The best course in addressing supposed delays in death penalty appeals would be to allow the courts to continue to conduct thorough reviews and to apply appropriate constitutional and statutory protections.
But if the Utah Legislature is convinced — as Utah's Attorney General Mark Shurtleff is — that the state Constitution should be amended to address delays in capital cases, it should consider the amendment proposed by Utah attorneys Troy Booher and Michael Zimmerman, former chief justice of the Utah Supreme Court.
Booher and Zimmerman have proposed to the state Constitutional Revision Commission an amendment that would limit to three years the time frame in which capital appeals can be raised.
This is a preferable option to Shurtleff's SJR14, which narrowly passed the Senate but was killed in the House during the 2009 General Session. It may resurface in 2010. It would have applied to all criminal appeals and would have allowed the Legislature to limit the issues on which convictions and sentences could be appealed. The proposal was overly broad and could have led to unintended consequences, legal scholars have said. Worse yet, it undermined the separation of powers.
The amendment proposed by Booher and Zimmerman is narrow in scope. It applies only to death penalty appeals and leaves the Legislature out of what should be the sole purview of the state courts. The Constitutional Revision Commission, which makes recommendations to the Utah Legislature, could reach a decision on a possible amendment by fall. Any proposed change would have to pass both houses of the Utah Legislature by a two-thirds margin and then be approved by Utah voters.
Again, the best option, according to Booher and Zimmerman, would be to do nothing. The existing protections work and do not contribute to delays, according to their analysis.
There is also a practical concern about putting this matter on the November 2010 ballot. Utah voters will be selecting a governor, a U.S. senator, three U.S. House members, state lawmakers and possibly deciding two proposed citizen initiatives. It is doubtful that voters can also give this important issue the attention it deserves.
If lawmakers believe a change is required, they must send to voters an amendment that protects due process rights and affirms the separation of powers among the legislative, administrative and judicial branches of government. The Booher-Zimmerman proposal would achieve those ends.