Increased speed of death row needed

By By Steven Warrick and By Steven Warrick

By Steven Warrick

Attorney General Mark Shurtleff’s office has proposed an amendment to the Utah State Constitution that would limit post-conviction petitions for appeals by guilty inmates while guaranteeing the appeal rights of those inmates who have legitimate claims of innocence. Sen. Curtis Bramble, R-Provo, is sponsoring Senate Joint Resolution 14, a bill that, if passed by the Utah State Legislature, would submit Shurtleff’s proposed amendment to Utah voters. SJR14 would serve to facilitate both the punishment of the guilty and the exoneration of the innocent, and should be passed.

Abusive post-conviction relief actions are petitions filed by inmates after their legally guaranteed appeals have failed and do not involve legitimate claims of innocence or serious procedural errors. Such actions have been particularly problematic in death penalty cases. According to Assistant Attorney General Tom Brunker of the Criminal Appeals Division, such actions can postpone an inmate’s execution some 20 to 30 years after sentencing.

“A lot of these death row inmates are outliving the family members of their victims,” he said.

In 1996, the Legislature attempted to address this problem with the Post-Conviction Remedies Act, which has been amended over the years and is currently numbered as 78B-9-101 to 78B-9-405 of the Utah Code. The act was similar in concept to the Federal Anti-Terrorism and Effective Death Penalty Act, amending 28 Utah Code Sections, which was also passed in 1996. Both acts limit post-conviction relief, in the Utah and federal systems respectively. Likewise, both acts and the legislative limitation of the scope of post-conviction remedies have been held constitutional8212;the PRCA by the Utah Supreme Court in Gardner v. Galetka, and the AEDPA by the U.S. Supreme Court in Felker v. Turpin. Separation of powers is thus not an issue with such legislative limitations.

The problem with the PRCA is that “the courts have consistently granted relief beyond the limitations in the Post-Conviction Remedies Act,” according to Shurtleff. Brunker agrees, stating that the courts like to ignore the procedural limitations of the PRCA so that they can get to the merits of the petitioner’s case. The courts have used a loophole in the Gardner ruling that has allowed them to proceed on individual constitutional claims of action.

SJR14 would close this loophole by means of a constitutional amendment. The courts cannot overrule a constitutional amendment like they can overrule a statute or an ordinary law.

In addition to providing constitutional protection to the limitations the people of Utah have placed on the post-conviction relief process through their elected representatives, the proposed amendment in SJR14 would also provide constitutional protection to the rights of those inmates who are in fact innocent to post-conviction relief. Protecting the rights of the wrongfully convicted is just as important as curtailing abusive post-conviction actions, if not more so.

The PRCA provides statutory protection for post-conviction relief petitions for DNA testing as well as those based on evidence of factual innocence. The Attorney General’s office pushed Sections 78B-9-300 through 78B-9-304, which amended the act, to provide one of the first state-funded programs for DNA testing in the country. Shurtleff’s office actually helped draft Sections 78B-9-401 through 78B-9-405, which amended the PCRA to provide for petitions based on claims of factual innocence.

Since these programs are only statutory, they can be repealed by the Legislature at any time. SJR14 would change this.

“Under the proposed amendment, a person who is innocent has a constitutionally guaranteed right to relief that the Legislature cannot cut off and that is not currently guaranteed,” Brunker said.

SJR14 has been endorsed by the Statewide Association of Prosecutors, the Council on Victims of Crime and the Sentencing Commission. In addition, the Commission on Criminal and Juvenile Justice voted recently to support the measure.

Members of the U community should urge their legislators to vote for SJR14. Likewise, if the resolution makes it onto the ballot, they should vote for the proposed amendment themselves.

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Steve Warrick