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The following op-ed, written by our president Connor Boyack, was published today in the Deseret News.

Four years ago, prosecutors in the Utah Attorney General’s office conspired behind closed doors to deceive the Legislature into changing state law to facilitate taking property from people who have not been charged with, let alone convicted of, a crime.

And they got away with it. In the 2013 general session, prosecutors presented a 50+ page bill that its sponsor, Representative Brad Dee, falsely claimed to his colleagues to be nothing more than a technical reorganization of existing law. In fact, the bill contained numerous and substantive changes that eroded property rights and due process for those whose property had been taken by police.

Stealing from others is wrong—except, apparently, when it’s the government doing it.

Read more »


Governments regularly struggle to apply antiquated laws to new, innovative businesses. Food truck owners have experienced this firsthand, with cities unaware of how to best classify and regulate their mobile kitchens.

Unfortunately, this has resulted in a patchwork of arbitrary and redundant policies that frustrate truck owners, provide no consumer protection, and in the aggregate result in significant compliance costs that threaten to undermine an upstart business.

Unnecessary regulations should be eliminated—duplicative health and fire permits, prohibitions on operating within a certain distance from restaurants, mandates to change locations frequently, costly bonding, background checks, and more. Even worse, many cities in Utah completely ban food trucks.

Food trucks are highly popular and provide a great community service and economic development opportunity. Barriers placed in their way should be reduced or removed.

Read More in our Public Policy Brief

The following op-ed, written by our director of policy Michael Melendez, was published today in the Salt Lake Tribune.

Imagine if your child found school so emotionally distressing that they would rather die than go to class. Bullying, depression, and extreme embarrassment are just a few of the situations that too many of Utah’s school children endure.

As a parent, you would do all in your power to help and comfort your child, even if it meant changing the environment in which their schooling takes place. Most likely you would investigate several options that “appear” to be available to you: counseling, changing schools, or even homeschooling.

But then imagine if the school district and the court system sought to compel you to keep your child in the school where the problems began. What would you do if your child was forced into an environment that was demonstrably harmful to his or her well being? Surely the law would protect you and your family from such a situation.

Unfortunately, that may not be entirely true.

Read more »

Libertas Institute is excited to announce our latest hire, filling an open position for our Director of Policy role.

mm2Michael Melendez has been a liberty activist since his days in high school. His involvement includes work with the Campaign for Liberty, Young Americans for Liberty (YAL), and Students For Liberty. Michael served as the Utah state chairman for YAL from 2013-2015, helping recruit, educate, and mobilize college students throughout the state in support of the cause of liberty.

Michael has managed and worked on dozens of campaigns for liberty-minded candidates all over the country, including South Carolina, Kansas, Michigan, Illinois, and Utah.

During the 2013 and 2014 legislative sessions, Michael served as a staffer to state senator Howard Stephenson, helping pass significant reforms in education, government drone use, and civil asset forfeiture. Most recently, he worked at the Waterford Research Institute, a digital education non-profit, as their state government affairs manager.

A native Californian and Brigham Young University graduate, Michael is a historian by trade and enjoys genealogical research, watching old films, and talking about old baseball heroes.

Contact Michael at

Tuesday, August 16, 2016 | 5 comments

New Report Gives Low Grade for Utah

Salt Lake City, UT (August 16, 2016) — A new report issued by the Cato Institute, Freedom in the 50 States, highlights the degree to which states protect the personal and economic freedom of their citizens. Utah was ranked 20th.

The report—first published in 2009 by the Mercatus Center at George Mason University—grades states in three areas:

  • Fiscal policy: taxes, government employment, spending, debt, and fiscal decentralization
  • Regulatory policy: liability system, property rights, health insurance, and labor market
  • Personal freedom: a variety of categories including incarceration rates, marriage laws, education, guns, and alcohol

The report notes that “Utah does very well on regulatory policy overall” and “generally well on criminal justice policy,” though “quite poorly on alcohol, cannabis, gambling, and tobacco.”

Read more »

Monday, August 15, 2016 | One comment

Creating Crime in Utah

Each year bills passed by the legislature have the potential of creating new, or altering existing, crimes and the penalties associated with them. In an age when government policy can result in criminalizing everything from unlicensed lemonade stands to catching the wrong lobster, it is important that we pay careful attention to the bills passed by the legislature to ensure that they are not inadvertently criminalizing conduct that is not truly criminal. A few years ago we covered this issue in depth.

In Utah, the legislature passes nearly 500 bills each year. On average, about 50 of these (10%) deal with criminal laws or processes and 20 of those have a potential impact on criminal penalties. Since 2008, 455 bills have passed the legislature dealing with criminal laws with 193 of those creating new, or altering existing, criminal laws. In Utah, there are over 10,000 criminal laws you can be charged with (many of them are repetitive for each local jurisdiction). To find a master list of each potential criminal offense you can be charged with you can refer to the state’s Master Offense Table.

The Utah Sentencing Commission tracks bills that may impact sentencing and criminal penalties each year. We have compiled these reports into one cumulative listing since 2008 for easy reference. While a variety of legislators sponsor these bills, some legislators sponsor more than average. Many of these legislators also serve on either the Judiciary or Law Enforcement Committees.

Here are the top legislative sponsors for criminal justice related bills since 2012:

Most criminal justice bills:

Rank Legislator Bills
1 Sen. Thatcher 13
2 Rep. Ray 12
3 Sen. Bramble 12
4 Sen. Hillyard 11
5 Rep. Hutchings 10
6 Sen. Weiler 9
7 Rep. Seelig 7
8 Rep. Hall 7

Most bills with felony changes:

Rank Legislator Bills
1 Sen. Thatcher 5
2 Sen. Hillyard 2
3 Rep. Seelig 2
4 Rep. Greenwood 2
5 Rep. Powell 2

Most bills with misdemeanor changes:

Rank Legislator Bills
1 Rep. Ray 5
2 Sen. Weiler 4
3 Sen. Mayne 4
4 Sen. Thatcher 3
5 Rep. Seelig 3
6 Rep. Powell 3
7 Rep. Dunnigan 3
8 Sen. Urquhart 3
9 Sen. Bramble 3

In 2015, the legislature overhauled many criminal statutes in an effort to ensure fewer admissions and stays in prison and to reinvest savings on treatment and rehabilitation instead. We applaud this effort to be smart on crime and believe that taxpayer dollars should not be wasted on senseless over-criminalization.

Students of history understand how precious religious freedom can be, since governments of ages past so often tended to regulate and restrict a person’s religious behavior and belief. In America, the freedom of religion can be traced in part to the bold civil disobedience of William Penn, 346 years ago today.

portrait_tAmericans are familiar with Penn as the founder of the province of Pennsylvania, a colonial refuge for religious dissidents. But his contribution to the cause of religious freedom came many years before his migration.

Despite being born into a distinguished Anglican family as the son of an Admiral, young William decided to join the Religious Society of Friends, or “Quakers,” at the age of 22. Two years later he wrote a pamphlet titled “Truth Exalted,” in which he criticized all religious groups except Quakers. He soon thereafter published his second, titled “Sandy Foundation Shaken,” a doctrinal critique of the Trinity. This led the Bishop of London to order Penn to be indefinitely detained until he publicly recanted his fiery theological attack.

Read more »

Salt Lake City, UT (August 11, 2016) — The federal Drug Enforcement Administration announced today that it would not remove marijuana, or cannabis, from “Schedule 1,” which classifies it as a drug with “no currently accepted medical use.” In response, Libertas Institute president Connor Boyack issued the following statement:

Earlier this year, the Utah legislature shot down a comprehensive, well-regulated, and patient-oriented medical cannabis proposal that would have provided safe, legal access to thousands of sick Utahns needing cannabis. During the legislative session, many elected officials expressed a preference in instead asking the federal government to reschedule cannabis.

Today’s announcement by the DEA shows the futility of deferring to the federal government on this issue (in violation of the 10th amendment to the U.S. Constitution). Meanwhile, patients in Utah illegal using this alternative medicine continue to be criminalized. That is unacceptable.

We encourage the Utah Legislature to reconsider their actions and proactively provide these patients with legal protection from the criminal justice system—especially in light of the federal government’s misguided and self-interested refusal.

Utah is now in a minority of states that make the medicinal use of cannabis a crime. It’s time to find a consensus on this issue for the benefit of the suffering Utahns who need it.

In his 2016 State of the State address, Governor Herbert has emphasized, “our state economy has added 219,000 new jobs, with an unemployment rate dropping from 8 percent down to 3½ percent today.” According to the U.S. Dept. of Labor, he’s right; Utah has the 15th lowest unemployment rate in the country. Why then did the state request a federal waiver for time limits on welfare requirements? Why are we still keeping some able-bodied working age adults dependent instead of helping them become self-reliant?

In 1996 Congress passed significant welfare reforms, ending the Aid to Families with Dependent Children (AFDC) and replacing it with Temporary Assistance for Needy Families (TANF). The rationale behind the change came from a study by the Cato institute in 1995. Cato found in some cases that someone on welfare could earn as much as twice the amount of a minimum wage job. While welfare has undergone many reforms, there is still room to improve and incentivize work instead of perpetuating a cycle of dependency—a trend that for too many has become intergenerational.

In its 2013 follow-up study, The Work vs. Welfare Trade-Off, Cato compared the poverty level with the amount of total welfare benefits available (up to 126 federal programs, not including local programs) and found that in 42 states, the value of welfare programs more than exceeded the poverty level as compared to wage earners—sometimes more than twice over (220% in Hawaii).

To put this into perspective, one of the highest paying states for welfare benefits in hourly wages is Hawaii at $29/hr; 13 states pay the the equivalent of over $15/hr. Moreover, welfare benefits are tax-free; thus, the dollar value of benefits is worth more than wages at a minimum wage job. While that differential may be offset with the Earned Income Tax Credit (EITC) and the Child Tax Credit (CTC), the value and dignity of work and self-reliance cannot be understated. Those who work now, even if at a low wage, are building experience for future wage increases putting them in a better long-run position than those who do not work and subsist on welfare programs.

While there are certainly a variety of problems in assistance programs, including fraud, improper asset testing, and inaccurate income eligibility caps, the work requirements for ABAWDS (able-bodied adults without dependants) seem ripe for reform.

ABAWDS receiving food stamps have three months in a 36 month period where they don’t need to fulfill work requirements. After exceeding that time frame, they are required to work for 20 hours per week or participate in either a work or workfare program of the state. If they do not meet this requirement, they will no longer be eligible to receive food stamps.

This is the very reason welfare programs have work requirements—to give recipients time to work and build job skills while still receiving assistance in order to propel them into future self-reliance.

After the recession in 2008, the federal government established a state-by-state waiver for the work requirement time limits. States could seek the waiver and renew it each year. The waiver removes the time limit (three months) for which an ABAWDS can receive food stamps without utilizing any work programs. With the waiver, one no longer has to participate in these required work programs that are designed to assist individuals in becoming self-reliant or gaining job skills or experience in preparation for re-entering the workforce. This in turn places the recipient of food stamps at a long-term disadvantage as they may put off activities that would otherwise help them transition into the workforce.

Many welfare recipients report fear of job security at low wage jobs. Because many lack job skills to obtain high-paying jobs and therefore often work in entry-level positions, they are reluctant to leave the security of various assistance programs. However, this is the very reason welfare programs have work requirements—to give recipients time to work and build job skills while still receiving assistance in order to propel them into future self-reliance. Removing work requirements actually exacerbates the problem of recipients fearing lack of opportunity in the job market. Given this reality, it is understandable to see why many people remain on federal programs.

Deterring dependence on welfare and promoting self-reliance does not just matter to taxpayers—it matters to individuals, to families, and to entire communities.

The work requirements are not just in place to protect taxpayer dollars from freeloaders or those who would abuse the system—they exist because of the economic value of putting people to work, both individually and collectively. Deterring dependence on welfare and promoting self-reliance does not just matter to taxpayers—it matters to individuals, to families, and to entire communities. Work brings a sense of individual dignity and accomplishment. Work starts people on a ladder to future economic success. Work increases the economic pie of a community, and it creates very real social and economic capital for a family. Work is a valuable thing for society. Assistance programs were designed to assist individuals in times of hardship and then push them to find a job that pays enough to free them from a cycle of government dependence.

Many Utahns desperately need assistance. A few extra dollars for food every month can make a big difference for a family in need. However, insofar as these assistance programs are provided by government, policy makers must ensure that the inherent problems of bureaucracy do not inadvertently incentivize dependence. These workers need incentives to become self-reliant and they need the constructive support of work programs.

A study of Kansas, which reinstated work requirements in 2013, found a huge increase in re-employment. The study monitored the effects on individuals’ employment and earnings through an extensive tracking system. It found that the number of ABAWDS on food stamps dropped 75%, freeing 13,000 Kansans from welfare at the end of 2013. “Nearly 60% of those leaving food stamps found employment within 12 months,” notes the study, “and their income rose by an average of 127% per year.” This in turn increased economic activity, allowing the state to apply those resources to other state priorities. Kansas work participation has nearly tripled.

A study of Kansas, which reinstated work requirements in 2013, found a huge increase in re-employment.

On average, Kansas enrollees earn more than double the amount since work requirements were reinstated, and dependence on food stamps has been cut in half. Welfare reform in Kansas helped taxpayers save nearly $100 million over two years. The study’s conclusion is that the best anti-poverty tool is work.

Similarly, in 2011, Maine re-established work requirements and watched the ABAWDS caseload drop 80%, from over 13,000 recipients to under 2,700. As the Heritage Foundation noted, “Giving welfare to those who refuse to take steps to help themselves is unfair to taxpayers and fosters a harmful dependence among beneficiaries.”

Work is a sound principle of self-reliance and the greatest of anti-poverty tools.

Food stamp dependents across the country have tripled in the last 15 years, growing from 17 million in 2000 to 46 million in 2015. Spending on the food stamp program has grown ten times as fast as federal revenue—diverting resources from other priority programs. Studies show that implementing work requirements is the best way for food stamp dependents to move out of poverty.

Utah sought, received, and has renewed a partial waiver for the time limits on work requirements since 2009. This partial waiver allows the state to remove time limits for work in counties with “hardship” where unemployment rates exceed 10%. Our research indicates that 17 counties across Utah have met this criteria since 2009. In a letter to the U.S. Department of Health and Human Services in 2012, the state defended the waiver and the ability of states to receive it. The argument centered on the need for state flexibility and autonomy instead of federal executive micromanagement. While we agree that federal programs should be returned to the states, it is important that the programs we implement in Utah are based on sound principles. Work is a sound principle of self-reliance and the greatest of anti-poverty tools.

Utah sought, received, and has renewed a partial waiver for the time limits on work requirements since 2009.

Utah’s robust economy should provide ample opportunity for those in need in our state to find a job, even if it requires moving from a low population rural county to a place in the state with more opportunity. With an economy this great, Utah should not be incentivizing reliance on federal welfare programs. If Utah followed the examples of Kansas and Maine, it would likely further reduce unemployment while helping more Utahns to become self-reliant. Utah’s motto is industry. In the beehive state Utahns ought to be industrious, not dependent.

In 2012 Wyoming Governor Matthew Mead rejecting the waiver that Utah now has, stating that, “such a weakening waiver is not something Wyoming will neither seek nor accept… We must all continue to encourage a productive society, empowering Americans by promoting individual responsibility.”

Cato’s study concluded that, “If Congress and state legislatures are serious about reducing welfare dependence and rewarding work, they should consider strengthening welfare work requirements, removing exemptions, and narrowing the list of activities that qualify as ‘work.’ Moreover, states should consider ways to shrink the gap between the value of welfare and work by reducing current benefit levels and tightening eligibility requirements.”

If our economy is so strong, why do we continue to implement a policy that abuses taxpayer dollars and deters economic growth? By implementing these sound principles, we will gain a more resilient workforce, lower unemployment rate, and better assistance programs that help move people from welfare to work. That is—or should be—the Utah way.

Editor’s note: The following is a lightly edited interview with Creighton C. Horton II, a retired Utah prosecutor who spent 30 years prosecuting cases in Utah in Salt Lake County and in the Attorney General’s office. His recent book, A Reluctant Prosecutor: My Journey describes his experiences during his career including his evolution on the death penalty. Mr. Horton’s op-ed about problems with the death penalty was featured earlier this year in the Salt Lake Tribune. The views expressed below do not necessarily represent Libertas Institute.

Libertas Institute: Tell our readers a little bit about yourself and your career as a prosecutor in Utah.

Reluctant Prosecutor bookCreighton Horton: After graduating from UCLA Law School, I came to Utah and got a job as a prosecutor in the Salt Lake County District Attorney’s office. I worked as a prosecutor there for nine years and then transferred to the Utah Attorney General’s Office, where I worked for 22 years. When I was in law school I was interested in becoming a defense attorney, not a prosecutor, but through happenstance I went into prosecution and ended up becoming involved in a series of high profile cases. I prosecuted about a dozen capital murder cases—serial killers, child killers, sexually deviant killers, religious fanatic killers, and mentally deranged killers. Some of those I helped convict have been executed or are currently on death row. I recently published a book about my career, entitled A Reluctant Prosecutor: My Journey.

LI: You said in your book that you wanted a job where you help people. How do you think your career as a prosecutor helped you to do that? 

Creighton Horton, UCLA Law School

CH: Well, I think that there are a number of ways a prosecutor can help people. You play a key role in the criminal justice system, by bringing to justice those who victimize others. And if you’re conscientious about what you do and are careful in your charging decisions, you can ensure that you’re not accidentally prosecuting somebody who’s innocent. Additionally, you play a role in assisting victims and family members of victims. In murder cases, I tried to identify with the surviving family members and to think how I might feel if I were in their shoes. Family members can often feel powerless and anxious, being unfamiliar with the legal system, and unsure about the whole process.

I made it a practice to get to know victims’ family members so they understood that I cared about their cases and would do the best job I could, and I committed to be accessible to them if they had any questions or concerns.

LI: In the book you talk about turning down a lot of jobs at private law firms holding out instead for more public service-oriented work. It seems you were deeply committed to using your law degree for good and not just to make money. Why?

Retiring state prosecutor Creighton Horton stands in the state Capitol. He has spent 31 years in the legal system. (August Miller, Deseret News, June 2009)

Retiring state prosecutor Creighton Horton stands in the state Capitol. He has spent 31 years in the legal system. (August Miller, Deseret News, June 2009)

CH: In the book I talk about the influence of my father who was a medical doctor. He told me something when I was about 10 or 11 years old that made quite an impression on me. Back then doctors would make house calls and sometimes I would go with him on those visits. We had gone to the home of an elderly woman who had been a patient of my dad’s for a long time, and instead of waiting in the car he asked if I wanted to come inside with him. So I went in and met this woman. She seemed really delighted that Dad was there. I could tell that the visit was more than just a doctor visit to write a prescription. It was meaningful to her.

My dad didn’t approach it as a job where he just moved from patient to patient. It was much more personal than that. So, after we left, we drove home and when we got there, Dad turned to me and said: “You know, there are lots of ways of making money in this world, and everybody has to make a living, but I hope you’ll choose some type of work where you’ll be helping people, rather than just making money.” That stuck with me.

LI: How did you reconcile this desire with your career in law?

CH: During law school I began to feel that much of legal practice is so contentious—it didn’t fit well with my personality. I was more of a consensus-builder and a peacemaker than somebody who enjoyed the competitive arena of a courtroom. I kept thinking that if it was just about making money, I would rather make money in some other way  I didn’t want to just work as a private attorney advancing the goals of whoever was paying me. Eventually, I found my way to prosecution.

Being a prosecutor, you work for the people in general, not for individual clients. It’s a luxury in the law to be in a position like that where you aren’t just representing individuals or private interests, but are working for the common good, to accomplish justice. That is the goal of prosecutors and that is something that really resonated with me. I could look at my job in terms of “what’s the right thing to do?”, “what’s the fair thing to do?”, “what’s the just thing to do?” as compared to merely asking “who’s paying me and what do they want me to accomplish?”

LI: You talk in the book of having a change of heart on the death penalty, why?

Capital defendants receive a lot of publicity, and they become household names.

CH: A year and a half into my career as a prosecutor, I was assigned to assist in the prosecution of Joseph Paul Franklin–a racist serial killer. He was accused of killing two young black men while they were jogging with white women in Liberty Park in Salt Lake City. He had shot them with a high-powered rifle after setting up in a field across from the park. I worked on that case and then a couple of other capital cases. By the time I had worked on three capital cases, I started to feel less and less comfortable working on them, for a number of reasons.

First, capital defendants receive a lot of publicity, and they become household names. Basically, those charged with capital murder almost become rock stars, in the sense of how much press attention they receive. I didn’t like that part of it.

Second, I didn’t like the fact that there could be political considerations as to whether or not the office was going to pursue the death penalty. In fact, in one of the cases I worked on, the defendant was quite unlikely to get the death penalty given his lack of prior record and the circumstances of the case. However, it was an election year and the county prosecutor didn’t want to be criticized for being “soft on crime.”  So, even though the case could have been settled if it hadn’t been an election year, it went to trial instead and dragged on longer than it needed to. In the end, the jury predictably went with a life sentence, which we could have accomplished without going to trial.

Third, I didn’t like the fact that capital cases that result in the death penalty languish in the courts for years—in fact, decades. I still remember early in my career going into the office of the attorney in the Utah Attorney General’s Office who handled capital case appeals. He had a flowchart that went all around his wall mapping out all of the different levels of state and federal appeals that applied to capital cases. Because of those delays, I came to feel that our capital punishment system made a counterfeit promise to the families of victims, and set them up for unrealistic expectations and an emotional roller-coaster ride.

As I mention in the book, once a jury comes back with a verdict of death, that’s likely to be the last satisfaction a victim’s family is going to have for decades. From that point on, they’re going to have to endure round after round of appeals and challenges to both the conviction and sentence of death. I felt it was cruel to victims’ families to have to live with that uncertainty, delaying so long them getting the closure that would allow them to move on with their lives.

LI: Is it possible to streamline the trial and appeals process in death penalty cases to make it shorter or cheaper?

Creighton HortonCH: About 10 or 15 years ago, when I was working in the Attorney General’s office, the chief of the Appeals Division went up to the Legislature and basically made the case that the system was broken and that we didn’t really have a viable death penalty system in Utah, unless a convicted murderer, like Arthur Bishop, volunteered for execution. The Appeals Division chief suggested that the Legislature either change the system to shorten the delays, if they could, or do away with capital punishment and just have life in prison without parole instead. So, our dysfunctional death penalty system was brought to the attention of the Utah Legislature years ago. And years later nothing has really changed.

If you streamline [the process] too much you may end up in a situation where an innocent person is put to death.

The reality is that there are constraints beyond the power of the state legislature. There are federal constitutional constraints that govern the federal appeals process and if you try and streamline the state system you still can’t control the federal system.

More importantly, even if you could streamline the system, if you streamline it too much you may end up in a situation where an innocent person is put to death. In the 80’s before DNA was available, a man named Kirk Bloodsworth was wrongly convicted of a murder he didn’t commit in the state of Maryland. If the process had been streamlined then and he had been executed quickly, Kirk, an innocent man, would have been put to death before he had an opportunity to be exonerated through DNA evidence, which only became available years after he was convicted. In the Bloodsworth case, DNA eventually not only exonerated Kirk, but also proved conclusively that another man was the actual killer. I think we can all be grateful that Kirk was not on an expedited path to execution.

LI: Do you think the risk of convicting an innocent person is real?

[DNA exonerations] shook up my view of the fallibility of our system.

CH: Yes, it’s absolutely real, and it has happened not only to Kirk Bloodsworth, but also to many other people. Back in the early 90s when we started hearing about DNA exonerations in other states, It was a big eye-opener to me and I’m sure to other prosecutors as well, and it shook up my view of the fallibility of our system.

One of the biggest causes of wrongful convictions is mistaken eyewitness identification. People are sometimes absolutely convinced that they can accurately identify the perpetrator of a crime but, tragically, they identify an innocent person, who is then convicted on the strength of that “compelling” eyewitness testimony. That’s what happened to Kirk Bloodsworth. Someone saw a man in the woods near where the little girl’s body was found, and then a police artist made a sketch based on the description of that witness. The sketch was shown on the TV news and someone called in saying they thought the sketch looked like their neighbor, Kirk Bloodsworth.

It may seem inconceivable that somebody who had nothing to do with a crime like that could be convicted in our system that requires proof beyond a reasonable doubt, but it does happen.

Senator Urquhart, who sponsored the bill to abolish the death penalty in Utah, made the point during the legislative session that government doesn’t do anything perfectly, and since there is no perfect system, there’s always the possibility that you could convict an innocent person, and sentence him or her to death.

Moreover, in the Bloodsworth case, it initially appeared that the DNA evidence collected from the scene had been lost and that there would be no way to test for DNA. Fortunately, they eventually found and tested the evidence. Without that, Kirk could never have proved his innocence, and the actual killer would never have been brought to justice.

LI: What purpose does the death penalty serve in our justice system today?

CH: In terms of deterrence, it creates “specific deterrence,” meaning that it’s effective at preventing that specific person from killing again. However, most arguments about deterrence concern deterring other people from killing out of fear of receiving the death penalty. I see no compelling evidence that it works as a deterrent in that way. Many heinous murders are committed in jurisdictions with the death penalty. Even in those jurisdictions, it is hard to predict who will get the death penalty and who won’t. Add to that the never-ending appeals, and it’s hard to gauge any real deterrent effect on other prospective killers.

When you think about any potential societal benefits for executing a murderer, I don’t think they outweigh the negatives.

When you think about any potential societal benefits for executing a murderer, I don’t think they outweigh the negatives. Given the problems with the death penalty, and knowing there’s no such thing as a perfect system, if you favor capital punishment, you have to be willing to tolerate the possibility that some innocent people will be executed for crimes they didn’t commit. If you believe that no erroneous executions are acceptable, you start to see the death penalty in a different light. That is where I have come down on the issue.

LI: Tell us about your personal experience with capital cases in Utah. How many cases were you involved in prosecutions for?

Horton2CH: I was involved in about a dozen capital cases in Utah. Some of the defendants I prosecuted were Joseph Paul Franklin, Arthur Gary Bishop, Norman Newstead, Ronnie Lee Gardner and Ron Lafferty.

We convicted Joseph Paul Franklin for the Utah murders but he got a life sentence here. He was eventually executed in another state for a murder he committed there.

Arthur Gary Bishop was convicted of capital murder for the kidnapping, sexual assault and murder of 5 little boys. After he was convicted and sentenced to death, he volunteered to end his appeals early. The court ordered a psychological evaluation before allowing Bishop to waive his appeals, to ensure that he wasn’t making that decision because he was mentally ill. The psychologist reported back to the judge that he believed Bishop was making a rational decision, on the basis that Bishop viewed decades in prison with no hope of ever getting out as being worse than being executed. So Bishop was allowed to waive his appeals, and was executed.

Norman Newstead participated in a triple murder in Cedar City. Newstead wasn’t caught until he had fled to Oklahoma and killed a cab driver there. While he was convicted of the triple murders in Utah, he was executed in Oklahoma for the murder there.

I also worked on the appeal of Ronnie Lee Gardner, countering his mental claims, and he was eventually executed. Those are the cases I worked on involving defendants who have been executed.

Ron Lafferty was convicted of the murders of his sister-in-law and her baby, and was sentenced to death. He committed his crimes in 1984, and after more than three decades, he still doesn’t have an execution date. The appeals process is continuing. It’s an example of what victims’ family members have to endure in our capital punishment system. Lafferty was first tried and convicted in 1985, but his case was reversed on appeal due to concern over whether he was competent to stand trial. After he was declared competent to stand trial, we tried him again in 1996, and he was once again convicted and got the death penalty; but, 20 years after his second trial, his case is still on appeal.

LI: Does the death penalty accomplish justice?

How do you determine what justice is?

CH: Well, it’s a really interesting question. How do you determine what justice is? When you look at cases where people commit horrible crimes, it’s easy to think that the only justice would be for that person to be executed for their crimes. But when you look at all the different scenarios of cases that come through the capital system, there isn’t much consistency. You see people who kill multiple victims not get the death penalty even when the evidence is compelling and the prosecution seeks it. You also see people who kill a single victim who do receive the death penalty. And there are concerns that, across the country, racial minorities get the death penalty more frequently than others.

Interestingly, when you think about how Arthur Gary Bishop was allowed to waive his appeals and be executed quickly, there are some who might say he actually got off easier because he hasn’t had to sit in a cell for the past 28 years thinking about what he did, and the consequences of his actions. So justice is a complex idea, and it can mean different things to different people; but for me, if someone who would otherwise have been executed spends the rest of their life in prison with no possibility of parole, I think that is sufficient for justice.

LI: What would you tell those who support the death penalty today?

I was really surprised when I found out last February that the Utah Legislature was actually considering a bill to abolish the death penalty.

CH: My approach in the book isn’t to preach or tell others what they should think or do. I didn’t write the death penalty chapter as an advocacy piece, but as the story of my own personal experiences, and how they shaped my evolving views on capital punishment.

Certainly many people’s minds are already made up on the topic of the death penalty. But, for those who are still open to thinking about it, my chapter might be thought-provoking. I wrote it several years ago, at a time when I thought we were a long way away from serious debate about whether Utah should abolish the death penalty.

I was really surprised when I found out last February that the Utah Legislature was actually considering a bill to abolish the death penalty, and that it was happening right at the same time my book was going to publication, so I decided to get more involved in publicly talking about my experiences and my views. I contacted Senator Urquhart, went on a talk radio program with him, and wrote an op-ed piece for The Salt Lake Tribune supporting the bill to abolish capital punishment in Utah.

LI: What are some of those misconceptions people might have about the death penalty?

CH: The reality of how long these cases take on appeal is something people should understand. Many respond that we ought to just shorten it, but it’s just not as simple as that. We can’t put an arbitrary cap on appeals or cap the number of years for the process. Each case is unique and justice demands full due process. When death is on the table you have to ensure the utmost fairness of the proceeding.

The impact of the never-ending appeal process on victims’ families is the most unfortunate part of the whole process. In my view, the family members who get the best outcomes are those whose cases are resolved quickly, resulting in sentences of life without parole.

Another significant thing people need to understand is how it is possible for an innocent person to go through our justice system and be convicted of a murder that someone else committed. It is sobering to think that such a thing could happen given the high expectations on our system, and the high burden of proof on the prosecution to establish a person’s guilt beyond a reasonable doubt.

The impact of the never-ending appeal process on victims’ families is the most unfortunate part of the whole process.

You can have completely honest witnesses testify that they are 100 percent certain of their identifications, and still be mistaken. People need to understand that reality, because to many people it seems counterintuitive – what could be more solid than an eyewitness to a crime identifying the perpetrator?

LI: As a seasoned retired prosecutor what advice would you give to a new prosecutor just starting their career?

CH: I would tell them they need to take very seriously their “gatekeeper” function of determining who gets charged with crime and who doesn’t. Police officers can arrest people, but only prosecutors have the power to bring formal charges. Sometimes police officers feeling pressure to solve cases put pressure on prosecutors to file criminal charges against suspects when the prosecutors don’t believe the evidence is sufficient.

I remember back before Arthur Bishop was caught and police were still trying to find the person responsible for the disappearance of so many young boys, there was an incident where an elderly man in Salt Lake walked past an area in a restaurant where young children were having a birthday party.

One of the children started to walk beside him as he was leaving the restaurant, and although the man’s actions were ambiguous at best, people felt he may have intended to walk out with the child and abduct him. So, the police were called and the man was arrested. When they brought the case to the prosecutor’s office, the detectives were convinced that they had finally captured the man who was responsible for the disappearance of the missing boys, but when you looked at the evidence it was just too speculative. There was no way you could make a solid case from the evidence they had. Nevertheless, the pressure was intense and the prosecutor pursued the case at the insistence of the police. The man was eventually acquitted at trial—predictably so. And of course about a year later Bishop confessed to the killing of all five missing boys.

When a prosecutor succumbs to police pressure and files a weak case, there’s the risk of a wrongful conviction at trial. When that occurs, it’s not only a terrible injustice against the innocent defendant who has been wrongfully convicted, it also means that the real perpetrator is still at large to commit further crimes with impunity. In a murder case, for example, once a person has been convicted of that crime, no one is out looking to solve the case anymore, and the practical effect is that the actual killer is home free.

In the second chapter of my book I shared an article that I wrote for prosecutors that was published by Utah Prosecution Council. It was entitled, “Reflections of a Senior Prosecutor.” I emphasized that a prosecutor has to resist pressure to file cases before the evidence is solid, and sometimes that’s difficult to do. I described a case where a prosecutor didn’t think he should file a murder case because the evidence was lacking. The police and victim’s family called a press conference in which the family accused the prosecutor of victimizing the family worse than their son had been victimized by his brutal killers. They organized a public campaign against that prosecutor, and succeeded in getting him voted him out of office. They got someone else elected who was willing to file the case on flimsy evidence, and not long after it was filed, the case fell apart. The case was solved several years later when DNA evidence established that somebody else had committed the murder, and that the original suspect had nothing to do with it.

So I would tell new prosecutors to take seriously their gatekeeping function and not succumb to pressure to file cases that aren’t ready to be filed, lest they inadvertently prosecute the innocent.

Another thing I would emphasize to young prosecutors is that, while they are advocates for the state, they are first and foremost “ministers of justice.” While defense attorneys represent their clients, prosecutors don’t just represent the police or even the victims—they represent the people at large. Their role as ministers of justice must trump their advocacy roles whenever there’s conflict between the two. That sometimes means being willing to re-evaluate a case after charges have been filed, if new information surfaces that casts doubt on a defendant’s guilt. It’s not all about winning, it’s about doing justice.