who became pregnant through incest,” she said. “I will not treat victims as criminals, and I will ensure that cases prosecuted by my office meet the charging standard of a likelihood of conviction at trial.”

The only other Republican in the race, Godbehere, did not respond to a request for comment. But Godbehere, who has also spent the better part of her career working for the Maricopa County Attorney’s Office and is running with the endorsement of several police unions, has largely echoed Mitchell’s views on the issue.  

Speaking on a local radio show last month, Godbehere said that Gunnigle’s stance on abortion prosecutions should disqualify her from the office and that prosecutors cannot “disregard a whole category of offenses because you believe that your opinion is better than the legislature’s or the voters’ of our community.” Mitchell mirrored that language in her statement to The Appeal and Bolts. “Anyone who refuses to uphold the law based on their personal beliefs is unfit to hold office and a danger to democracy,” she said.

Gunnigle contends that Mitchell and Godbehere are denying the discretion that they already exercise as prosecutors. “It’s clear that my opponents don’t understand the role that they’re applying for,” Gunnigle said. “Every single day the role of the county attorney is to go in and decide which cases to prosecute.” She added, “I find statements like that to be incredibly disingenuous, particularly when the office right now only charges about half of the cases, and the county attorney right now is picking which cases to prosecute.”

Defenders of Gunnigle’s take on prosecutorial discretion point out that there are crimes that even conservative prosecutors choose not to prosecute. Eli Savit, a prosecutor in Michigan, recently told Bolts that adultery is still a criminal offense in his state, but “not a single prosecutor is spending any time and any resources prosecuting people for cheating on their spouses.” Adultery is also a criminal offense in Arizona.

Complicating matters further in Arizona is that the state’s attorney general may try to override county attorneys who choose not to prosecute abortion. Some states, like Michigan, allow the attorney general to prosecute criminal cases. 

Arizona law outlines several specific criminal offenses attorney generals may prosecute. Abortion is not one of them. But it is possible that an attorney general could use a creative interpretation that stretches the meaning of other criminal offenses, as prosecutors are wont to do, in order to go after abortion providers. 

“I think there’s definitely the possibility of a legal showdown and asking the court to interpret what this really means,” Gunnigle said about the attorney general’s role. “I will fight tooth and nail to make sure the integrity of this office isn’t sacrificed and doesn’t become beholden to the attorney general’s office.”

Arizona voters will elect a new attorney general this year, and abortion access has already emerged as a major fault line in that race. Kris Mayes, the sole Democratic candidate, has said she would encourage state courts to block new anti-abortion rules, and she has ruled out prosecuting abortion cases if elected. 

But several of the Republican candidates have expressed elation at the thought of Roe being overturned, and some, like Rodney Glassman, have said they will “vigorously” defend anti-abortion laws as attorney general. Another Republican candidate, former prosecutor Abraham Hamadeh, called abortion “murder” and said he is running for attorney general to “stand up for the most vulnerable.” All six Republican candidates in the race are anti-abortion.

Regardless of who’s in office, a ruling against abortion by the U.S. Supreme Court in the coming weeks, coupled with the state’s laws, would create rapid legal and criminal liabilities for people across Arizona.

“These bans won’t stop abortion,” said Lopez, of the Abortion Fund of Arizona. “They will just make it dangerous and unsafe for people. We’re going to see maternal mortality increase, infant mortality increase. There will be more abuse of children. Pregnant people will be criminalized. There will be more family separation. There will be many long-term harms in our community.”

The post Abortion Prosecutions May Hang in the Balance in Maricopa County Election appeared first on Bolts.

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.

Charging policies

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.”

The post Pima County Candidates Battle Over Whether the Prosecutor’s Office Needs an Outsider to Achieve Reform appeared first on Bolts.