Try changing the whole idea of how criminals are treated under Utah law and there are bound to be some hiccups.
Or maybe some wholesale choking.
“We’re going to see a bit of confusion and turmoil,” says Rep. Eric Hutchings, R-Kearns, author of HB348 and the reform that’s now taking place in Utah criminal law, sentencing, inmate rehabilitation and more.
“This is not just one hang up. It’s top to bottom change. Frankly, it will probably get worse before it gets better.”
Take what happened just in last month’s legislative special session.
Yes, a huge step forward was made, says Hutchings – lawmakers and Gov. Gary Herbert approved moving the old Draper prison to land out by the Salt Lake City airport – at a cost of more than half a billion dollars. That’s billion with a B.
But in a little understood battle behind the scenes, Hutchings gutted a separate special session bill that was supposed to bring into compliance and understanding moving some drug offenses from felonies to misdemeanors, originally done his huge HB328 in the 2015 general session.
Here is Hutchings HB348, the primary criminal reform bill.
In the end, says Hutchings, in the special session some minor adjustments were made.
“It was vanilla – nothing changed much.”
He’s already working on massive amendments – with 20 to 30 criminal law changes – for the 2016 Legislature, which convenes in January.
And even that effort won’t be final, he says.
In the overall reform “we are changing everything, from processing” a person arrested for a drug offense, to booking him in jail, into how he moves through the early court system.
“We need to look at supervision, penalty reductions, everything.”
And while that may have sounded good to even conservative, law-and-order, Republicans in HB328’s changes last session, when prosecutors, law enforcement, judges, Adult Probation and Parole officers got into the mix – well, things didn’t go smoothly, apparently.
In fact, there was real heartburn.
Sources tell UtahPolicy that some judges were not only confused but dismayed.
A few refused to let drug offense arrestees out of jail at all.
While others let drug offenders out under the new misdemeanor offenses, with cops outraged that these guys were not “restricted” – and could legally possess firearms.
“We do want to make sure that AP&P officers don’t walk into an open front door with a guy legally holding a shotgun,” says Hutchings.
HB328 in some cases moved a felony drug offense down to a misdemeanor – and the misdemeanor didn’t carry with it a “restricted person” application.
But that’s just one example – one that Hutchings thought he could enlighten in the special session – just to find he couldn’t.
His original special session bill used the term “marijuana” in part of the definition.
“You should have seen all the calls I was getting. People thought I was trying to decriminalize marijuana. No, no, no, it didn’t deal with that at all.”
It’s traditional in prosecutions, jails, and courts that those charged with felonies are treated one way, those charged with misdemeanors another.
But instead of classifying and treating arrestees according to felonies and misdemeanors, the new normal must become treating them according to the types of people they are, and how their offenses should be handled in the courts, even jails, and prisons, says Hutchings.
Maybe they are dealing drugs, like marijuana, but they aren’t violent, they don’t have an arrest history, they are addicted themselves.
“Basically we’re saying if it is a drug-related offense, an addiction, too, they are put into a new category. We’ve not done this before.
“They are to be treated differently. That is the problem” for some AP&P folks, for some law enforcement, for some judges.
“There is a lot of miscommunication and misinformation out there,” says Hutchings.
Some judges have not allowed some drug arrestees out of jail, some have been put out of jail and not been classified as a “restricted person” – and so can legally have a firearm in their home, access to a gun.
That’s driving some cops and AP&P officers crazy.
“All the parties involved are not in the same room, not acting in the same way. It is a massive transition. A big systematic change,” says Hutchings.
And one legislators may not have seen coming – at least not in the specifics now taking place.
Some arrestees will have to be restricted – no access to guns, no access to drugs. Others may not be in the same classification.
“We know for a fact we have to come back” in January “and address these real concerns.”
“And we will.”
But even after the 2016 general session not all of the kinks may be worked out.
For now, Hutchings says it was a big deal that the prison was approved and will be moved.
Without that enormous financial commitment made by the state, the overall corrections-addiction-reform movement may have stalled.
And the latest upheaval is one example: Could police, courts, rehabilitation – and, yes, politicians – stick with the criminal justice reform if so much money on facilities and operation not been dedicated?
Hutchings thinks “we could have had a great idea to make society and justice better, but it could have slowly fallen off without the new prison – that is the catalyst that will keep it going.”