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POLITICS & PUNISHMENT: SOME SAY MANDATORY SENTENCES BRING MINIMUM RESULTS. BUT OTHERS SAY STIFF PENALTIES PROVIDE JUSTICE.

A fistful of words were tossed, minutes before midnight, into a hasty amendment brewed on the Senate floor.

Macbeth's witches would be jealous.Their own midnight brew galvanized a small Scottish army. But Sen. Lane Beattie's late-night political dish - an amendment wiping out minimum-mandatory sentences for child sex abusers, child kidnappers and assailants who injure women in sexual assaults - galvanized the state.

Special-interest groups clamored. Press conferences were called. Protesters organized. Calls were made and letters written.

The debate pitted advocates for the safety of children against those wary of sentences that offer no room for mercy. Conservatives faced off against conservatives.

Beattie proffered a public apology for his tactics, explaining he waited until the last minute to avoid the intense and often volatile emotion that would surely accompany a public debate on the issue.

Gov. Mike Leavitt called a special session of the Legislature to decide whether the law should take effect this year or next.

But larger questions now loom, making it likely that the political echoes of that March night's work will be heard in Utah long after Wednesday's special session has ended.

Defining minimum mandatory

Minimum-mandatory sentences were created as part of HB209, which became law in 1983. It forced judges to sentence those convicted of child sexual abuse, child kidnapping and aggravated sexual assault of a woman to a minimum number of years in prison.

Because Utah has an indeterminate sentencing scheme, many thought the laws were an unspoken criticism of the state's criminal justice system.

In indeterminate sentencing, which applies to most crimes, the judge imposes initial sentences of undetermined lengths of time, varying from zero to five years, one to 15 years or five to life, depending on the severity of the crime.

The Board of Pardons and Parole later decides when an offender gets out of prison.

In this system, where nothing is a given, minimum mandatories are the only absolute. In the cases where minimum-mandatory sentences apply, both the judges' and board's hands are tied.

The sentences work this way: For certain sexual abuse crimes, a judge must impose a minimum sentence of three years if there were mitigating circumstances, six years if it was a straightforward offense and nine years if there were aggravating circumstances.

For the more serious sex crimes and kidnapping of a child, the minimum sentences are 5, 10 and 15 years.

The fact that the sentences are unalterable for judges gives peace to some but heartache to others. Minimum-mandatory sentences offer little mercy and some wonder if, without mercy, society can have true justice.

But one victim says knowing that the person who raped her is behind bars for at least 15 years is the closest thing to justice that society can give her.

Danielle was raped by the man dubbed the "Capitol Hill rapist" in August 1986.

"I drive by the Point of the Mountain several times a week," she said. "I know I'm safe from him now. But I'm aware he's up (for parole) in 2002. . . . Am I safe from him then?"

The rapist's long stay behind bars is the price he must pay for the night that "tilted" her world, she believes. "No one has the right to go in and damage a person without paying a penalty," she said.

Target: longer sentences

The odd thing about the combatants in the minimum-mandatory fray is that both sides want the same thing: longer prison sentences.

Beattie believes offenders will go to prison more often and stay longer without minimum-mandatory sentences.

Many defendants are pleading guilty to lesser crimes in plea bargains to avoid the minimum-mandatory sentences, hence, serving less time in prison or none at all, he said.

Without minimum-mandatory sentences, offenders aren't cowed into pleading, will likely take their chances at trial and receive stiffer sentences, Beattie said.

"Under my law, they are no longer afraid of minimum-mandatory sentences. They will go before a judge and be sentenced to five years to life."

Beattie drafted his amendment after several prosecutors and judges told him minimum-mandatory sentences weren't working.

"They feel like without them, they will prosecute more people to the full extent of the law," he said.

Leavitt might agree. "I was concerned with whether they were really working," Leavitt said. "I philosophically agreed a change needed to be considered."

But former U.S. Attorney Brent Ward helped draft the 1983 law and stands by minimum-mandatory sentences.

"I think minimum-mandatory sentences are a terrible idea, except in sexual abuse cases." His reason: True pedophiles have a high chance of committing their crimes again.

"They will commit an average of 60 offenses against children before they are caught the first time. When they are released, they will commit them over and over again.

"Unfortunately, the best thing we can do is keep them off the streets for as long as possible."

Pedophiles weren't being kept off the street before the 1983 law, he said.

State prosecutor Rob Parrish agreed. "Prior to that time, judges who were sentencing child sex abusers were almost always giving them probation."

Well-meaning judges often ordered counseling, but much of it was done by therapists who had no expertise in child sexual abuse, said Parrish, chief of the Utah attorney general's children's justice division.

"So we ended up seeing victims victimized by the same person they had reported on before. The guy was back across the street, or in the home, and the abuse continued to go on. . . . Victims were saying, `We don't want to report again, because it's useless.' "

Roughly 80 percent of the cases prosecuted by Parrish's team are charged under the minimum-mandatory laws, he said.

So who is right? Do minimum mandatories send more people to prison longer - or are longer sentences more likely to happen without them?

Corrections officials are compiling statistics that will show how long inmates sentenced for sex crimes are spending behind bars. State officials promise to have the numbers in time for Wednesday's special session.

But one statistic available now implies that criminals sentenced under minimum mandatories are staying in prison for long lengths of time. Of the 269 people sentenced to prison under the minimum-mandatory law in the past 12 years, only 24 have been paroled.

Lawmakers will need more than statistics to pacify special interest groups outraged by Beattie's tactics. Ironically, the volatile emotion he hoped to avoid has been heightened because he and fellow lawmakers prevented discussion and public input.

"We as a society need to give answers to these victims, not ignore their voice in the process," said Scotti Davis, director of the Utah Chapter for the Prevention of Child Abuse.

She called the passage of the amendment a "slap in the face" to the effort that amended Utah's Constitution to protect crime victims' rights.

"Not only didn't we listen to victims, we didn't listen to anybody," Davis said. "There are many, many unanswered questions."

Davis has prepared a list of some of the questions for legislators to consider before the special session.

Who weighs the scales

Justice, the blindfolded woman holding the scales, is supposed to weigh the demands of justice.

Judges daily do the same - except when they are imposing minimum-mandatory sentences that allow them no leeway in evaluating individual cases.

Critics of minimum-mandatory sentences say that removing discretion from judges and the Board of Pardons is a disservice to society.

"You can't put every single crime into a nice, tidy little box," said Mike Sibbett, chairman of the Board of Pardons and Parole. "Every crime has its own story, its own background, its own victim. The Board of Pardons can look at individual circumstances. That's the strength, I believe, in our indeterminate sentencing (scheme)."

"Humans deserve the right to appear before other humans and talk about their progress or lack of it," Beattie said.

"I just don't think you can lump these offenders or their offenses into one category," added defense attorney Edward Brass. "There's no uniformity or predictability."

By not allowing judges to use the abilities that qualify them for the bench, minimum-mandatory sentences become "an unfounded criticism of our judiciary," Brass said.

But 3rd District Judge Tyrone Medley said he doesn't feel strongly about mandatory sentencing one way or the other.

"I prefer to have the discretion to sentence the person based on what I think the appropriate sentence ought to be under the circumstances. But I can understand the argument on the other side: an attempt to protect the children of this community."

Medley values the guidance of the mandatory sentencing laws and the outlined probation requirements in the law.

But Davis said much of the support for minimum mandatories 12 years ago was sparked by examples of offenders getting lenient sentences from judges. The possible repeal of minimum mandatories terrifies some victims.

But Sibbett assured victims that the prison gates will not open and allow sex offenders back on the street indiscriminately.

Sometimes the board imprisons an inmate longer than required by the minimum-mandatory sentence. Bobby Lee Boog, the "Capitol Hill rapist," was such an inmate.

He raped Danielle and admits to raping 14 other women.

In 1989, he asked the board to give him "some light at the end of the tunnel," giving him a release date.

It didn't. Instead, the board gave him a rehearing date 15 years away. He was sentenced to a minimum of 10 years.

Boog says he resents the mandatory sentences. "It was a means to get me to confess . . . to get the case disposed of as quickly as possible," Boog said of broken promises made to him by prosecutors.

Boog's case illustrates Sibbett's point: "We're strong law enforcement supporters. We're a very conservative board," Sibbett said.

Many in law enforcement are also strong supporters of minimum-mandatory sentences.

"We're on the front line," said Salt Lake County Sheriff Aaron Kennard. "There are some people being let out when they shouldn't be."

Officers like mandatory sentences because there is "a certainty of punishment" that acts as a deterrent.

Salt Lake City Police Chief Ruben Ortega agrees criminals hear the message when the state sends it loud enough and tough enough. "It sends a strong message to these hardened criminals: `We're not going to tolerate that (criminal behavior) anymore.' "

He admits the laws need to be fine-tuned, but he'd like to see more minimum mandatories and fewer exceptions.

Ortega took it a step further, suggesting the Board of Pardons may be an out-dated system.

"Has the Parole Board outlived its usefulness? I think it has. I'd like to see judges have more discretion. Let's don't parole people for economic reasons," he said. "I'm very concerned with the power they have under the current system."

Suggestions for lawmakers

Danielle's advice to the sentencing commission and ultimately lawmakers is "walk a mile in a rape victim's moccasins."

Emotion, she said, is an integral part of the debate, and she warns legislators they can't consider crimes like rape without the emotion that goes with them.

"I'm sure it's like trying to make male legislators understand what childbirth is like," Danielle said. The second best thing, she said, is for them to imagine it's the woman closest to them - a mother, a sister, a daughter, a wife.

"There are obvious repercussions (to being a victim)," she said, "like the fear. Fear of being alone, fear of being in strange places, fear that you may become a victim of other crimes. You are robbed of that sense of security that most people walk around with."

The man who robbed Danielle of that security also has some advice for lawmakers.

"(The board) is more able to judge and determine whether these individuals in here are a danger to society or not," Boog said. While he says minimum mandatories are "very beneficial to prosecutors" in plea bargaining, they aren't a deterrent to criminals.

Sex offenders have told him "they'd rather leave no (witnesses) than spend 15 years behind bars."

Prosecutor Sandra Sjogren sees the impact differently.

"We know that while somebody is locked up in prison, he isn't interacting with children. That, to me, is really the bottom line of mandatory prison sentencing."

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ADDITIONAL INFORMATION

Sex offenders currently in Utah prisons*

How they were sentenced:

245 committed under minimum-mandatory sentences.

244 committed for new offenses created by HB209.

296 committed under regular sentencing guidelines.

785 total

Since the enactment of HB209 in 1983, 269 Utah inmates have been given minimum-mandatory sentences. Only 23 of those have so far been paroled.

42 were sentenced to a minimum of 15 years in prison

78 were sentenced to a minimum of 10 years in prison

76 were sentenced to a minimum of 5 years in prison

11 were sentenced to a minimum of 9 years in prison

33 were sentenced to a minimum of 6 years in prison

29 were sentenced to a minimum of 3 years in prison

*As of 4/14/95. Statistics from Utah Department of Corrections.