Veto Letter to Governor Cox on HB274

Dear Governor Spencer Cox,

The American Civil Liberties Union of Utah (ACLU of Utah) strongly urges you to veto House Bill 274, “Sentencing Amendments.” Among other changes, HB274 significantly increases the number of prosecutor and law enforcement members on the Utah Sentencing Commission (the “Commission”), while stripping defense-side seats, specifically two representing vulnerable populations—the indigent and minors. The Commission’s primary role is to prepare sentencing guidelines for crimes in Utah and to provide input to state policymakers on proposed criminal justice bills and other bills that would impact sentencing in Utah.

As you are aware, federal and state governments have adopted sentencing guidelines to promote fairness and uniformity. Uniform guidelines help alleviate potential unfair variations in sentencing based on factors beyond the individual being sentenced’s control, including the leanings of the sentencing judge and the financial means, race, ethnicity, gender, or other identity traits of the person before the court. Properly vetted guidelines also promote the criminal code’s general purpose of proportionate sentencing and of providing individual rehabilitation assessments.

We are particularly concerned that HB274 eliminates the following Commission members: “an indigent defense attorney, appointed by the Indigent Defense Commission,” and “a juvenile defense attorney, appointed by the Utah Association of Criminal Defense Lawyers.” The bill also removes the seat for “a juvenile prosecuting attorney, appointed by the Statewide Association of Public Attorneys and Prosecutors.” It demotes “the chair of the Juvenile Justice Oversight Committee” or a member of that committee to a nonvoting member, as provided in Utah Code Section 63M-7-401(3)(g)-(o). We are particularly concerned that HB274 eliminates the following Commission members: “an indigent defense attorney, appointed by the Indigent Defense Commission,” and “a juvenile defense attorney, appointed by the Utah Association of Criminal Defense Lawyers.” The bill also removes the seat for “a juvenile prosecuting attorney, appointed by the Statewide Association of Public Attorneys and Prosecutors.” It demotes “the chair of the Juvenile Justice Oversight Committee” or a member of that committee to a nonvoting member, as provided in Utah Code Section 63M-7-401(3)(g)-(o).

Removing dedicated Commission spots from members who have devoted their legal practice to serving indigent and juvenile individuals will undermine the Commission’s ability to advise the Legislature comprehensively. Court-appointed defense attorneys—who are the only lawyers the U.S. Constitution requires Utah to provide—have invaluable insight into the criminal legal system. On May 18, 2021, the press release for your Public Defense Day in Utah Declaration acknowledged that “over 80% of adult criminal defendants and 100% of minors facing juvenile court proceedings are eligible for court-appointed public defenders.” These attorneys appear in criminal courts more often, on more cases, and in more trials than any other defense attorney. They have specialized knowledge of the unique challenges and circumstances faced by indigent and juvenile clients. Importantly, their day-to-day experiences are a crucial bellwether for issues in the criminal system. Removing these dedicated positions needlessly risks losing the advice of the most experienced and knowledgeable criminal defense attorneys in Utah.

Not only does HB274 reduce defense-side representation, but it also triples the number of criminal prosecutors and law enforcement on the Commission, increasing the total number representing both groups from two to seven and giving these groups outsize influence. Having a wide range of voices representing different areas of expertise can only strengthen the Commission’s deliberations. A diverse Commission ensures that its recommendations and work product result from well-informed discussions among members with differing, often opposing, viewpoints. Usually, the Commission’s work product results from building consensus, and, consequently, it rarely releases a guideline or recommendation that reflects a narrow, one-sided position.

HB274’s attempt to reconstitute the Commission to enhance the voices of prosecution and law enforcement will not improve the Commission’s work. Instead, it will cut out critical perspectives from attorneys representing defendants, especially indigent and juvenile defendants, and eliminate passionate stakeholders and expertise in general. As you stated in your Declaration, “[T]he public defense function must be considered an equal and valued partner in the criminal justice system in Utah.” HB274 does exactly the opposite by creating an unequal Commission and specifically devaluing public defense.

Thus, we urge you to stay committed to your values and veto HB274.

Sincerely,

Brittney Nystrom
Executive Director, ACLU of Utah