The Utah attorney general has proposed a constitutional amendment that would transfer judicial power to the Utah Legislature. The proposal is SJR14, which provides that "following a direct appeal, a person may challenge the legality of a conviction or sentence only as provided by statute." This means that the Utah Legislature, not the Utah Supreme Court, would determine when and whether Utah courts could review illegal convictions and sentences.
Utah's Constitutional Revision Commission — made up of legislators, judges and ordinary citizens — has asked for more time to study the proposed amendment. The attorney general wants immediate action. But there is no reason to rush. Whether the Legislature approves SJR14 this year or next year, the proposed amendment would appear on the ballot in the 2010 general election. In other words, there is no downside to delaying consideration of SJR14 until next year, after the commission has studied the proposed amendment. And there are a number of reasons why the Legislature should proceed more deliberately.
First, the proposed amendment transfers constitutional power from the judicial branch to the legislative branch. If this transfer of power turns out to be unwise, it will be nearly impossible to reverse. Any amendment to transfer power back to the judicial branch would require approval of two-thirds of legislators, who are less likely to transfer their own power to the judiciary than to transfer judicial power to themselves.
Second, the attorney general explains that the goal of the proposed amendment is to speed up executions. Yet SJR14 applies in all criminal cases, not just rare cases involving the death penalty.
The commission should be permitted to consider alternatives that more specifically address the narrow problem SJR14 is designed to solve.
Third, the attorney general assumes that courts are the cause of delays in executions, and, therefore, stripping the courts of power will solve the problem.
Yet there are many other possible causes that have not been ruled out. For example, there has been chronically inadequate funding for counsel and a steadily diminishing pool of attorneys competent to take on extremely complex capital cases. Recognizing this, in May 2008 the Utah Legislature increased pay for counsel from approximately $10 per hour to $125 per hour. The commission should have the opportunity to study the effect of this pay increase before the constitution is amended.
Fourth, the fact that the language of the proposed amendment keeps changing suggests that further study is warranted. Recently, the proposed amendment was changed to provide some assurance that prisoners who are actually innocent have access to courts. And in only the last few weeks language was inserted to protect death row prisoners who could prove that they "lacked the mental state necessary for conviction of a capital offense."
There is no reason to rush to amend the Utah Constitution. Currently, the Utah Legislature and the Utah Supreme Court work in tandem to protect Utahns from illegal convictions and sentences. The Legislature enacts broad statutes enabling courts to grant relief from illegal convictions and sentences. The courts not only apply these broad statutes in individual cases, but also provide a safety net by granting relief in cases that the Legislature did not anticipate.
The Constitutional Revision Commission should be provided time to study whether Utahns will be best served by placing all protections solely in the hands of the legislative branch. The commission was established by the Utah Legislature to perform just that function. The Utah Legislature should honor this process and delay consideration of SJR14 until next year.
Troy L. Booher is an appellate attorney with the law firm of Snell & Wilmer L.L.P. and an adjunct professor at the S.J. Quinney College of Law.