Natty Shafer Law

Utah lawyer for criminal and immigration cases

Leave a comment

Utah and the Firing Squad

On Tuesday, the Utah Legislature passed a bill that would permit the state to use a firing squad for an execution if the state cannot procure the drugs that are currently used for a lethal injection. The bill needs Governor Herbert’s signature before it becomes a law.

This piece of news was picked up by national news outlets and is giving Utah a black-eye. While I am against the death penalty, I do not see using a firing squad as worse or more barbaric than lethal injection. I could not state it more eloquently than Judge Alex Kozinski wrote it in his dissent for Wood v. Ryan (internal citations omitted):

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution…. Firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

Leave a comment

Utah Legislature Considering Making Certain Consensual Sex Acts Illegal

The Utah Legislature is currently considering HB 74, which would make it impossible to consent to certain sex acts. A person reading or watching the local news coverage would have a difficult time figuring out what the proposal actually changes. Judging by the comments of the respective coverage, it seems people are not aware that the law—as currently written—already criminalizes the conduct they find objectionable.

HB 74 would make it so that no matter how much both consenting adults might enjoy certain sexual activities, in the eyes of the law, it would be rape. The following words are proposed to be eliminated from two separate subsections of Utah Code 76-5-406:

(5) the victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;

There are many potential acts that would now improperly be defined as a rape, but here are just a couple ways the bill is objectionably over-inclusive:

Consent Explicitly Given: Imagine a married person asked for the following from his or her spouse, “I like to be woken up by [specific sex act]. Would you mind doing that for me tomorrow morning? On my birthday? On Valentine’s Day?” Under the proposed changes to subsection 5, the explicit consent is irrelevant to whether or not a rape has occurred. At the time of the initiation of the sex act, one person would be unaware that the act is occurring and physically unable to resist. Whether or not all people would enjoy having their partner lovingly awaken them with a sex act, the Utah Legislature should not make it illegal for the people who do enjoy it to have fulfilling sex lives.

Bondage: A prosecutor could bring charges, and potentially convict someone for rape, under both proposed subsection changes. Regardless of how much a person might enjoy being tied-up, handcuffed, or otherwise restrained, the person is likely unable to physically resist the sex act. By making consent irrelevant under subsection 5, and having complete mental capabilities irrelevant under subsection 6, a person who engages in bondage could potentially be convicted of rape.

A few people have argued that if two people are consenting, then no one will report a crime. I have a couple responses to that. First, some people enjoy talking to their about their sex lives. No one knows what a busy-body neighbor or an over-zealous police officer will do with the information. Consenting adults should not have to worry about the government intruding. Second, there is no statute of limitations for rape in Utah. Many years later, after a relationship has turned sour, someone could report a “rape” that occurred between two consenting adults. The other person would be sure to draw an objection in court for even pointing out that the act was consensual.


And Down the Slippery Slope We Go

The Utah legislature is considering a bill that requires police departments to collect a DNA sample from every person arrested for a felony. This is the logical extension of last year’s Supreme Court decision Maryland v. King, which I discussed at the time. The Court limited its decision to the collection of DNA for “serious offenses,” but it did not say what constitutes a serious offense. The Maryland law that the Court condoned limited DNA collection to those arrested for violent crimes (specifically enumerated under Maryland law), for an attempted violent crimes, or for burglary. The Utah bill (HB212) expands DNA collection to everyone arrested for any felony.

The Supreme Court justices are not known for being imprecise with language. If the Court had intended to say it was acceptable to collect the DNA of everyone accused of a felony, it could have done so. Instead it chose the undefined phrase “serious offenses.” It is a phrase vague enough to not raise initial concern—I do not remember any non-lawyers expressing concern about the decision—but allows the Court to later expand DNA collection for all arrestees. This should worry anyone concerned about civil liberties. Utah already collects the DNA of everyone convicted of felonies. The only people a change in the law would negatively affect are people who are arrested but later acquitted. This is another way the criminal justice system is eroding civil liberties of everyone, whether or not they are guilty of anything.

UPDATE: The legislature passed this bill, and it was signed by governor Gary Herbert. It went into law on May 13, 2014.

Leave a comment

Utah Considering Lowering Legal Alcohol Limit

The Utah legislature is considering a bill that would lower the legal blood alcohol content (BAC) to .05, KUTV’s Rod Decker is reporting. It was inevitable that Utah would be among the first states to consider the change once the National Transportation Safety Board (NTSB) announced last May it was recommending a .05 BAC legal limit. Utah legislators are always quick to act whenever it allows them to appear more moral than their peers. With NTSB’s endorsement, Utah may not pass the law this legislative session, but you can bet that in the coming years it will happen.

Even though the change may be inevitable, that does not mean it is good policy. To borrow a term from economics, this is not the “lowest hanging fruit.” Utah consistently ranks among the bottom states in per capita DUI fatalities. To promote driving safety, Utah would have better results if it attacked other unsafe driving practices first: speeding, drowsy driving, or cell phone use. Every time a police officers pulls over a motorist, their attention is diverted away from policing anyone else. If officers start using resources to arrest someone with a BAC between .05 and .08 (the current legal limit), they may be missing out on a more serious offender. We have likely reached the point of diminishing returns where each incremental increase in DUI laws no longer yields a significant improvement in driver safety.

1 Comment

Utah May Ban DUI Checkpoints

Today, the Utah House of Representatives passed a bill to prohibit the police from conducting DUI checkpoints. The Utah State Senate must also pass HB140, and then the governor would need to sign it for it to become law.

Police use DUI checkpoints by placing roadblocks on a public roadway and then they stop every vehicle or random cars and look for signs of alcohol or other impairment. The Utah bill would not affect law enforcement’s ability to look for fugitives, such as during an Amber Alert, nor would affect their ability to look for “invasive species.”

The United States Supreme Court deemed random DUI checkpoints as constitutional in the case Michigan Dept. of State Police v. Sitz. Michigan’s high court then found such checkpoints to be illegal under Michigan’s Constitution. Several other states have banned them as well.

UPDATE: HB140 never made it out of the Utah State Senate, so as of the close of the 2012 legislative session, Utah remains one of the states that allow DUI checkpoints.