Utah is unique in the way it handles crime. The intermediate sentencing policy upheld by the state is unlike any other in the nation, and as such has received both praise and criticism. Randy Richards, a prodigious local defense attorney and a proud alumni of the U, sat down with me, and shed light on the benefits of Utah’s indeterminate sentencing policy. He also expressed some criticisms, and offered suggestions for how the current system could be improved.
The major upside of Utah’s indeterminate sentencing strategy is, ironically, the power and independence of the Board of Pardons and Parole. While indignant inmates have denounced the board’s practically absolute authority to set sentences, Richards offers a different perspective.
“The fact that the board doesn’t really answer to anyone enables them to be more fair and more consistent than judges,” he said.
This seemed counter-intuitive to me. Wouldn’t the board have more incentive to issue even-handed rulings if they were held accountable by the public, or the judicial system?
Richards explained the process of attaining and retaining a judgeship. There are eight judicial districts and 70 district judges within the state of Utah. The process of becoming a judge is arduous, and the job itself is less secure than you might think. When a coveted judgeship becomes available, the Judicial Nominating Committee interviews a pool of applicants, and submits five nominees to the governor. The governor then appoints his favorite candidate to serve an initial, three-year term on the bench. After three years, a Judicial Performance Evaluation Committee assesses the judge’s rulings, temperament, conduct and legal knowledge over that three-year period and makes a public recommendation of whether or not the judge should be allowed to keep his position. After the evaluation is publicized, a retention election is held in the judge’s district, and, if elected, they serve an additional six-year term. This process is repeated until the judge is either voted off the bench or they reach the ripe old age of 75.
Most judges strive for the latter, forced retirement option because, upon becoming a judge, they have to abandon their legal practice for an extended length of time. Successful attorneys, such as Richards, who has been practicing law for 30 years, spend decades building up their businesses. To take a three- or nine-year stint as a judge can cripple the clientele base of even the most prominent attorneys.
For most judges, a return to lawyering after serving on the bench marks a regression in income and status. Thus, when a lawyer is appointed to a judgeship, they are highly motivated to maintain that position. The potential for a poor performance review is an ever-looming threat for a judge. It tends to influence their decision-making, and they can become hypersensitive to public opinion as their term ends as the next retention election approaches.
The board, in contrast, is made up of five governor-appointed members who serve staggered five-year terms. The Board of Pardons and Parole does not carry the prestige of judgeship. As Richards put it, “very few people want to grow up to be a board member.” The coupling of these characteristics afford the board insulation from the emotions of the masses and negate any incentive to bend to the capricious will of the political climate.
Furthermore, 70 judges, influenced by their own moods, attitudes, experiences and biases, will interpret the same law in 70 different ways. Richards knows certain judges will be more or less lenient with certain offenders.
“Judge X has a friend whose kid was killed by a drunk driver, and so he is excruciatingly tough on DUI cases,” he said. “If it were up to him, he would throw every drunk driver in prison for life.”
While the board members certainly have their own personal biases, they can temper each other. Studies have shown that when you present a group of people with a jar of gumballs and ask them to guess how many gumballs are in the jar, the average of their estimates will be closer to the real number than any one individual’s. Perhaps the same holds true for estimating justice.
The board’s Achilles’s heel, according to Richards, is its susceptibility to homogeneity. When five like-minded individuals are appointed to the board, they will be prone to agree with one another, which can lead to the same biased sentencing you see among judges. Richards asserts there is a need for “someone to play devil’s advocate, and challenge the thinking of the group.”
To achieve this, the governor could be required to appoint people with diverse backgrounds and experiences. For instance, many board members come from the prosecutorial side of the law, and are more inclined to empathize with police than convicts. If the board were required to include at least one defense attorney, social worker or anyone who is disposed to consider cases from the perspective of the offender, their sentencing considerations would be more thoughtful and holistic.
While there are many well-founded concerns regarding Utah’s indeterminate sentencing policy, it’s not as flawed a system as critical convicts often make it out to be. In my assessment, Utah has the best game in town. Even so, it’s not a game that most of us will ever want to play.