Fault Lines
30 April 2017

Prosecutors Hate Utah’s New Sentencing Initiative

Mar. 8, 2016 (Mimesis Law) — Changes in the sentencing structure in Utah are apparently not sitting well with some prosecutors, according to two articles published over the weekend in Ogden, Utah’s Standard Examiner.  New laws, which went into effect on October 1, 2015, under the Justice Reinvestment Initiative, have sought to lower sentencing ranges for non-violent offenses.   In the opinion of some of members of the prosecution in Utah, the classification of “non-violent” has lead to inappropriately soft sentences on two types crimes that aren’t deserving of leniency:  repeat Driving Under the Influence and drug dealing.

Booming state prison populations and costs prompted the reforms. So did concerns that too many inmates were being held in prison longer than necessary for non-violent crimes.

[State Sentencing] Commissioners said they wanted to create a new scoring system “focusing on factors relevant to the accurate determination of risk to re-offend.

As noted in the articles, the new Initiative creates a new classification method for criminal offenses, “person” which involves “some form of violence” and “other.” The prosecutors quoted in the two articles are objecting to the fact that DUIs and drug dealing offenses fall under that category of “other,” and are not being treated with the appropriate level of seriousness that they deserve.

The argument against leniency on DUI cases is more compelling than the argument against leniency for drug dealing, despite the fact that drug dealing offenses are generally a higher level offense than most DUI cases. It can rationally be argued that every person driving under the influence puts every other motorist on the roadway at risk of death or severe injury.  The offender profiled in one of the articles, Brad Wayne Stark, was convicted for his seventh felony DUI offense, yet parole guidelines under the Initiative dictate an early release.

If prosecutors had their way, [prosecutor Chris] Allred said, they’d put him in prison for his entire five-year term. “That doesn’t fix his alcohol problem,” Allread acknowledged, “but at least he’s not endangering anyone.”

Prosecutors are equally offended at the idea that the new sentencing guidelines seemingly fail to differentiate the drug addict from the drug dealer when making punishment assessments.

“It is poisoning society,” [prosecutor Chris] Shaw said. “We are sympathetic to people struggling with addiction . . . not so much with high-level dealers financially profiting from addicts who commit other crimes to support their addiction.”

“The point is that mollycoddling dealers is a disservice to those struggling with addiction,” Shaw said.

This argument is less compelling, despite its awesome use of the term “mollycoddling.” The fact of the matter is that the minds behind Utah’s Justice Reinvestment Initiative were not attempting to draw a line between drug users and drug dealers.  They were drawing a line between violent offenses and non-violent offenses, which is a distinction that is more worthy of different sentences.

Shaw points to the case of Gale Owen Stapely, who received a lenient sentence for second-degree felony possession of controlled substances with intent to distribute, only to be arrested again three weeks after an early release. On the subsequent arrest, Stapely illegally possessed an AR-15.  Shaw’s argument appears to be that all drug dealers are inherently violent and should be treated as such, even if no violence has actually occurred.

The fact of the matter is that harsher sentencing for non-violent offenses like drug dealing isn’t practical from a budgetary standpoint, either. The impetus behind the Initiative was troubling statistics from Utah’s prison population.

A 2015 report by the Pew Charitable Trusts said even though Utah crime declined over the past 20 years, the state’s prison population grew 18 percent from 2004 to 2013, six times faster than the national average.

Without changes to policies and practices, the state projected its prison population would grow by 2,700 inmates, or 37 percent, by 2034, costing taxpayers more than $500 million, the report said.

Ultimately, while treating the drug dealer with the same “kid gloves” as the drug user may offend a prosecutor’s delicate sensibilities, it is difficult to argue that the distinction between violent and non-violent offenses isn’t more important if you are in danger of bankrupting the state.

The prosecutors’ arguments for harsher treatment of drug dealers hasn’t seemed to persuade proponents of the Initiative.

Ron Gordon, executive director of the Utah Commission on Criminal and Juvenile Justice, cautioned that the new system’s overall goals must continue to be championed.

“The important question is that bad things have always happened and some bad things are going to happen. You can’t blame every bad thing on the policy changes, “ Gordon said.

“For nonviolent people, they need substance abuse and mental health treatment and a better response in the mechanism of probation and parole to find the root causes and stop the cycle of recidivism,” Gordon said. “We will continue to see crime, we will fight crime and we will put dangerous people behind bars.”

As a former prosecutor, it is easy to understand the contempt that Shaw has for the drug dealer. Inside the prosecutorial mind, drug dealers are typically viewed as the cornerstone of where street crime originates.  If a drug user commits a violent crime, such as robbery or murder, to get money to pay his drug dealer, then surely the lion’s share of the moral culpability falls at the feet of the dealer, right?  Drug dealing promotes a culture of violence.

Unfortunately, this leap in logic ignores the fact that the mere act of drug dealing, isn’t per se a violent offense, and a large misconception that prosecutors often delude themselves into believing so they can proactively stop crime by harsher sentencing.  This misconception becomes even more egregious when that delusion give rise to the idea that harsher sentencing on non-violent offenses will lead to a reduction of violent offenses.

A decade or so ago, prosecutors were reluctant to embrace the idea of treatment instead of incarceration for addicts. Today, there is reluctance to embrace the idea of lesser sentences for drug dealers.  Ultimately, the thing that prosecutors are generally most resistant to is change.

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  • dm
    8 March 2016 at 12:20 pm - Reply

    It borders on the amusing that prosecutors think of most drug “dealers” in such an inflammatory way. I knew lots of “dealers” growing up and most were friends who dabbled to make a few extra bucks. Even if they had a relatively large amount of drugs none of them carried guns because they only dealt (no pun intended) with their friends.
    The war on drugs was lost a long time ago. That prosecutors cannot seem to deal with that fact doesn’t change that reality. The march toward legalization of marijuana is proof of that fact. As a Colorado resident I can state that legalization has not caused any serious crime problems in this state.
    Get over it prosecutors.