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VOTERS V. JUDGES

The Case of the "Stop Juvenile Crime Initiative"

11:00 PM, Nov 24, 1996 • By ANDREW PEYTON THOMAS
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Anyone glumly anticipating another four years of Clinton judicial appointments and continued expansion of criminals' rights can find cheer in a little-noticed initiative just adopted in Arizona. Despite a fierce opposition campaign run by injudicious judges and lawyers and abetted by a hostile press, citizens of the Grand Canyon State voted overwhelmingly to require the adult prosecution of certain juvenile offenders and to curb overweening judges.


The initiative was a local response to the wave of juvenile crime that afflicts the whole nation. Between 1989 and 1994, Arizona's juvenile arrest rate for violent crimes rose a staggering 527 percent; for murder alone, it more than doubled. In response to these trends, Gov. Fife Symington and victims' fights advocates launched the Stop Juvenile Crime Initiative, or Proposition 102. The measure proposed that all juveniles age 15 and older who are charged with murder, rape, or armed robbery be prosecuted as adults.


In addition, the initiative proposed an amendment to the state constitution with broad implications. Arizona's constitution, adopted in 1910, vests the courts with "exclusive original jurisdiction" over abused, neglected, and delinquent juveniles. Progressive-era judges were expected to oversee the treatment and rehabilitation of wayward youths.


While this approach may have made sense back when juvenile crimes were relatively minor and judges were elected, it has given Arizona's latter-day juvenilecourt judges, who are mostly appointed, a veto over the transfer of serious juvenile offenders to adult courts. Juveniles not tried as adults must be released from state custody upon turning 18, regardless of their crimes. In numerous and locally notorious cases, Arizona judges, citing the prospects for rehabilitation, have declined to transfer heinous young offenders to adult court.


Prop. 102 revoked the courts' exclusive jurisdiction and allowed the state legislature to make policy for juvenile justice. On Election Day, 63 percent of Arizona voters supported the initiative.


Still, this happy outcome was achieved only after a blistering counteroffensive from judges and lawyers. Press releases and pamphlets denouncing Prop. 102produced and distributed at taxpayers' expense -- were fired off from judges' chambers. Leading the charge was Stanley Feldman, chief justice of the Arizona Supreme Court. Feldman publicly proclaimed the initiative "frightening" and personally orchestrated the campaign to defeat it. When the supreme court heard arguments on whether the initiative should be thrown off the ballot, Feldman's conflict of interest was so glaring that, in an extraordinary step, he recused himself. Facing a popular backlash, the court gingerly declined to assert jurisdiction.


Other judges joined the fray with equal gusto. John Foreman, Maricopa County's presiding juvenile-court judge, was ubiquitous, stumping against the initiative despite the obvious conflict of interest (never noted in the press) . As the election approached, his countenance seemed to grow grimmer by the day -- which was hardly surprising, given Foreman's philosophy. In a memo to " concerned citizens" earlier this year, he wrote: "The juvenile-justice system properly understood is a mechanism to redress the unequal availability of wealth, good schools, stable families and health care that tends to push minority children toward the juvenile-justice system. Denial of the opportunity for rehabilitation in the juvenile-justice system for those minority children who are amenable to treatment exacerbates the discrimination that they suffer in contemporary society." In other words, juvenile-court judges should shield minority youths from criminal punishment to try to make up for the white racism that forced them into lives of crime.


Even the likes of Foreman, however, could not have engaged in open electioneering as sitting judges without recent, conveniently timed changes to the state's code of judicial ethics. In August, as the opposition's campaign was heating up, the committee of judges who incestuously determine the canons of judicial ethics for Arizona ruled that -- presto! -- judges could engage in all the activities of politicians without the burden of running for office. As a result, judges could speak at partisan events, raise money, and generally spearhead the opposition's campaign without fear of professional censure.


Still, no less a figure than the very conscience of the county, Judge Foreman, ran afoul of these liberalized rules. In October, he admitted sheepishly to the local press that he had sent an e-mail to county prosecutors-including those who appear in his court -- soliciting contributions for the anti-initiative campaign.