Calling recent changes ‘unsustainable,’ Cox orders task force to review criminal justice policy

In the last five years, lawmakers have passed on average 40 bills during each 45-day legislative session that either create new criminal offenses or increase the penalty for existing crimes. 

It’s part of a trend that Utah Gov. Spencer Cox calls “unsustainable.” 

This year was no different, with lawmakers introducing 77, and passing 43, bills to either add, enhance or expand criminal penalties. There were just eight bills, six successful, that sought to narrow, reduce or repeal. 

Now, Utah has dozens of new laws and increased penalties in state code. It’s now a class B misdemeanor for a public employee to use public money for union activity; trafficking large quantities of fentanyl is now a standalone first-degree felony; obstructing traffic while failing to comply with law enforcement is now a class B misdemeanor. 

That’s just a taste of the 43 bills that passed this session. A full list of these new bills is available here. 

And while all 43 were signed by Cox, the governor said the volume of changes to the state’s criminal code gives him pause. 

“I’m concerned about the strain this rapid growth in new offenses places on our incarceration resources. I’ve heard from many stakeholders — including law enforcement leaders — that the sheer volume of recent changes has become difficult to manage,” the governor said in his end-of-session letter to lawmakers. “There is also a valid question as to whether these enhancements, absent an overarching strategy, will actually achieve the public safety goals they’re intended to address.” 

To that end, Cox signed an executive order last week creating a new task force aimed at reviewing the state’s criminal justice policy. 

Announced late on Thursday night, the task force will be charged with evaluating “how current criminal justice laws and policies are serving the state — and developing a comprehensive framework — will improve criminal justice efforts in our state,” according to the executive order. 

The task force will consist of the following department heads, or someone they designate to serve in their place: 

• The Commission on Criminal and Juvenile Justice 
• The Utah Department of Public Safety 
• The Utah Department of Corrections 
• The Governor’s Office of Planning and Budget 
• The chair of the Board of Pardons and Parole 
• Any other state agency “deemed necessary to accomplish the Task Force’s responsibilities”

A member of the Utah House of Representatives and Senate will also be appointed to the task force. 

The task force will create a framework for the governor and lawmakers on the Law Enforcement and Criminal Justice Interim Committee to review by October, which per Cox’s executive order, will consider 10 things: 

• Public safety 
• Deterrence 
• Proportionality (meaning punishments should fit the crime) 
• Judicial discretion and consistency 
• Rehabilitation and treatment 
• Recidivism 
• Costs and resources 
• Jail and prison capacity 
• Victim needs 
• Research and data

Then, Utah’s state agencies will use that framework to complete a report, which will be submitted to the committee, on how best to approach criminal justice policy in the state.  

Cox’s task force builds on a bill sponsored by Rep. Ryan Wilcox, R-Ogden, that requires state agencies to review criminal offenses that pertain to the department, then make recommendations to the legislature on what could be repealed or redefined. 

The bill, HB353, is one of the few pieces of legislation passed this year that actually repeals certain criminal offenses, some of which “haven’t been charged in over a decade,” Wilcox said during the session. 

It also moves a number of misdemeanor crimes to an infraction, the lowest criminal penalty in state code.  

Cox said he likes the bill. But it will be one of a handful this year that he allows to go into law without his signature, “not because I don’t like the bill, but because I think we can do even more,” he said. 

A ‘one-way ratchet’ 

During the session, Wilcox told lawmakers during a committee meeting he’s “hyper aware of that one-way ratchet” when it comes to criminal justice policy — meaning, each year lawmakers pass far more bills that create or increase criminal penalties than bills that repeal or reduce. 

So why does it matter? What’s wrong with holding criminals accountable? 

For people like Steve Burton, a defense attorney and director of the Utah Defense Attorney Association, it can sometimes strip the nuance from criminal justice policy. That’s the case particularly for bills that impose mandatory minimum sentences. 

“They treat a lot of people the same,” Burton said, while costing taxpayers thousands of dollars more each year to incarcerate someone, regardless of how the state’s criminal justice policies might evolve. 

And generally speaking, a tough-on-crime approach is just an ineffective way to approach criminal justice, he said. For instance, making a misdemeanor crime a felony means the convicted will have a much harder time finding a job — and having steady employment is one of the main factors in reducing recidivism. 

Plus, keeping people incarcerated longer often increases their social ties with other criminals, another factor that increases recidivism. And, if the convicted person is a parent, that means they’ll be spending less time with their kids — statistically, that heightens the risk that their children will engage in criminal behavior.  

“When we think that we’re being tough on crime, we’re actually often increasing the risk of that person reoffending and creating more victims,” said Burton.  

Plus, harsher sentences can give prosecutors more power in what is supposed to be a balanced system. A harsher penalty means the person charged is more likely to plead guilty to minimize time spent in prison. It depends on the source, but typically just 2% to 5% of cases actually go to trial, with most cases either resulting in a guilty plea or a case being dismissed. 

“With the vast majority of cases being resolved through plea bargain, that means that the decision-making power is in the prosecutor’s hands as to what the ultimate penalty should be. And the more that you increase penalties, the more you incentivize defendants to not take their case to trial,” said Burton.