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Changes Needed to Utah’s Domestic Violence Law as Part of Larger Mens Rea Reform

May 3, 2017  |  Posted in: Blog  |  No comments

Earlier this week, we released a short video about the need to alter the current state statute on domestic violence. As it stands, the statute is a prime example of how too often the law does not judge a person’s intent, but instead only looks to see if the person violated the strict letter of the law. Domestic violence laws are meant to be used to prohibit and punish those who injure or harm others they live with—spouses, partners, roommates, etc.

But as government inevitably does, the current statute goes too far and punishes innocent people. This comes about because in Utah if you “commit any offense against property,” specifically “the property of another,” you are also committing domestic violence. On its face that seems fine, until you think back to your recent joint tax return that you filed and you realize that all your property is jointly owned with your spouse. Therefore, that property you just smashed on the ground is considered to be “the property of another”.

All of a sudden, depending on the cost of the property, you might be looking at charges up to a 2nd degree felony.

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Juvenile Justice Reform Recommendations Released

December 19, 2016  |  Posted in: 2017 Bills  |  One comment

The juvenile justice system is a complex ecosystem of policies, processes, and programs aimed to deter and/or punish minors who commit a crime. With little reform over the years, there has not been sufficient oversight to control costs, reduce recidivism, and ensure that justice is actually being served through existing criminal laws and the methods by which they are enforced against youth offenders.

Last week the Utah Juvenile Justice Working Group released its recommendations on how to improve this system. The working group was created by Governor Gary Herbert, Chief Justice Matthew Durrant, Senate President Wayne Niederhauser, and House Speaker Greg Hughes for the purpose of developing recommendations in three areas:

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How Juries Can Refuse to Convict People for Breaking an Unjust Law

June 21, 2016  |  Posted in: Interview  |  2 comments

Editor’s note: The following is a lightly edited interview with Kirsten Tynan, executive director of the Fully Informed Jury Association. The organization works to informed potential jurors about the nature and importance of juries, and the power jurors have to refuse to convict defendants of violating an unjust law.

Libertas Institute: Why are juries important?

Kirsten Tynan: In the legal system, there are many parties involved who have a vested interest in a certain outcome. Really, the only independent party in the courtroom is the jury—or, if you prefer, each individual juror. The judge obviously is paid by and works for the government; judges often come from the ranks of prosecutors. They have an interest in keeping business rolling by keeping the courtroom full. Prosecutors, of course, are often elected officials whose livelihood depends on getting prosecutions and whose continued employment often depends on appearing to be tough on crime.

Defense attorneys are also not always independent; although we may think of them as always on the side of the defendant, that’s not always true. A lot of public defenders, who incidentally are also paid by the government, have a cozy relationship with the other government employees in the courtroom and may not steer their client in a direction that is in their client’s best interest.

So really, the purpose of the jury is to be an independent body that stands between the defendant and a malicious prosecution, unjust law, or corrupt process. They are there to be a bulwark for liberty.

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Utah Judge Compels Suicidal Teenager to Attend Public School Despite Being Legally Homeschooled

June 14, 2016  |  Posted in: Interview  |  2 comments

UPDATE: One day after this interview was published—and after it went viral throughout Utah—Judge Bazelle recused herself from the case. The case is now pending a further court hearing.

Editor’s note: The following is a lightly edited interview with Diane and her daughter Sarah who have been charged with contempt of court for disobeying a judge’s order to compel Sarah to attend a public school, when Diane has decided instead to homeschool her. The stress from this situation has led Sarah, a junior in high school, to attempt suicide more than once.

Due to the emotional stress of this ordeal along with pending litigation—which Libertas Institute has intervened to provide—and at the young woman’s request, we have changed both of their names to keep them anonymous for the time being.

Libertas Institute has reviewed the relevant laws, court documents, and audio recordings from each court appearance to substantiate the family’s claims. The views expressed below do not necessarily represent Libertas Institute.

Libertas Institute: Tell our readers how this experience began.

Diane: Sarah was charged with habitual truancy in November 2015 for missing “97 unexcused class periods” throughout the previous year. She had been struggling emotionally and dealing with bullying at school and had a hard time being on campus.

Sarah: We had to show up at the Fourth District Juvenile Court before Judge Suchada Bazzelle. When she asked me why I was missing school, I told her this:

I feel like going to school makes me want to… I’d rather commit suicide than walk in the halls of school. I’ve been treated really badly by other students and teachers. And I’ve never felt it was a safe place to be.

It was not an easy thing for me to even be able to go on the days that I did. I would feel that I was trapped and alone. I could not stand being there. I got counseling and I was on medication and nothing seemed to help. When I was at school, everything made it worse. I could not stand it.

LI: Did the judge show any compassion?

Diane: Not at all. She threw the book at us and didn’t believe Sarah because she couldn’t provide any evidence showing what was done to her. We tried doing the Home & Hospital program for her so there could be some flexibility, but a school boundary change put us in the middle of a game of hot potato, with neither school wanting anything to do with it.

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HB 405: A Potential Second Chance for Juvenile Offenders

February 22, 2016  |  Posted in:  |  No comments

This bill passed the House 64-3 and passed the Senate unanimously.

Libertas Institute supports this bill.

Adult brains function differently than those of children; the latter group processes information through a portion of the brain that performs less rational analysis on the information being processed. As a result, children are more prone to acting without weighing the associated and obvious risks that may accompany their action.

This premise lies at the foundation of House Bill 405, sponsored by Representative Lowry Snow, which would prohibit life without parole sentences for youth offenders who plead guilty to, or are convicted of, a capital felony.

At present, 16 states ban life without parole for children. A recent U.S. Supreme Court decision ruled that for minors, these sentences are a cruel and unusual punishment banned by the U.S. Constitution. And while few minors in Utah have been given life sentences without the possibility of parole, its elimination is still an important policy decision the legislature should support.

As a fundamental principle, incarceration should be rehabilitative—and not merely punitive. Imprisoning an individual for a crime committed should not merely occur to remove that threat from society, but also to help that individual become a new person and gain an opportunity to re-enter society at a later date, in all but the most heinous of cases.

One might argue that capital felonies are exactly those cases that merit life without parole, to “lock ’em up and throw away the key,” as it were. And while we would agree in cases of adults who have the mental acuity sufficient to understand right from wrong, this logic falls apart when one concedes the point that juvenile offenders cannot be held accountable to the same degree for crimes committed without the same rational understanding and analysis that an adult brain can perform.

HB405 does not prohibit life sentences for minors who have committed capital felonies. It only requires that parole be an option, such that at a future time in that person’s life, they can have an opportunity to demonstrate whether they have, as an adult, become an entirely different person worthy of a second chance at being a peaceful part of society.

SB 189: Repealing The Death Penalty In Utah

February 18, 2016  |  Posted in:  |  3 comments

This bill passed the Senate 15-12 but was not considered by the House.

Libertas Institute supports this bill.

We have written extensively about the problems associated with the death penalty in our policy brief and recent op-ed. It is too costly, it is inefficient, and it does not promote good public safety. Instead, it siphons money from more important criminal justice priorities in order to fund what has essentially become expensive retribution. It would be wise policy to stop seeking the death penalty.

Senate Bill 189, sponsored by Senator Steve Urquhart, would repeal the death penalty in Utah. For all crimes prosecuted after May 10th, 2016, the state could not seek the death penalty in applicable capital murder cases. Instead, these defendants would face the same penalty as most murder suspects–life in prison, including life without the possibility for parole. A fiscal analysis in Utah showed the aggregate marginal cost for seeking the death penalty over life in prison was as much as $1.7M. This means that state could save nearly $2M for each case in which the state forgoes seeking the death penalty. That savings would go right back into the local county budgets for higher priority public safety expenditures. When retribution costs that much, we need to rethink our policy.

HB 160: Ensuring Justice Court Judges Are Trained In The Law

February 8, 2016  |  Posted in:  |  2 comments

This bill passed the House 44-28 and passed the Senate 24-4.

Libertas Institute supports this bill.

Most people who interact with the legal system do so through one of the state’s many justice courts. However, justice courts are not considered “courts of record” and are controlled and operated by municipalities. Interestingly, the judges for these courts are not currently required to be lawyers. The legislature has previously attempted to reform these courts in a common sense way, but leadership defunded the bill late in the session and, as a result, the reform proposal died.

Representative Craig Hall has sponsored House Bill 160 to focus on the qualifications for the judges who preside over these courts. The bill would require judges appointed in counties of the 1st, 2nd, and 3rd class (with a population of over 31,000) to be trained in the law as evidenced by graduation from law school.

This bill was a companion bill to House Joint Resolution 1 which was a proposal to amend Utah’s Constitution. However, Representative Hall has agreed to abandon this effort and focus instead on this more narrow statutory change. Utah’s Constitution currently states that “no qualification may be imposed which requires judges of courts not of record to be admitted to practice law.” This bill would not make any changes to that requirement.

While we generally oppose state-imposed barriers to entry for occupations, including unnecessary government licenses, we don’t presume that practitioners of occupations don’t need special education or qualifications at all. On the contrary, such education and qualifications can help a practitioner stand out in a free and competitive marketplace where consumers can choose more qualified individuals over less qualified ones if they desire. However, when it comes to the individual hired by the government to determine whether you may go to jail or not, there is no free market. You don’t get to choose one judge over another. You are stuck with the judge the government chooses, no matter their qualifications. This bill would ensure that such judges have at least a basic legal education before sitting on the bench.

Under the Sixth Amendment to the United State Constitution, criminal defendants are entitled to legal counsel. However, in many cases defendants may not qualify for a court-appointed attorney and often represent themselves in justice court actions. In these cases, the government typically has a legally trained professional prosecutor. It is possible in such cases that, without a legally trained judge, the prosecutor would be the only law trained individual in the court. This places the defendant, whose liberty is on the line, at a significant disadvantage against the government.

SB107: Adding a Penalty for the “Hate” in Crimes

January 28, 2016  |  Posted in:  |  No comments

This bill failed in the Senate, 11-17.

Libertas Institute opposes this bill.

Senate Bill 107, sponsored by Senator Stephen Urquhart, would create a “penalty enhancement” for any crime that involves “hate.” Specifically, the bill stipulates that the added penalty would be triggered in cases of a criminal offense where the actor intentionally targeted the victim because of the actor’s “belief or perception regarding [the] individual’s ancestry, disability, ethnicity, gender, gender identity, national origin, race, religion, or sexual orientation,” or the victim’s affiliation with a group that has one or more of the listed characteristics. The penalty is also triggered if the crime is against property for the same reasons.

If a judge finds that a person has committed a “hate crime,” then the crime’s penalty increases by one factor; for example, a class B misdemeanor would automatically become a class A misdemeanor. This is a significant change; for example, a third degree felony involves zero to five years in prison, whereas a second degree felony has a one year minimum in prison, and a maximum of 15 years.

This bill seems especially incongruous in light of the recent criminal justice reforms which involved a widespread reclassification and reduction in crimes, in part to keep people out of prison who should not be there.

The motives involved in a crime are not important to the action itself. Whether an assault was instigated by the aggressor’s jealousy, drunkenness, anger, or discriminatory “perception” about the victim’s personal characteristics is immaterial. Taxpayers should not be required to subsidize higher incarceration rates in pursuit of misnamed “social justice.”

SB79: Denying Juvenile Courts Jurisdiction over Adults

January 23, 2016  |  Posted in:  |  No comments

This bill passed the Senate unanimously and passed the House 54-18.

Libertas Institute supports this bill.

Under current law in Utah, the state may treat legal adults as minors if the adult is between 18 and 21 years of age, and if a juvenile court has ordered the state to maintain custody.

What this means is that a minor in the state’s custody who turns 18 may not return home, if the person wishes to do so, should the judge disagree for any reason. This happens in Utah—and it’s wrong.

Senator Al Jackson has sponsored Senate Bill 79 to resolve this issue. It would specify, simply, that a minor means “a person under 18 years of age”—and not adults under 21 who are ordered by a judge to remain in custody of the state.

HB85: Private Attorneys General: Incentivizing the Protection of Liberty

December 22, 2015  |  Posted in:  |  No comments

This bill passed the House unanimously but was not considered by the Senate.

Libertas Institute supports this bill.

Several years ago, the Utah legislature enacted a law that prohibits the awarding of attorney’s fees under the private attorney general doctrine—a process by which a private citizen is compensated for performing duties normally expected of the elected Attorney General. Utah is now the only state that statutorily prohibits this process.

In a new public policy brief, we explain the history of this issue, and why it is important to repeal the prohibition. When the government violates the rights of Utah citizens, the Attorney General would be duty bound to defend the government agency. As such, a private citizen who overturns the law through the courts should be compensated for representing and defending the public.

Representative Brian Greene has sponsored House Bill 85 to repeal this prohibition, thereby allowing appellate courts to once again consider the request for compensation in limited cases where the plaintiffs have successfully defended the important rights of the public.

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