Caprecious vindictiveness in the Utah Board of Pardons and parole

Miller, R. Henry

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Capricious Vindictiveness in the Utah Board of Pardons and Parole By R. Henry Miller Actions by the Utah Board of Pardons and Parole (UBoPP) personify the maxim that absolute power corrupts absolutely. UBOPP is an independent agency within Utah’s executive branch. Its decisions are not appealable in court. An inmate may not challenge the Board’s decisions, but may challenge the process UBoPP used to reach its decisions. Meetings however are closed to the public and records of meetings are unavailable. The only disclosure to inmates is the criteria UBoPP utilizes in making decisions, and these facts are often flawed or are erroneous. UBoPP’s five members are usually antagonistic toward offenders. Clark Harms, Angela Micklos, and Robert Yeats are former prose authors, Jesse Gallegos has a criminal justice background, and Charleen Arbon is a former policy analyst. The Utah Sentencing Commission’s guidelines are not binding on The Board and UBoPP’s decisions are not reviewable by the court, so there is no control over its decisions. The governor may reduce an inmate’s sentence or release him early, but his decision is valid only until the next UBoPP meeting. The Board can then rescind the governor’s action. And since it meets almost every weekday the inmate won’t make it out of the door until the release order is revoked. The result of the lack of accountability and absolute power over inmates’ futures is that the Board makes subjective, emotional and arbitrary review decisions with no recourse by the inmates. Some background information on Utah’s criminal Justice System that also affects UBoPP is necessary to fully understand its lack of objectivity in reviewing cases. I have spent the past 14 years in Utah prisons on a wrongful conviction. I was arrested by the West Valley City, Utah police department which has been investigated by the FBI for misconduct. Over 100 of its pending cases were dropped for officers mishandling guidelines. One WV officer was caught taking drugs from a crime scene by an officer from another department. Prosecutor Paul Parker told my trial jury, I did "not violate the law," and my defense was valid. However, he told them there was "some innuendo, certainly, one could make that [I] could have" committed a crime. And, "Everyone’s been talking about this man. It’s not a whodunit. As a party to the crime. Now, I haven’t defined party to the crime because it doesn’t apply here. Party to the crime means someone who can be prosecuted as if he committed a crime" (emphasis added). Prosecutorial remarks, even in opening and closing statements, must be grounded in fact and innuendos are forbidden. Parker admitted "party to the crime" did not apply, therefore he should not have mentioned it. He actually told the jury he had no case: My defense was valid and I did "not violate the law." But since there was some unfounded innuendo he could (impermissibly) make that maybe I could have committed a crime. He was prosecuting a crime as if I had committed a crime, first because I was aiding federal law enforcement, and second because my actions violated Mormon misplaced sensibilities. My attorney did not challenge Parker’s misstatements and did not move for dismissal of charges because, he told the judge, my having custody of evidence in order to preserve its integrity until I could turn it over to the FBI was "Technically not a defense." That was a most peculiar position for a defense attorney, particularly considering Parkers’ admission that there was no actual crime. If citizens may not turn over prescribed items to police without being prosecuted, then police could not use informants to make drug buys, and citizens could not turn in contraband without being jailed. My case is not an exception to the rule. Two Utah defense attorneys have estimated the state’s wrongful conviction rate at 40 percent, ten times higher than the national average. The rate of actually innocent citizens in prison is estimated at 18 to 20 percent of the prison population, also ten times higher than the national average. The actions of Utah police, prosecutors, defense attorneys and UBoPP seem incredulous unless one understands Utah’s long-standing punitive animus toward the federal government and federal courts in particular, and the pervasive theo-suicidal despotism inherent in Utah’s judicial system. A July, 1860 New York Times editorial explained that Utah had an "inveterate hostility to anything with the name, appearance, or qualities of a United States court," and the hostility was based upon "A determination to resist, as far as possible, all federal authority." This was particularly true of federal law administered by "Heathen Gentile" (Non-Mormon) judges. Utah‘s concept of Justice is for Mormon judges to "try and punish those persons who the whole community is convinced are really guilty. [But] say nothing of the guilt of Brigham Young or other Mormon Leaders until evidence points undeniably toward such offenders. No judge can hope to have any influence who assails full tilt the prejudices of the people, and continually alleges wrong doing against those whom the majority of the people delight to honor: (Emph. Added.) The domination of Utah’s legal system by the Mormon Church continues today. A former Utah Judge told me that the citizen recruits all influential Utahans into the church in high-ranking positions. The judge said his recruiter told him, "Remember, you may be a judge, but you’re a brother in the church first." The implication was that church dictates supersede the law and the constitution. Mormon elder Tad R. Callister explained: "God needs to speak only once on the issue of morality and that one declaration trumps all the opinions of the lower courts." ("The Lord’s standard of morality" Ensign Magazine, March 2014, pp. 45-47). Therefore, I could be prosecuted for having custody-not-possession-of-documents I intend to turn over to the FBI because it was the documents themselves. Not my intent that was prohibited (State v. Morrison, 2001, US 73,31p, 2s 547). Paula Houston, Utah’s "Porn Czar," echoed the 1960 Times editorial when she said, "Community Standards define what porn is. In Utah, those standards reflect the dominant Church of Jesus Christ of Latter Day Saints" (LDS, The Mormons) (CBS News, 12 March 2001). The governor Michael Leavitt reiterated Houston’s position when he said , "In a state where the Mormon Church and its socially conservative views influence almost all aspects of life," The state’s unconstitutional prosecutorial welfare malfeasance would "codify our highest moral aspirations by adding state power to community efforts to fight what some residents regard as offensive," but not necessarily illegal. UBoPP operates on the same rationale. The hearing officer at one of my hearings stated I had "A huge number of victims," meaning the documents destined for the FBI. I pointed out to him that the Board’s own facts said I had no victims. He made four more such statements which, I pointed out, contradicted the facts he had in his possession. He then slammed papers onto the Bench and said, "You’re going to do a lot of time," and ended the hearing. Ron Faulkner was convicted of a burglary to which he admits. He was caught when the woman who owned the house came home which he was still inside. Faulkner fled but was apprehended by police. The only charge against him was burglary. No hint of an additional crime existed. Yet the UBoPP hearing officer said, "We think you were thinking about raping [the home owner] if you had time." Ron received a 20 year rehearing date when he would receive another hearing. His attorney had him take a polygraph test which he passed. The board then released him (Ron Faulkner v Board of Pardons UT. 3rd Dist. Ct, no.10092015). Ron was lucky. UBoPP didn’t have to accept the polygraph results. But thanks to the Utah Prisoner Advocate Network and other groups, UBoPP is getting sensitive to public opinion. An Audit of UBoPP is supposedly being conducted by the state. So far, most of what’s being done is revision of some criminal laws to shorten the maximum time some drug offenders spend in prison. Utah has an indeterminate sentencing structure. Third degree-felony convictions require a 0-5 year sentence. Second-degree felonies require a 1-15 year sentence, and first-degree felony convictions require a top of life. UBoPP may parole or release an inmate before the maximum time, but it most often keeps offenders far longer than necessary. One of my cellmates received a termination (release) Date 1 day before his sentence expired. I am serving the full 15 years of my sentence for an alleged crime against persons with no victims. UBoPP is in need of extensive revision. Board members need to be trained and experienced in rehabilitating errant, and they need to be held accountable for their actions. Decisions of the Board should be renewable by the courts. Judges need to have jurisdiction to impose a fixed sentence between the minimum and maximum times. UBoPP could then release someone sooner, but it could not extend a judicially-imposed sentence. And judges’ rulings are appealable. Inmates are harmed by extensive stays in prison, statistics from the U.S. Department of Justice, Bureau of Statistics show that sentences longer than three years do little to lower recidivism rates, and more than 68 months in prison is detrimental. UBoPP’s vindictively extending sentences beyond rational limits does nothing to make communities safer: It actually increases recidivism rates. By harming the prisoner’s mental and emotional wellbeing. Families are harmed by their loved ones spending excessive time in prison. The main breadwinner is absent which creates economic hardship for families. Having both parents is extremely important to children as they grow up. And wives usually seek divorce when their husbands are incarcerated for many years. Accordingly, it is the children who suffer the most from UBoPP’s vindictive malfeasance. My granddaughter recently asked grandma, "When is he coming home? They’ve kept him there too long already… they have, especially since I committed no crime except offend Mormon sensibilities. For me release comes one year from the time I write this essay. It will be a total of 15 years. The public is learning about UBoPP’s excesses and the public is unhappy. Hopefully, more information will be presented to the public, and the increased public pressure will cause the Utah legislature to revamp UBoPP so other deserving inmates can follow me out the gate.

Author: Miller, R. Henry

Author Location: Utah

Date: July 10, 2017

Genre: Essay

Extent: 6 pages

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