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Criminal Justice Re-cap of 2015 Session: Part 2!

20 March 2015 Published in The ACLU of Utah Activist

2015-Criminal-Justice-ReformAs promised, we re-visit the Legislative Session again today for more news on exciting progress (and some regression, as is the nature of things) in Utah's criminal justice system! 

This update was prepared by Anna Brower, Public Policy Advocate.

Yesterday, I recapped several big pieces of legislation with which the ACLU of Utah was involved, and which were pretty directly related to criminal justice reform. Today & tomorrow, we're moving a little away from the bulls-eye, to discuss several critical bills that deal with issues both further up the criminal justice pipeline (law enforcement) and further DOWN as well (re-entry and re-integration for people with criminal records). 

Let's start with the stuff that happens early in the pipeline, in interactions with law enforcement. These bills deal with police practices, Fourth Amendment rights (search & seizure), and use of force. 

HB361 - "Investigation Protocols for Peace Officer Use of Force"  

Sponsored by Rep. Marc Roberts - PASSED, to be signed by GOV. HERBERT

  • What it does: Some decent, though not ground-breaking, things. This one mainly went under the radar - except NOTHING escapes the watchful eye (and fast-Tweeting fingers) of Fox13's Ben Winslow!  equires law enforcement agencies (LEA) to designate an agency to investigate officer use of force incidents - and it CAN'T be the same agency that the officer works for. Says that all LEAs must adopt - and post (that means it's all public, folks) - policies, procedures and protocols related to the investigation of officer-involved incidents. This must be done by the last day of this year. 
  • What it doesn't do: Make community members who are angry and scared over officer-involved shootings and physical altercations, feel happy or secure. Not that this isn't a solid step in the right direction - many kudos to Rep. Roberts for taking on a charged issue. But this bill does not say what "professional," "thorough" and "impartial" means in terms of investigating officer-involved use of force - it only says that agencies must have policies that ARE these things. It doesn't define "use of force" beyond the more extreme cases: when a dangerous weapon is used by an officer, when a fatal injury occurs, when a death occurs in custody, that kind of thing. This bill might not be broad enough to cover other problematic interactions - such as when wrists are broken, or skin broken, by rough arrests or interrogations. It doesn't set baseline procedures and policies - it just requires agencies to write them down and make them available. Does NOT require the use of a special investigator for officer-involved incidents, something that would have made the ACLU very happy! 
  • ACLU reaction: Lukewarm support. It's something, but it's not a lot. Upset community members will likely not see this as doing much to restrain use of force by officers. 

SB252S01 - "Law Enforcement Use of Force - Interim Study" (started as SB251, "Task Force on Law Enforcement Use of Force") 

Sponsored by Sen. Howard Stephenson - did NOT pass

  • What it does: Well, nothing, since it didn't pass. It began with high expectations even before the session started. But when push came to shove, the "task force" idea slowly dwindled to an "interim study" concept, and then wafted away into thin air. That could have been because law enforcement as a lobbying bloc felt pretty beleaguered toward the end of the session, or because legislators recognized that having a panel of elected state lawmakers examine critical incidents involving police didn't make much sense. Sen. Stephenson is a fairly stalwart libertarian on 4th amendment and law enforcement issues, though, so I think this bill came from the right intention. And I will always appreciate his willing support of criminal justice reform at our Rally For Reform on February 10! 
  • What it wouldn't have done: I think the big issue with this task force - as well as most of the other government-sponsored dialogue and investigation on this topic - is that it would not have included any community members. The legislature tends to be highly deferential to prosecutors and law enforcement - not always, and not uniformly, but pretty significantly. Since officer-involved incidents are also REGULAR-EVERYDAY-PEOPLE-involved incidents, it's really really important that processes that look at the incidents, include regular people from the neighborhood. 
  • ACLU reaction: Meh. We didn't actively support it, but we didn't actively oppose it. If passed, the task force might have provided a forum for community concerns and fears, which could have had some value to community members upset over Utah's spate of fatal officer-involved shootings of late. 

SB52S01 - "Asset Forfeiture Amendments"

Sponsored by Sen. Howard Stephenson - PASSED, to be signed by GOV. HERBERT

  • What it does: Improves transparency regarding "asset forfeiture" practices by Utah LEAs. Asset forfeiture - as a property rights violation, as a law enforcement fundraising tactic - has gained in profile nationally in the past several years  emerging as a serious negative consequence of the War on Drugs. Utah LEAs collect aggregate data on asset forfeiture - this bill requires them to collect and provide more information about seizures they make. 
  • What it wouldn't have done: Changed any asset forfeiture practices. Well, not immediately - and not directly, but we are always hopeful that there will be a purifying effect when a little sunshine falls on previously shaded (or shady) activities. The hope is that this data collection requirement will help our state better assess to what extent asset forfeiture - and the abuse thereof - is a problem in Utah.  
  • ACLU reaction: Pleased! We were supportive, and regard this as an important move toward greater transparency and accountability. 

HB167 (eventually became HB167S02) - "Asset Forfeiture Revisions"

Sponsored by Sen. Brian Greene - did NOT pass

  • What it would have done: This bill took a much more proactive and aggressive approach to asset forfeiture abuse. Sen. Greene, another fierce property rights advocate, sought to actual influence when and how asset forfeiture can be lawfully used, such as how closely related the property must be to the alleged crime. It also made clear provisions for the property owner to get her/his property back, even if the person doesn't have a lot of money for legal counsel - and allowed the property owner to recover more in legal fees than currently allowed, should s/he have to sue to get property returned. 
  • What it wouldn't have done: Ever passed in our law-enforcement-friendly legislature. 
  • ACLU reaction: Sad but not surprised. This was a bold bill, and we supported the concept. Hopefully, if the data collection required by Sen. Stephenson's bill shows that asset forfeiture is being overused or abused in Utah, this reform will get more support in years ahead. 

That's it for today! Tomorrow and/or early next week, we'll get to bills related to re-entry and re-integration of formerly-incarcerated people back into their communities - and we'll talk about those fun "odds & ends" bills, too. 

If you have a question about a specific piece of legislation that I have not yet featured, please feel free to email me. I'm showing a preference for bills that passed in these re-caps, so there might very well be legislation worth mentioning that DIDN'T get anywhere but is of interest to you - just let me know.