SENTENCING COMMISSION MINUTES

Committee Utah Sentencing Commission

Date Time Location

Wednesday, January 6, 2016

Noon – 2 p.m.

Utah State Capitol, Senate Caucus Room

Members Present

Patrick Anderson, Judge Mark Andrus, Chyleen Arbon, Craig Barlow, Shima Baughman, Chief Craig Black, Paul Boyden, Susan Burke, Darin Carver, Rollin Cook, Al Emery, Scott Garrett, Ron Gordon, Rachelle Hill,

Rep. Brian King, Judge Julie Lund, Richard Mauro, Peter Stirba, Senator Dan Thatcher, Judge Vernice Trease, Pam Vickrey, Christina Zidow

Members Excused

Judge Michele Christiansen, Sen. Gene Davis, Judge Thomas Low, Rep. Marc Roberts, Sheriff James Tracy

Staff & Visitors

Staff: Jo Lynn Kruse, Sofia Nystrom, David Walsh, Doreen Weyland

Visitors: Dan Blanchard, Anna Brower, Gerri Miller-Fox, Mike Haddon, Wayne Jones, Matt Lloyd, Marina Lowe, Rick Schwermer

Agenda Item Welcome – Approval of Minutes Notes Peter Stirba called the meeting to order and welcomed everyone. Craig Barlow made the motion to approve the

December minutes. Patrick Anderson seconded the motion which passed unanimously.

Agenda Item Recognition of Northern Region, Logan & Brigham City AP&P Notes Jennifer recognized AP&P’s Northern Region for their contribution and work on JRI (Justice Reinvestment

Initiative). A few of the AP&P agents related touching experiences where offenders responded affirmatively to the JRI program and the effects of experiencing positive interactions with their parole/probation officers. Patrick Anderson will serve as co-counsel with his wife, Joan, at the Supreme Court in February, and thus will not be in attendance at the Monday meetings during the legislative session. Richard Mauro has agreed to substitute for Patrick on the executive committee until he returns. Senator Thatcher made the motion to approve Richard Mauro as a substitute for Patrick Anderson. Rollin Cook seconded the motion which passed unanimously.

Wayne Jones, Assistant Attorney General, presented proposed changes to §76-6-502(4). The proposal aims to amend the current provision that prohibits the transfer of false identification documents to include possession of false identification documents with intent to transfer them. Utah’s controlled substance statute takes this approach. As with illegal drugs, intent to transfer can be established by circumstances surrounding the possession, by general admissions of intent, or by other relevant facts.

Agenda Item JRI Implementation Issues (tape 30:00) Notes Rollin Cook took a moment on the Sentencing Commission’s behalf, to thank Jennifer for her leadership and

countless hours of work on the Justice Reinvestment Initiative. Criminal History Scoring –

We are about 100 days into JRI now. Many training sessions have been conducted and some issues have come to light. Jennifer presented a document titled Frequently Asked Questions And Answers Regarding the 2015 Adult Sentencing & Release Guidelines and changes to Addendum B and requested feedback. Judge Andrus made the motion to revise Addendum B to more accurately reflect the misdemeanor crimes which were not included

previously. The motion was also to post it on the Sentencing Commission website rather than republish the Guidelines entirely. The revised Addendum B may be viewed on the Public Meeting Website http://www.utah.gov/pmn/index.html. Paul Boyden seconded the motion which passed with one no vote from

Patrick Anderson. Christina Zidow made the motion to approve the FAQ Sheet essentially as the position of the Commission with respect to the guideline issues that have been raised. Chyleen Arbon seconded the motion which passed unanimously.

Jennifer played a short video clip regarding transformations and avoiding the “fear cycle” from a presentation by Frasier Bullock called Operational Excellence. https://youtu.be/JFo7Xtv_bLU?t=28m28s

Pre-Sentence Reports – (tape 46:00)

Gerri Miller-Fox discussed issues and possible remedies for pre-sentence reports. JRI changes have created a significant work-load impact for AP&P agents. She has been meeting with agents and getting their input. She is working on improvements. More funding may be needed and she is hopeful to attain that during the legislative session. One option for DUI cases, cases involving violence, and domestic violence, may be a sentencing memorandum to provide to the courts or a shorter version of a PSI. Hopefully this can be worked out with the JRI

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Implementation Task Force at the next meeting. Legislative Recommendations – Jennifer discussed misdemeanor reclassification which has been discussed

over the last few years and has culminated in a full review of all Class C offenses. Jennifer distributed the full list which contains the Sentencing Commission’s position: The Sentencing Commission recommends that the Legislature recodify all simple traffic and boating offenses (and local ordinances regulating similar conduct) that are classified as Class C Misdemeanors, as Infractions. These are strict liability regulatory offenses and should not carry jail consequences. Other direct and collateral consequences (points accumulation, license suspension) available in this highly regulated area and a financial consequence, are sufficient consequences. Only those traffic offenses involving a direct threat to public safety as a result of improper operation of a motor vehicle should be retained as Class C Misdemeanors. The Sentencing Commission further recommends that the Legislature remove traffic infractions from the definition of “criminal activity” for purposes of restitution, codifying the rule of State v. Robinson. The full list may be viewed on the Public Meeting Notice website, http://www.utah.gov/pmn/index.html. Chief Black had concerns about the intoxication section and made the motion to retain 76-9-701 and 76-9-701(1) as a Class C. Judge Andrus seconded the motion which passed unanimously.

Rick Schwermer noted that 41-12A-303.2, 41-12A-303.2(2) No Proof of Insurance, and 41-12A-303.3(2) No Proof of Insurance – 2

nd or subsequent offense and 41-12A-303.3 Provide False Evidence of Insurance, should not be a

crime and asked for consideration to make infractions. Senator Thatcher made the motion to change those to infractions. Patrick Anderson seconded the motion which passed unanimously.

Susan Burke pointed out that Speeding in a School Zone is a Class C on page 3 of the misdemeanor revisions, yet on the draft of 41-6a-601 Speed Regulations –Safe and appropriate speeds at certain locations, it appears as an infraction. It is ambiguous. Peter stated that this has not been adopted by the Commission. All agreed that it should remain a Class C. Judge Andrus made the motion to adopt the revisions with changes made today. Chief Black seconded the motion which passed unanimously.

Pam Vickrey updated everyone about the draft of 78A-6-1101 Violation of order of court –Contempt—Penalty, the Valid Court Order exception for status offenses which the Juvenile Justice Subcommittee has been discussing. There will be changes in 2016 to eliminate the VCO exception with reauthorization of the OJJDP Act. There is no sponsor nor any bill drafted which has consensus now. Ron Gordon suggested that we look at the policy on its face even though UBJJ could lose funding if Utah does not comply. No vote was taken today. The Anomalies Subcommittee presented a draft of 77-38-3 Notification to victims – Initial notice, election to receive subsequent notices – Form of notice – Protected victim information – Pretrial criminal no contact order. Questions arose whether it is appropriate to encourage prosecutors to address restitution sooner without limiting the victim the ability to receive restitution. Training needs to occur with judges and prosecutors to address restitution sooner than later. It appears that (5)(a) is written inconsistently and vague which creates problems. There is also a problem with 5(v) subsection d. Patrick Anderson said it needs to be rewritten. No vote was taken. The Anomalies Subcommittee will continue to meet with Crime Victims, prosecutors, and other interested parties to try to reach a resolution regarding the issue from State v Poole.

Next Meeting The next meeting of the Sentencing Commission will be the Annual Meeting on April 6, 2016 at 8 a.m.,

Utah State Capitol Bldg., Senate Caucus Room. Minutes prepared by Jo Lynn Kruse – Administrative Assistant, CCJJ

SENTENCING COMMISSION MINUTES

Committee Utah Sentencing Commission – Annual Meeting

Date Time Location

Wednesday, April 6, 2016

8 a.m. – 4 p.m.

Utah State Capitol, Senate Caucus Room

Members Present

Patrick Anderson, Judge Mark Andrus, Chyleen Arbon, Craig Barlow, Shima Baughman, Paul Boyden, Susan Burke, Darin Carver, Judge Michele Christiansen, Rollin Cook, Senator Gene Davis, Al Emery,

Scott Garrett, Ron Gordon, Rachelle Hill, Rep. Brian King, Judge Julie Lund, Richard Mauro,

Rep. Marc Roberts, Peter Stirba, Senator Dan Thatcher, Pam Vickrey

Members Excused

Chief Craig Black, Judge Thomas Low, Sheriff James Tracy, Judge Vernice Trease, Christina Zidow

Staff & Visitors

Staff: Mary Lou Emerson, Jo Lynn Kruse, Holly Langton, Cuong Nguyen, Sofia Nystrom,

Jennifer Valencia, David Walsh, Doreen Weyland

Visitors: Dan Blanchard, Nathan Brady, Anna Brower, Mike Haddon, Raechel Lizon, Mariah Noble, Christian Sarver, Rick Schwermer

Agenda Item Welcome and Approval of Minutes, Review of by-laws

Notes Peter Stirba called the meeting to order and welcomed everyone.

Senator Thatcher made a motion to approve the January minutes. Craig Barlow seconded the

motion which passed unanimously.

Peter Stirba drew our attention to the by-laws, which were approved in June 2012. Patrick Anderson

made the motion to reaffirm the bylaws. Rich Mauro seconded the motion, which passed unanimously.

Agenda Item Updates (tape part 1)

Notes Legislative Session –

Jennifer noted that the Sentencing Commission had four priority bills. Three passed: HB404 – Crime Victim Restitution Amendments, SB187 – Reclassification of Misdemeanors, and SB206- Cohabitant

Abuse Procedures Act Revisions. HB487 - Criminal Code and Criminal Procedure Amendments did not

pass.

House Bills that the Sentencing Commission supported: HB16 – Offender Registry Amendments, HB105 – Human Trafficking Revisions, HB179 S01 – Consensual Sexual Activity of Minor, HB206 S01 –

Human Trafficking Safe Harbor Amendments, HB259 S01 – Substance Abuse Treatment Fraud

Amendments, HB260 – Sexual Exploitation of a Minor Amendments, HB342 – Substance Abuse Programs Amendments, HB344 S01 – Move Over Amendments, and HB405 S02 Juvenile Sentencing

Amendments.

Senate Bills that the Sentencing Commission supported: SB82 S03 – Child Welfare Modifications, SB106

S01 Assault Offense Amendments, SB124 – Gang Enhancement Provision Amendments, SB158 – Juvenile Court and Child Abuse Amendments, and SJR 10 – Joint Resolution on Education for Law

Enforcement Professionals.

The 2016 Legislative Session yielded two new 2nd degree felonies, six new 3rd degree felonies, three new Class A Misdemeanors, four new Class B Misdemeanors, four new Class C Misdemeanors, forty

one new infractions, nine new fines or fees and one new anticipated prison admission per year. The

anticipated fiscal impact is $98,685,000.

Juvenile Justice Subcommittee – (tape part 1, 57:30)

Pam Vickrey briefly discussed juvenile brain development. She also discussed SB45 – Compulsory

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Education Revisions, which did not pass the House but is an issue the Juvenile Justice Subcommittee

discussed, but did not reach consensus. This bill would have amended penalties for a parent of a truant school-age child; amended requirements related to excusing a home-schooled

student; amended provisions related to a violation of a court order by a habitual truant; and make

technical and conforming changes. Detention does not address the underlying causes of status-

offending behavior and may even exacerbate those causes. Finding solutions remains the concern.

Pam presented recommendations that juvenile status offenders should be viewed and treated

differently by the juvenile justice system. Pam reviewed 10 national recommendations for states to prevent a juvenile record from following a juvenile offender into adulthood, and confidentiality of court

records and Utah’s status in comparison to other states.

Pam further explained the basis of HB405, which prohibits sentencing an individual under 18 years of

age to life in prison without parole. This law brings to 16 the number of states that ban life-without-parole sentences for people who were younger than 18 at the time of their crimes.

Pam thanked Darin Carver, Krista Airam, Dawn-Marie Rubio, Susan Burke and Debbie Whitlock for their

extensive and substantial work on the Juvenile Guidelines.

Darin presented several slides with data obtained from JAOC: Delinquency History Score Data by Risk

Level data, the tentative matrix of Presenting Offense Columns, and Percentages of Youth by Row and Risk Level on the Draft Juvenile Matrix. The goal of revising the matrix is to provide a more validated

approach in making a better informed recommendation to the court. The new matrix should enable a

more objective approach rather than a subjective one.

The Commission reviewed a final draft of Aggravating and Mitigating Factors for youth. There is still more work to be done. Ron Gordon mentioned that PEW is close to accepting to help Utah revamp the

Juvenile Justice System similar to the help Utah received for the Adult Justice System. The Commission decided to wait on a vote of approval on the draft, knowing that PEW is sure to review it if

they agree to help.

Department of Corrections – (tape part 1, 2:19)

Mike Haddon gave an overview of prison population growth. Admissions for (new crimes and violations) were 2,803 during 2015. Although nearly split in half in 2015, more admissions were for

condition violations. The average release length of stay for the inmate population was 2.7 years. This

is the highest average over the past 30 years of being tracked.

Length of stay for 1st degree felonies and all degrees of sex offenders has changed the most over the past 30 years. For probationers admitted to prison in 2015, there is a nearly even split between

admissions for conditions violations and admissions for new crimes. Parolees returned to prison are historically far more likely to be returned for conditions violations than for new crimes.

Board of Pardons & Parole – (tape part 2) Chyleen Arbon thanked Raechel Lizon for putting the presentation together. Chyleen then reviewed

recommendations from the February 2016 Legislative Audit.

The BOP is moving toward evidence –based practices. Many of the recommendations may require

multiple years to implement and require ongoing support of partners such as CCJJ. The BOP is focused on permanent system improvements rather than temporary fixes. Additional financial

resources will be necessary, including ongoing funding.

Chyleen also discussed implementation of the Justice Reinvestment Initiative at the Board of Pardons,

including: New Sentencing Guidelines, Credit for Time Served, Earned Time Program, Incentive and Sanctions Matrix and Earned Compliance Credit.

BOPP has worked to fully implement JRI during the previous year. This process has led to the request

for the wording change of ‘immediate’ to better and more effective ensure community safety and assist

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offenders. The word “immediate” is hard to define. The Guideline Subcommittee will discuss and

assess this issue.

Agenda Item National Association of Sentencing Commission’s Annual Meeting (tape part 3 1:25)

Notes Jennifer Valencia announced that the Annual National Association of Sentencing Commissions (NASC)

Conference will be held at the Little America Hotel in Salt Lake City. The Conference is scheduled for August 7th – 9th. Utah will be hosting a reception on Sunday evening at the U of U. Please encourage

as much local participation as possible. Utah is also responsible for planning at least one break-out session, maybe more.

Agenda Item Pre Trial Release Practices Research (tape Part 3)

Notes Shima Baughman gave a presentation on Pre Trial Release Practices Research. The United States is

the only country that has money bail.

Shima noted that PEW helped the state of Kentucky with Pre-trial Diversion and is viewed as a success

story. Kentucky has a Social Work Pilot Project in which Social Workers are placed at the public defender’s offices throughout the state and help treat offender’s “root” problems. Kentucky has saved

millions of dollars in incarceration costs and court costs.

The American Bar Association (ABA) has three major principles for pretrial release standards: Enunciate a policy and presumption favoring release of the accused, Abolishment of compensated

sureties for release (bail bondsmen), and Establishment of a comprehensive pretrial release service agency.

Pretrial release is a broken system that costs us money every day. There are alternatives that can save money without endangering the public. We will get opposition from bail bondsmen. A more public

process to educate on the issue will gain more support. If Senator Hillyard will not run this bill again,

Senator Thatcher indicated he will.

Agenda Item Justice Reinvestment Initiative Implementation Task Force (tape part 3 40:00)

Notes Doreen Weyland and Sofia Nystrom discussed selected JRI quarterly performance measures. Salt

Lake, Weber and Washington counties are hub jails. Cache and Davis counties are doing their own

screenings.

The next priority was to get a pre-trial instrument and use the PSA court instrument. Next steps include looking to the Crime and Justice Institute or develop an Implementation task force that we put

together. Eight grant awards have been made thus far to mostly rural areas. Four items suggested

for consideration by Weber County are: Criminal history should have a more graduated point system at the higher end, DUI should be listed as a person crime, a drug specific matrix should be developed

and possession of a weapon should be an aggravating factor even if not used in the crime.

The JRI task force meets monthly. These items will be discussed at the JRI task force and also by the Guidelines Subcommittee.

Agenda Item RIM Continuing Research by U of U Criminal Justice Center (part 3 tape 1:10)

Notes Christian Sarver, Senior Research Analyst from the Utah Criminal Justice Center (UCJC) gave a presentation on Utah’s Response and Incentive Matrix: Stakeholder Perceptions. Christian spoke about

Risk Reduction, Effects of Risk Needs Responsivity (RNR), Implementation of Evidence Based Practices (EBP), and Five Strategies for Implementation of EBP. Christian also discussed stakeholder perceptions

of the RIM Pilot.

EBP has been around for a while, but it doesn’t mean it is happening. UCJC wants to monitor how

implementation is going and provide feedback. Surveys are going out statewide and UCJC will conduct offender interviews. They won’t be available until the end of the year or first of next year.

Agenda Item Public Comment (tape part 3 1:31)

Notes Public comment was requested and placed on the agenda, but no public comments were made.

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Agenda Item Discussion, Prioritization & Delegation of Items to Subcommittees (tape part 3 1:32)

Notes The Commission discussed forming a Guidelines Subcommittee to address issues that Doreen and Chyleen brought up. The following volunteered: Chyleen Arbon, Pam Vickrey, Dan Blanchard, Darin

Carver, Craig Barlow, Rich Mauro, Judge Trease and Scott Garrett. Peter made the motion to form that subcommittee. Senator Thatcher seconded the motion, which passed unanimously.

The Anomalies, Misdemeanor and Juvenile subcommittees are already constituted.

The following issues were suggested as potential interim study items: SB 107 – Senator Thatcher asked this subject be put on the June Interim agenda, also Civil Asset

Forfeiture. We also need to obtain support from CCJJ and Law Enforcement on Pretrial Release.

Chyleen asked for clarification on expungement – perhaps a joint working group with CCJJ and USAAV.

Jennifer suggested that due to State v Ainsworth, we should work on addressing the measurable

metabolite section of the statute as it was declared unconstitutional under uniform operation of laws. HB475 – Driver License Amendments attempted to address that issue but did not pass.

Rich Mauro suggested further efforts on SB189 Death Penalty Bill.

Patrick Anderson suggested revisions to the Shoplifting statute. Enhancements are problematic due to the low amount on the third violation which sometimes results in prison commitments for items that

are very low in value.

Rich Mauro has suggested a number of times that Aggravatiing and Mitigating Circumstances on the

matrix, forms 2 and 4 have not been revised in years. They are really outdated and need to be updated to reflect the changes that have occurred elsewhere in the Guidelines.

Judge Christianson and Pam Vickrey mentioned strict liability sex offenses for juveniles were recently

addressed in a Utah Court of Appeals decision which went into some detail on brain development. The

question is whether the strict liability cut points are based on any research or just an arbitrary number which was picked a long time ago. Is there any basis to retain those age points? Pam suggested

maybe we should look at perhaps graduated sanctions based on the similarity in age of the victim and offender.

Jennifer indicated that she attended a meeting with Weber County including many representatives on the proposal Doreen explained. They are concerned about distribution offenses due to JRI and that

there isn’t enough of a graduated approach between possession offenders and distributors. Coordinate with Prosecutors on the Weber County proposal.

Next Meeting The next meeting will be on June 1, 2016, Utah State Capitol Bldg., Senate Caucus Room Minutes prepared by Jo Lynn Kruse – Administrative Assistant, CCJJ

SENTENCING COMMISSION MINUTES

Committee Utah Sentencing Commission

Date Time Location

Wednesday, June 1, 2016

Noon – 2 p.m.

Utah State Capitol, Senate Caucus Room

Members Present

Patrick Anderson, Judge Mark Andrus, Chyleen Arbon, Craig Barlow, Chief Craig Black, Paul Boyden,

Susan Burke, Darin Carver, Judge Michele Christiansen, Mike Haddon for Rollin Cook, Sen. Gene Davis,

Al Emery, Scott Garrett, Ron Gordon, Rachelle Hill, Rep. Brian King, Judge Thomas Low, Richard Mauro,

Peter Stirba, Senator Dan Thatcher, Judge Vernice Trease, Pam Vickrey, Christina Zidow

Members Excused

Shima Baughman, Judge Julie Lund, Rep. Marc Roberts, Sheriff James Tracy

Staff & Visitors

Staff: Krystal Hazlett, Jo Lynn Kruse, Holly Langton, Dr. Ben Peterson, David Walsh, Doreen Weyland

Visitors: Dan Blanchard (AP&P), Anna Brower (ACLU), Larry Haefeli (SL Co Probation)

Agenda Item Welcome – Approval of Minutes Notes Peter Stirba called the meeting to order and welcomed everyone. Susan Burke made the motion to approve the

April minutes. Craig Barlow seconded the motion which passed unanimously.

Agenda Item Review of Subcommittee Notes and Votes Notes Legislation Development Status & Consensus Building Strategy–

Jennifer Valencia noted the two handouts referred to as Subcommittee Notes & Votes, from May and June. The May notes discussed 2016 legislative bills that did not pass. Additional issues identified by the Sentencing Commission were: Aggravated Kidnapping §76-5-302, Felony Theft §76-6-412, Strict Liability Juvenile Sex Offenses §76-5-402.1 & §77-2-9(2), Criminal Accounts Receivable Recodification, and Amounts/weights in Drug Distribution Offenses. The June notes covered the following: The Guidelines Subcommittee voted unanimously in support of removal of the word “immediate” from the exceptions to the graduated sanction caps contained in Form 10. Members will solicit feedback regarding the inclusion of a presumptive definition of substantial public safety threat. The subcommittee also expressed no interest in further nuancing the crime categories (columns) in the Guidelines to better reflect the distinction between possession offenses and distribution or manufacturing offenses. Some interest was expressed in establishing presumptive amounts for distribution offenses in order to distinguish between possession and possession with intent to distribute. Members will further discuss these issues with their respective groups and report back as to any consensus. Other topics discussed were: A proposed alternative version of the RIM, Pre-Trial and Parole release decision making tools, and an info-graphic explanation of various tools at various stages illustrating JRI impacts to be included in this year’s Guidelines. Issues under advisement are: Work with the Judicial Council on the selection of a statewide pre-trial tool, a complete review of the aggravating and mitigating circumstances, the issue of earned compliance credits for both sex offenders and DUI offenders, and offenders who are eligible for such credits appear to be more actively engaged in supervision and more compliant with case action plans. The Anomalies Subcommittee addressed two specific proposed pieces of legislation regarding felony theft and aggravated kidnapping. Jennifer will follow up with locating more specific information on the two cases she is aware of and will locate the Pew/CCJJ data slides which were presented in 2014 and forward any information to the group via email. Also discussed was a proposed amendment to the aggravated kidnapping statute. The subcommittee voted unanimously to take both issues under advisement and encourage further discussion with respective groups. Next meeting is June 21 at noon. The Misdemeanor Subcommittee discussed the most recent draft of criminal accounts receivable, scheduling meetings with OVC, SWAP, and AP&P. Also discussed were expunction, and driver license issues. Judge McCullagh will review the 2012 and 2014 legislation and prepare a draft for the next subcommittee meeting to consider. Next meeting on July 29 at noon. The Juvenile Justice Subcommittee discussed two specific proposed pieces of legislation regarding delayed reporting of sexual offenses committed while a juvenile; and strict liability for juvenile sex offenses between juveniles of a similar age. General consensus was expressed that alleged juvenile offenses should be filed in juvenile court. A revised draft will be circulated to the group for further review. Unanimous support was expressed to pursue legislation in this area. Once a draft is finalized further meetings with specific legislators will be held to determine whether legislative support exists. Additional discussions regarding the revised draft of Juvenile Disposition Guidelines followed. The next Juvenile Justice Subcommittee will be held on June 17 at noon.

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Agenda Item Update from JRI ITF (tape 19:45) Notes Doreen Weyland noted that the JRI Implementation Task Force is moving forward and meeting monthly. Doreen

presented a handout regarding treatment money (4.5 million appropriated to the Division of Substance Abuse and Mental Health for treatment funding for JRI clientele). The funds went out to local area authorities (13 of them) and are formula based. Some counties are combined. The counties are required to make a 20% match and file an annual plan online. The funding will be tracked to ensure that the money goes to the treatment side of JRI clientele. Performance measures will also be tracked. Part of the 4.5 million was ongoing whereas 1.5 million was one-time out of the 2015 general legislative session. This last legislative session, the 1.5 million was moved to ongoing. Approximately $4,000 will be available to JRI clients through Medicaid. The Risk & Needs Screening that is taking place in the jails is almost complete. There are three independent jails, Salt Lake, Cache and Davis, who do their own screening of their own population. Three jails are the “hub jails” and are doing screening for satellite jails (Weber, Utah and Washington counties). Weber is fully functional with all their satellite jails, Utah county is functional with only one satellite at present and Washington is working on connectivity. The Pre-trial Instrument was the Commission’s priority B, with CPIP monies, and an application to the Arnold Foundation. The Arnold Foundation did not choose Utah for this year to have the PSA Court Instrument in place. We worked with CJI on the possibility of developing an instrument. The bid came in and it’s quite high. Doreen presented it to the Commission and there was a motion that we involve the judicial council’s pre-trial release and supervision standing committee, to make a recommendation back to the Commission. So as soon as that standing committee has its membership assigned, we hope to meet with them and show them what we’ve got set up in the jails and possibly identify an instrument that will work with us. It may end up eventually that there will be a Utah Instrument; it’s all to be decided. The courts are speaking with the Arnold Foundation on the possibility of having Arizona, who has fully implemented the instrument, to come up and be the TA’s for Utah and allow Utah to have access to this instrument. Doreen is looking for grants and other resources. There is a focus on trying to get a certification process for drug treatment in place.

Agenda Item 2015 Sentencing Guidelines Analysis (tape 48:00) Notes Early Feedback Received –

1. All prior conduct should be limited to past 10 years 2. Add a category for 5+ felony convictions (10 points) 3. Add Class B priors back in, but weight them lower 4. Separate supervision categories (positive supervision history and negative supervision history) 5. Person crime with injury (4 points) should require “substantial bodily” injury 6. Consolidate Form 1 and Form 5 7. Forms 2 & 4 need comprehensive review, outdated language and concepts 8. 2

nd and 3

rd Degree “Other” should be nuanced to address distribution separately from theft, property, etc.

9. Add all person crimes to Addendum B specifically (don’t just reference the habitual offender statute) 10. Add “+” to Form 10 on the line listing the number of hearings before the Court or Board. It should be the nature of violations, not the number of violations which is determinative. Member Discussion – Some raised concern about juveniles, which we did not discuss last year

Five felony convictions – would like to see more points listed there Public Comment – No public comments were made.

Priorities for Guideline Subcommittee – Review current forms 2 and 4 first

Selection of a statewide pre-trial tool The issue of earned compliance credits for both sex offenders and DUI offenders Offenders who are eligible for such credits appear to be more actively engaged in supervision and more compliant with case action plans. Compliance by all offenders would appear to be of equal importance. Request that the DUI Subcommittee of USAMHAC address the issue of DUI supervision time credits first and take both issues under advisement.

Agenda Item NASC Conference August 7 – 9, 2016 (tape 1:21) Notes Suggestions for Speakers/Topics – If you have any ideas or suggestions for panelists, please contact Jennifer.

Volunteers to assist during conference – Judge Christiansen suggested that Law students may be able to

volunteer. Also Jennifer would like as many from the Sentencing Commission that can come to do so. Generating local interest/participation – Jennifer encouraged the Commission to get the word out about the

conference to their respective communities.

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Next Meeting The next meeting of the Sentencing Commission will be on August 3, 2016 at Noon, Utah State Capitol Bldg., Senate Caucus Room.

Minutes prepared by Jo Lynn Kruse – Administrative Assistant, CCJJ

SENTENCING COMMISSION MINUTES

Committee Utah Sentencing Commission

Date Time Location

Wednesday, August 3, 2016

Noon – 2 p.m.

Utah State Capitol, Senate Caucus Room

Members Present

Patrick Anderson, Judge Mark Andrus, Chyleen Arbon, Craig Barlow, Paul Boyden, Susan Burke,

Judge Michele Christiansen, Mike Haddon for Rollin Cook, Sen. Gene Davis, Scott Garrett, Ron Gordon,

Rachelle Hill, Rep. Brian King, Judge Thomas Low, Judge Julie Lund, Richard Mauro, Rep. Marc Roberts,

Peter Stirba, Senator Dan Thatcher, Sheriff James Tracy, Pam Vickrey, Christina Zidow

Members Excused

Shima Baughman, Chief Craig Black, Darin Carver, Al Emery, Judge Vernice Trease

Staff & Visitors

Staff: Mary Lou Emerson, Jo Lynn Kruse, Holly Langton, Angelo Perillo, David Walsh, Doreen Weyland

Visitors: Susan Allred, Dan Blanchard (AP&P), Nathan Brady, Len Engel, Judge McCullagh, Rick Schwermer

Agenda Item Welcome – Approval of Minutes Notes Peter Stirba called the meeting to order and welcomed everyone. Rachelle Hill made the motion to approve the

June minutes. Patrick Anderson seconded the motion which passed unanimously.

The Commission recognized Sheriff Tracy for his service on the Commission from 2014 – 2016. Sheriff Tracy expressed his appreciation to the Commission and hopes that the good work of the Commission would continue. A new representative of the Sheriff’s Association has not been selected yet.

Agenda Item Review of Subcommittee Composition and Membership (tape 3:00) Notes The Commission reviewed the handout Current Composition of USC Subcommittees & Working Groups. Peter

Stirba asked for a motion at the conclusion of the updates to confirm the current composition of subcommittees; to approve Rich Mauro to serve on the Death Penalty Working Group of CCJJ; and for future revisions or additions to membership to be approved by the full Commission.

Agenda Item Legislative Proposals from Subcommittees & Request for Sponsors (tape 5:10) Notes Judge McCullagh discussed the draft of Criminal Accounts Receivable Recodification, including revisions to 76-3-

201. The Commission reviewed three versions, the current draft as it would appear in code if adopted (on white paper); the red line draft with all edits (on yellow paper); and the original statute (on tan paper). This legislation seeks to address the issue which is included in the “Dear Colleague” letter sent to all state court administrators nationally from the Department of Justice, which strongly cautions against the constitutionality of using jail time for the nonpayment of a fine or fee. This legislation would separate fines and court costs from probation terms and restitution to victims would still be included in probation terms. Susan Burke noted that this is an issue that the Juvenile Subcommittee should look into as well if there is potential liability for continuing to collect fines and fees through the use of incarcerative sanctions. Rich Mauro made the motion to favorably adopt the changes to the draft. Judge Christiansen seconded the motion which passed unanimously. Senator Thatcher asked Nathan Brady to open a bill file.

Pam Vickrey reported that the Juvenile Subcommittee has been working on 77-3-406, and asked for the Commission’s approval of the draft as presented. The draft states that the minimum mandatory would not apply to sex offenses and gives the district court the ability to look at a case and impose what would have been available at the time the crime was committed. This bill would provide a second layer of discretion. The Commission had some concerns with subsection (f) on the last page of the draft. No vote was taken. Patrick Anderson discussed proposed drafts of 76-6-412 Theft, and 76-5-302 Aggravated Kidnapping. The theft draft struck the following language: (a) (iii) actor is armed with a dangerous weapon, as defined in Section 76-1-601, at the time of the theft and added under (b) (ii) the value of the property or services is or exceeds $500. Representative King made the motion to approve changes as presented on the Theft Offenses draft. Craig Barlow seconded the motion which passed unanimously.

Patrick also discussed changes to the Unlawful Detention Amendments. The initial proposal was to strike unlawful detention as a predicate offense to aggravated kidnapping. The compromise reached with the exception of one vote in opposition was that in addition to striking unlawful detention as a predicate offense to aggravated kidnapping, a new offense of aggravated unlawful detention would create a 2

nd and 3

rd degree felony, dependent

upon the underlying conduct. The main difference between unlawful detention and kidnapping being whether the victim was detained for a “substantial” period of time. Paul Boyden made the motion to approve the changes on the proposed draft. Senator Thatcher seconded the motion which passed unanimously, with Rachelle Hill abstaining.

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Agenda Item Creation of Expungements Working Group (tape 48:00) Notes Mike Haddon from the Department of Corrections requested to be included in the Expungements Working Group.

Judge Andrus made the motion to approve the composition of the Expungements Working Group as detailed on the yellow handout and to also include Mike Haddon. Susan Burke seconded the motion which passed unanimously.

Agenda Item Approval of Rich Mauro to Participate in Death Penalty Study (tape 51:00) Notes Patrick Anderson made the motion to approve adding Rich Mauro to the Death Penalty Study group. Paul

Boyden seconded the motion which passed unanimously.

Agenda Item Proposed 2016 Adult Sentencing Guidelines Revisions (tape 52:30) Notes Chyleen Arbon discussed proposed revisions for the 2016 Adult Sentencing & Release Guidelines, and specifically

numbers 6, 7, and 8 on the middle section of the green handout. More clarification is needed to define “public safety threat” and to make form 10 more accessible and understandable. Section 1 of the green handout: Potential motion to update language to more accurately reflect passage of time: Craig Barlow made the motion to approve the items in section one. Judge Christiansen seconded the motion which passed unanimously.

The Commission reviewed the middle section of the green handout: Potential motion to revise language and forms to reflect original intent better: Judge Low requested a red-line version for review before voting. It was decided that Jennifer will email a redline version with all potential revisions to the Commission and a vote will be taken via conference call on September 22nd at noon. The physical location of the meeting will be in the CCJJ Large Conference Room for anyone who wants to attend in person. The document can be distributed for public comment, which Jennifer will forward to the full Commission in advance. Votes will be taken according to Sentencing Commission by-laws. October 1, 2016 is the effective date for the revisions.

Agenda Item NASC Reminder & Anticipated Outcomes – August 7 – 9 Notes Jennifer Valencia reminded everyone about the upcoming NASC Conference on August 7 with the opening

reception at the U of U College of Law, at 3:30 p.m.

Next Meeting The next meeting of the Sentencing Commission (after the September 22 meeting to approve the guidelines) will be on October 12, 2016 at Noon, Utah State Capitol Bldg., Senate Caucus Room.

Minutes prepared by Jo Lynn Kruse – Administrative Assistant, CCJJ

SENTENCING COMMISSION MINUTES

Committee Utah Sentencing Commission Conference Call Meeting

Date Time Location

Thursday, September 22, 2016

Noon – 1 p.m.

Utah State Capitol Complex, CCJJ Large Conference Room

Members Present

Patrick Anderson, Judge Mark Andrus (via phone), Chyleen Arbon, Craig Barlow, Paul Boyden, Darin Carver (via phone), Judge Michele Christiansen (via phone), Rollin Cook (via phone), Al Emery, Scott Garrett (via phone),

Ron Gordon (via phone), Judge Thomas Low (via phone), Judge Julie Lund (via phone), Richard Mauro,

Peter Stirba, Senator Dan Thatcher, Christina Zidow (via phone)

Members Excused

Shima Baughman, Chief Craig Black, Susan Burke, Sen. Gene Davis, Rachelle Hill, Rep. Brian King,

Rep. Marc Roberts, Judge Vernice Trease, Pam Vickrey

Staff & Visitors

Staff: Jo Lynn Kruse, Dr. Ben Peterson, Doreen Weyland

Visitors: Dan Blanchard (via phone), Kim Gibb

Agenda Item Public Comment and Guideline Proposals Received Since 8/24/2016 Notes Chyleen Arbon discussed suggestions made by the BOPP. One concern is the deletion of the “Other” crime

category. The person category is important for criminal history scoring but the other category is helpful for the matrix columns. Jennifer indicated she would add back in the “Other” list for felonies and above, but would not include all misdemeanor “other crimes.” The consensus of the Commission is to keep the “Other” list for felonies in Addendum B and to add clarifying language in the instructions that solicitation, conspiracy, and attempts should still be categorized using the underlying offense (not all inchoate offenses will be listed as person crimes but should be considered as such).

Chyleen also suggested alternate language regarding the BOPP: “A statement of general rationale for Board decisions is provided to the offender and made available to the public at www.bop.utah.gov. The Board of Pardons and Parole is currently in the process of developing a structured decision making tool and adopting the ten practice targets identified by the National Parole Resource Center. As Board practices are further developed and delineated, the guidelines should be updated to reflect practices accordingly.” The Commission agreed to revise the language consistent with Chyleen’s suggestion.

The BOPP is also concerned about the section on Revocation Caps (Tool 6). The language needs to be clear on how the counting is done and clear about what everyone is expecting.

Dan Blanchard, from AP&P, made the following suggestions:

Under Presentence Investigations Instructions, state that “for certain offenders identified as low risk (remove “on the LSI-SV”) whom the sentencing authority would have previously received a full pre-sentence report, a ‘Sentencing Memorandum’ should still be provided by AP&P to the Court.”

Under Tool 5: The counting of the hearings practice between courts and BOPP is currently inconsistent and it would be helpful for AP&P to have some clarification and consistency in this practice. Suggestions would be under P.O. with Supervisor Approval row add: Any Lower Level Response and use “3+subsequent” rather than 3 +.

Under Tool 2A: Replace “Plate” with “(Risk Reduction).”

Senator Dan Thatcher made the motion to approve the suggestions made above, including the incarceration caps

to apply to 3rd

and subsequent hearings unless one of the exceptions are exercised by the Court or BOPP.

Paul Boyden stated that he trusts the BOPP to utilize their discretion appropriately and that requiring the caps to be used for 3

rd and subsequent hearings limits their discretion. Chyleen indicated that the revision will have an

impact on the BOPP and she understands there are different perspectives on this issue.

Al Emery seconded the motion which passed with one no vote from Paul Boyden.

Jennifer indicated after the vote that the use of incarceration caps and exercising exceptions based on the nature, not the number of hearings is more consistent with her understanding of the intent of the JRI legislation. JRI data had indicated a wide disparity in the number of violation hearings prior to revocation, ranging from 3 to 18. The pilot in 2

nd District included 11 violations prior to revocation. The clear consensus from the RIM Pilot and what was

incorporated into the 2015 guidelines was to focus on the nature of the violation, not the number of violations. The exceptions which are now more fully explained in Tool 6 should be sufficient for court or BOPP to exercise their discretion if needed regardless of the hearing number. The perspective that an offender has an automatic 3 violations before a more careful review occurs is incorrect and is also inconsistent with the intent of last year’s

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revisions.

Agenda Item Approval of 2016 Adult Sentencing & Release Guidelines (tape 40:00) Notes Paul Boyden made the motion to accept the 2016 Adult Sentencing Guidelines. Senator Thatcher seconded the

motion which passed unanimously.

Next Meeting The next meeting of the Sentencing Commission will be on October 12, 2016 at Noon, Utah State Capitol Bldg., Senate Caucus Room.

Minutes prepared by Jo Lynn Kruse – Administrative Assistant, CCJJ

SENTENCING COMMISSION MINUTES

Committee Utah Sentencing Commission

Date Time Location

Wednesday, December 7, 2016

Noon – 2 p.m.

Utah State Capitol Complex, East Building, Aspen Room

Members Present

Patrick Corum for Patrick Anderson, Judge Mark Andrus, Chyleen Arbon, Craig Barlow, Paul Boyden,

Susan Burke, Darin Carver, Judge Michele Christiansen, Mike Haddon for Rollin Cook, Al Emery,

Judge Angela Fonnesbeck, Scott Garrett, Rachelle Hill, Judge Thomas Low, Judge Julie Lund, Richard Mauro, Sheriff Todd Richardson, Peter Stirba, Senator Dan Thatcher, Judge Vernice Trease, Pam Vickrey,

Christina Zidow

Members Excused

Shima Baughman, Chief Craig Black, Sen. Gene Davis, Ron Gordon, Rep. Brian King, Rep. Marc Roberts

Staff & Visitors Staff: Jo Lynn Kruse, Holly Langton, Cuong Nguyen, Rep. Lowry Snow, Jennifer Valencia, David Walsh

Visitors: Krista Airam, Susan Allred, Noah Bein, Pam Lachman, Esther Chelsea-McCarty, Dawn Marie Rubio

Agenda Item Welcome – Approval of Minutes Notes Peter Stirba called the meeting to order and welcomed everyone. Craig Barlow made the motion to approve the

October minutes. Christina Zidow seconded the motion which passed unanimously.

Peter introduced two new members of the Sentencing Commission. Judge Angela Fonnesbeck is a juvenile court judge in first district court. Sheriff Todd Richardson is from Davis County.

Peter presented a parting gift to Judge Mark Andrus for his service to the Commission from 2015 – 2016.

Agenda Item Presentation of Juvenile Justice Policy Report from CCJJ (tape 5:00) Notes Pamela Lachman, from PEW Charitable Trusts, gave a presentation titled Key Data Findings of the Utah Juvenile

Justice Working Group. Pam first reviewed the juvenile justice system structure. Key takeaways from the data include:

First-timers who are sent to court commit similar offenses to those who are diverted There is variation across judicial districts in the proportion of first-time cases that get diverted Youth who get diverted have better outcomes than youth who are sent to court for similar offenses on

their first case Most judges report that youth do not have defense attorneys in all types of cases More than 400 youth are detained pre-adjudication on their first case, even though the majority of them

commit low level offenses and 44% are low risk Low-risk youth who get sent to detention on their first case have worse outcomes than low-risk youth who

do not Standard conditions of probation alone take up much of the day, leaving little time to fulfill required or

discretionary community service or financial obligations Racial disparities are present throughout the juvenile justice system, and are largest for youth sent to out-

of-home placement There is substantial variation in the extent to which judicial districts rely on out-of-home placement as a

disposition option Contempt charges are the largest driver of out-of-home placement DCFS custody dispositions are longer than JJS community placement or secure care dispositions

- The protections for youth and families with abuse or neglect findings do not apply to youth placed in DCFS custody for delinquency or status offenses

Youth who end up on probation or in custody spent 3 years in the system on average Despite significant variation in cost, youth released from probation and JJS custody have very similar

outcomes - About half are re-adjudicated or re-convicted within 2 years of release (primarily for misdemeanor

offenses) Key findings from the Juvenile Justice Working Group’s Final Report: Executive Summary:

A lack of statewide standards leads to inconsistent responses and disparate outcomes Most youth who enter the system are low-level offenders Lower-level offenses drive most first-time, out-of-home placements Youth remain stalled in the system for long periods of time due to court-ordered conditions such as

financial obligations Affordable, accessible services that keep families intact and effectively hold youth accountable are largely

unavailable to the courts across the state Out-of-home placement costs up to 17 times more than community supervision, but results in similar rates

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of re-offending Youth often do not have defense representation when their liberty is at stake

Working group policy recommendations include:

Prevent deeper involvement in the juvenile justice system for lower-level youth Protect public safety by focusing system resources Sustain improved outcomes through reinvestment and increased accountability

Jennifer Valencia noted that when the juvenile justice committee reconvenes, they may want to review page 17 of the Utah Juvenile Justice Working Group Final Report and expand the focus of prior efforts at revisions to the

guidelines in order to incorporate the reports’ recommendations. Rep. Lowry Snow praised PEW and the Juvenile Justice Working Group for their countless hours of work, debate and development of recommendations. Rep. Snow would like to see some of the work incorporated into legislation. A bill file has been opened. Judge Christiansen asked if someone could explain the concerns she has heard expressed by some members of the judiciary. Judge Low expressed concerns that the judges do not like eliminating their ability to impose a sanction when a juvenile is found in contempt. Pam Vickrey noted that they are trying to establish some parameters for when detention is used, not remove the ability to impose detention altogether. There is concern from the data that detention may be currently used in a manner which appears inappropriate and counterproductive. Rich Mauro mentioned the difficulty of advising clients in juvenile court on the range of potential sanctions that could be imposed. A Rule 11 plea in juvenile court is very different than in adult court because currently nearly every sanction is possible for every violation. Judge Low indicated that a judge still needs the ability to enforce their own orders or it makes a mockery of the court. Peter Stirba indicated that due to time constraints, it was necessary to move forward with the report but hopefully discussions can continue as the actual legislation is developed. Pam Vickrey also noted that the research presented during the working group’s meeting had highlighted the misperception that incarceration actually results in increased compliance with court orders. She further argued that holding kids accountable is not synonymous with imposing a sanction and that is a key issue the working group is trying to address with the recommendations. Therapeutic conditions and control conditions have been researched extensively and control conditions simply don’t produce better outcomes for kids.

Agenda Item Presentation of Juvenile Justice Subcommittee’s Recommended Legislation on Adolescent Sexual Behavior (tape 1:25)

Notes Pam Vickrey discussed the handout titled Unlawful Sexual Activity Between Minors Overview. In 2015, a total of 714 sexual offenses were filed in both juvenile and district court by offenders who were under the age of 18 at the time of the alleged offense. The goal is to more appropriately categorize the culpability level of sexual activity between minors. Additional handouts give further information categorizing all sexual offenses statutorily and the number of filings in district and juvenile court for each. Rep. Roberts has opened a bill file and asks the Commission for support to move forward. The draft is included in the handouts. Craig Barlow and Scott Garrett indicated that prosecutors are in favor of having an option to charge something other than rape of a child in these circumstances. Jennifer Valencia thanked the subcommittee and ad hoc members, who worked very hard to avoid any unintended consequences and to draft the language to address a very narrow issue. Judge Michele Christiansen made the motion to support the proposed legislation and to continue to monitor any revisions to the draft language by the executive committee. Judge Julie Lund seconded the motion which passed unanimously.

Agenda Item Executive Committee for 2017 Session (tape 1:37) Notes The CCJJ Executive Committee will meet every Monday during the legislative session, with the Sentencing

Commission Executive Committee meeting before noon in the large conference room of CCJJ. Jennifer can facilitate a conference call for those who cannot attend in person and also distribute proposed bills prior to the Monday meeting. Peter Stirba will speak on behalf of the Commission at the CCJJ noon meeting. Pam Vickrey will speak on behalf of the Commission in Peter’s absence. Jennifer will also attend legislative hearings during the week to speak as a representative of the full Commission

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on any bills the Executive Committee decides to support or oppose. Jennifer will not speak if we take no position on a bill or where the bill is beyond the scope of our Commission’s purpose. Holly Langton from CCJJ will track all the legislative bills this session. If you would like to volunteer to participate as a member of the Executive Committee, which would include attending the Monday meetings at 10:30 (12:00 meeting is optional), please let Jennifer know and a list will be approved at the January meeting of the full Sentencing Commission. Anyone with concerns during the session is also welcome to contact any member of the Executive Committee as well.

Next Meeting The next meeting of the Sentencing Commission will be on January 11, 2017 at Noon, Utah State Capitol Complex, State Office Building, Room B110.

Minutes prepared by Jo Lynn Kruse – Administrative Assistant, CCJJ