Posted on 08/13/2004 3:28:10 PM PDT by Bonaparte
Deseret Morning News, Wednesday, August 11, 2004
Prison time really up to parole board
Sentencing guidelines are only a suggestion
By Linda Thomson and Amy Joi Bryson
Deseret Morning News
TV commentators on the Fox News Network were reeling Monday night, apparently shocked by the "leniency" of Utah's homicide laws.
One demanded to know why Mark Hacking hadn't been charged with capital murder in the apparent death of his wife, Lori, and suggested the first-degree homicide charge against Hacking might be referred to as "misdemeanor murder."
  Deseret Morning News graphic |
Also debated was the 5-years-to-life sentence a first-degree felony charge carries — with the apparent misunderstanding that Utah judges have the discretion to choose a sentence somewhere along that spectrum.
Not so, say state officials.
Utah has "indeterminate sentencing," which means judges are compelled to impose a particular sentence with a specified range of years in prison — but how long someone remains behind bars is up to the Utah State Board of Pardons and Parole.
"Utah is the purest form of indeterminate sentencing in the country," said board spokesman John Green. "On the other end of the spectrum you have determinate sentencing, where the offender at sentencing knows exactly how much time they are going to serve."
That time is fixed — regardless of the inmate's behavior, including demonstration of remorse, behavior on the inside and potential for rehabilitation.
Constitutionally created, Utah's five-member board of pardons and parole inherits "jurisdiction" over a defendant once he or she is sentenced to serve time in the state prison.
The board, in essence, becomes the sentencing entity for the inmate and determines the length of stay based on a variety of factors including the nature of the crime, whether the inmate shows remorse, his behavior in prison and input from victims.
That means regardless of sentencing guidelines, regardless of a prosecutor's recommendation or even despite a judge's urging, the board can do what it wants.
"The board tends to keep the worst of the worst in longer than the national average, but conversely, other people may do the average national time, or in many times, less," Green said.
In the case of Robert William Labrum, sentencing guidelines recommended he spend 36 months in the state prison for the strangulation death of a 19-year-old woman.
Labrum pleaded guilty to manslaughter, a second-degree felony carrying up to 15 years behind bars, in exchange for prosecutors agreeing to drop other charges, such as obstruction of justice and witness tampering.
In that case of more than a decade ago that bears a resemblance to the Hacking circumstances, Labrum agreed to disclose the location of the body in the deal that was struck.
But when the board looked at the circumstances, it declined to set a hearing date for the possibility of parole to be discussed.
The board kept Labrum behind bars the full 15 years, and Utah Supreme Court justices said during a challenge that sentencing guidelines do not have the "effect of law." Any expectation of release, they said, is "tenuous."
"The defendant needs to be careful, because if the defendant relies solely on deals that are cut by the prosecution and defense attorneys, it may or may not be carried out by the board," Green said. "The board is its own entity and is not controlled by agreements."
Judges in Utah's district courts have been known to remark at sentencing hearings that the prison term they are about to impose is beyond their control, an apparent expression of regret that it couldn't be longer or shorter depending on the crime.
Most defense attorneys wouldn't characterize Utah's laws as lenient.
"If anything, our laws over the last several years have become much harsher than they were before," said veteran defense attorney Earl Xaiz. "We have more mandatory minimum sentences, and a lot of enhancements (extra time in prison for certain characteristics in a crime) have been added.
"I don't think our statutory penalties in Utah are lenient by any standard," Xaiz said. "People who say they are probably don't know much about the law here."
Xaiz points to federal court, where judges actually can designate sentences. "If a judge says, 'Eight years,' then that's pretty much that, barring some good time and sometimes early release. In state court, it's totally the opposite," Xaiz said.
The indeterminate sentencing/powerful board of pardons arrangement was designed by the Utah Legislature when it crafted the state constitution.
"One of the philosophies behind that principle is once a person is sent to prison, they (legislators) felt it would be better for the board of pardons down the years to decide how many years within a limit should be imposed based upon a person's conduct after the sentencing," Xaiz said.
Once imprisoned, an individual can try to favorably influence the board of pardons.
"The idea was to examine, 'Look what he's done in the meantime to better himself,' " Xaiz said. " A lot of people disagree with that — judges would like to have the ultimate decisionmaking authority. But on the other hand, there are times when judges think this is an equitable way to decide how long somebody should stay in prison."
Often, a letter from a judge or prosecutor recommending less time can be helpful to an inmate when going before the board of pardons, while a letter stating that the individual is a danger and should serve the full term can be detrimental, Xaiz said.
While media pundits and the public often criticize prosecutors and judges for decisions made in the courtroom in the heated attention surrounding a high-profile case, ultimately, the board has the final say.
When Shelly Flemal agreed to plead guilty as charged to first-degree felony murder in the death of her 3-year-old daughter, Courtney Jo, Weber County prosecutors in exchange recommended she serve six years.
There was public criticism at the perceived leniency — even though national statistics show, on average, mothers who deliberately kill their children seldom serve longer than that.
No matter.
Board members reviewed her file a few months after she arrived in prison and decided they didn't want to grant her a hearing until eight years later — in January 2005.
Similarly, Ogden teenager Doug Anderson pleaded guilty to aggravated murder in the strangulation death of a 5-year-old girl.
While the sentence carried the possibility of parole, the board read the file and declined to set a hearing date.
"The board voted natural life, which means he'll die in prison," Green said.
E-mail: lindat@desnews.com; amyjoi@desnews.com
© 2004 Deseret News Publishing Company
pong!
Lori Hacking pinglist--if you want on or off, let me know via freepmail. Interesting commentary on Utah's penalty laws...
Let's get him INTO PRISON first and foremost.
(think about "parole" later......or maybe not. hehehehe.)
I believe State v. Herrera is still controlling case law for such a plea.
Here is an interesting discussion of one strategy used by defense in a tight spot like this.
It's certainly an interesting article. Utah's prison system isn't at the mercy of liberal judges. OTOH, the media should STFU and try to be accurate in their alleged reporting.
Thanks for posting some useful and relevant info.
Amen to that!
When you click on a Bonaparte post, you have always backed into a full service bay. :-)
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