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A nod toward discretion

After the grisly murder and molestation of 9-year-old Dylan Groene case in Idaho this summer, Rep. Dave Ure wants to send a message that anyone who molests and then kills a child in Utah will be automatically condemned to die.

Ure's sentiment is understandable. An entire nation was outraged when a convicted sex abuser allegedly kidnapped and repeatedly sexually abused Dylan Groene and his 8-year-old sister Shasta after their mother, brother and their's mother's boyfriend had been slain at the family home near Coeur D'Alene, Idaho. Shasta was recovered when a waitress recognized her with her abductor from her picture on posters. Dylan was later found dead. Prosecutors have charged Joseph Edward Duncan III, 42, of Fargo, N.D., with three counts each of first-degree kidnapping and first-degree murder. Prosecutors are seeking the death penalty.

Had this crime occurred in Utah, Duncan could likewise have been charged with a capital offense. Existing law gives prosecutors the tools they need to prosecute such a case to the fullest. But not all cases are equal. Prosecutors need the discretion to file charges that can be supported by evidence and credible witnesses. Some cases can be successfully tried as capital cases while others may not.

But this needs to be a prosecutor's call. Prosecutors' hands should not be tied by a statute that calls for the automatic death penalty, which raises serious constitutional concerns.

There's no question the public wants sex offenders who kill held to account. But there's nothing to suggest that Utah prosecutors, under existing law, could not seek the ultimate penalty if the crime warrants it.

Instead of an automatic death penalty, which is a fundamentally flawed premise, the Utah Legislature should back off this proposal. All Utahns want child molesters who kill prosecuted, and they want that prosecution to stick. No matter how much the state wants to send a message, there's no sense in crafting new laws for crimes that can be adequately prosecuted already using laws that are constitutionally defensible.