Utah Supreme Court

The Worst Possible Sentence

David Dominguez, Executive Director of Stride On.

David Dominguez, Executive Director of Stride On.

The recent Utah Supreme Court decision in State v. Houston, which upheld a sentence of life in prison without parole for a juvenile who murdered a young woman, did not seem to get a lot of attention despite the implications that it has for our society. Because I was not done thinking about it, I decided to interview Professor David Dominguez, who recently retired from the BYU Law School where he taught criminal law and community lawyering.

Professor Dominguez’s community lawyering class at BYU was incredibly popular, and I had the privilege of taking it. The goal of the class was to work closely with children in pre-trial detention, detention staff, and parents to empower the children to represent their own interests in the justice system and in life. For many BYU law students it was a life-changing experience. Professor Dominguez retired from BYU to pursue this work full time as the executive director of Stride On, an organization that teaches law and life skills in the juvenile jailhouse.

Because of his extensive work with juveniles, I asked him what he thought about the decision in State v. Houston.

“To me, they completely flubbed it,” he said. “They told Houston, essentially, ‘You will die in slow motion. We’re executing you because we’re giving you no chance whatsoever to live a normal life again.’”

Dominguez explained that sentencing a child to life in prison without parole is much worse then sentencing an adult to life in prison without parole. “It’s the worst possible sentence because nobody but a minor can serve the whole adult life-in-prison sentence and then serve more time,” he said. “To punish a kid even more harshly than we would an adult for the same crime, to me that is cruel and unusual punishment.”

The majority of the Utah Supreme Court, however, reasoned that the sentence did not violate the Eighth Amendment. To their credit, however, they did express their hope that life in prison without parole for juvenile offenders would be rare. ¶ 67. Their unease is warranted considering that the law they were upholding did not just affect Houston, but our society as a whole.

“Even though we know it’s obvious that the defendant is on trial, what’s not so obvious is that the law is on trial. And because the law represents the people, it means we are on trial, too,” Dominguez said. “Is this law fair? I think most people will look at this and say, ‘This is simply not fair.’”

For his part, Dominguez hopes that his efforts with Stride On can help to prevent the circumstances that led to the decision in State v. Houston. By getting to juvenile offenders early and incorporating many different key players from the community, he hopes to provide them with better life skills and ultimately a better path. “The word is starting to spread in the community that technology and these key players are going to be able to help in ways that they never helped before,” he said. “The parents and the kids are equipped and empowered to offer an alternative [to detention].”

It is too late for Houston and many other juveniles. However, Dominguez is always looking for lawyer and non-lawyer volunteers who are willing to pitch in and make our society more just. Go to www.strideon.com for more information.

Sentencing children to death-in-prison

The Utah Supreme Court ruled this week that it was constitutional to sentence a child to life in prison without parole. The majority’s reasoning in State v. Houston, 2015 UT 36, is sound, but I still can’t help but feel that the result is incorrect.

The story of Robert Cameron Houston is as heartbreaking as it is violent and horrifying. He was born with a deformed ear that left him partially deaf and made it hard for him to learn to talk. He was bullied because of his ear and his weight, and his father abused him physically and verbally. When he was only eight years old, Robert tried to commit suicide for the first time. At age twelve, his brother’s friend sexually abused him for several months. ¶ 5.

Then, at age fourteen, a shift occurred in Robert’s life. Instead of being the one who was bullied, abused, and raped, he became the aggressor. He attempted to rape his stepsister. The next year he attempted to rape his aunt. He pled guilty in both cases and was placed in a treatment facility for juvenile sex offenders, where he attempted to rape a staff worker. ¶ 6.

In 2006, when Robert was seventeen years old, a staff worker at the treatment center broke protocol to give him a ride the independent living home where he was staying. When they got inside, Robert raped and killed her. The details are highly disturbing, and the Utah Supreme Court does not flinch in its summary of the events. ¶¶ 8–9.

After reading the background section of the opinion I was struck with two seemingly contradictory conclusions: Robert was a monster, but he was also a child. Part of him was able to commit a brutal rape and murder, but another part of him seems to be genuinely horrified by the screaming of his victim.

The question I’m left with is, what do we do when a child is so dangerous that we can’t let him be free?

The majority’s opinion carefully analyzes all of Robert’s constitutional challenges and other claims. There is also an excellent examination of rule 22(e) of the Utah Rules of Criminal Procedure, which states that the “court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” ¶¶ 18–28The part of the opinion that gives me pause, however, is the determination that sentencing a juvenile to life in prison without parole is not cruel and unusual and does not violate the Utah or federal constitutions. ¶ 67. Justice Durham wrote a fantastic dissent in which she stated, “In my view, the diminished culpability of juveniles, combined with the exceeding harshness and irreversible nature of [life in prison without parole], makes this sentence unconstitutionally disproportionate and inconsistent with the ‘evolving standards of decency that mark the progress of a maturing society.’” ¶ 213 quoting Trop v. Dulles, 365 U.S. 86, 101 (1958).

This is still an unsettled area of constitutional law, and the majority does a fine job describing the current contours. But taking a longer view of this, I think the reasoning in Justice Durham’s dissent will eventually win the day. She makes the following lucid points, to which I will add my thoughts:

1. Children’s brains are not fully developed. ¶ 259.

The U.S. Supreme Court has recognized the overwhelming scientific evidence that children often make horrible decisions because their brains are not fully developed. I find it ironic that one of the justifications for trying children as adults is that their crimes were so serious. When a child commits a serious crime it is only further evidence that the child’s reasoning capabilities are diminished. The more heinous the crime, the more evidence that the child’s mind in underdeveloped. In the case of Robert, the senselessness of the violence he committed is further evidence that he was operating with the mind of a child. Sentencing him in the same way that we sentence an adult is disproportionate.

2. Children are more vulnerable to negative influences. ¶ 261.

I think this is particularly true in Robert’s case. Through the rape and abuse that he suffered, his young mind was molded into seeing the world from that perspective. While his crimes are abhorrent and unjustifiable under any circumstances, it is possible to understand why he felt the compulsion to rape and murder. The fact that his young mind was clearly exhibiting the negative influences in his life is further evidence that his sentence was disproportionate.

3. A child’s character is less fixed than an adult. ¶ 262.

Children still have time to change. Part of what is wonderful about children is their vast potential and the hopes that we have for them. This, however, brings me back to my original question, what do we do when a child is so dangerous that we can’t let them be free? What happens when we don’t have any hope that a child can change?

I don’t know what the answer is, but it certainly isn’t life in prison without parole. When we, as a society do this, we are stating that we are absolutely confident that the child will never be able to change. But if we are so certain that the child will never change, then why don’t we just execute the child? Life in prison without parole is, in effect, death by incarceration. Bryan Stevenson, the author of Just Mercy and founder of the Equal Justice Initiative, has referred to it as a death-in-prison sentence.

I don’t think anyone can be that confident, even when the crimes are as horrific and frightening as the rape and murder that Robert committed. So, while I understand and appreciate the reasoning of the majority in State v. Houston, I think Justice Durham makes the better argument. This case makes my heart break—for Robert, for his victim, and for our society that has not yet learned how to properly address these kinds of tragedies.

Utah's Powerful Establishment Clause

The Utah Supreme Court decided an interesting case earlier this month about religious expression under the Utah Constitution. The full story behind Summum v. Pleasant Grove City, 2015 UT 31, actually starts with Cecil B. DeMille’s epic film The Ten Commandments. To promote the 1956 film, DeMille teamed up the Fraternal Order of the Eagles and coordinated the placement of Ten Commandments monuments in public parks across America. Years after the film promotion was done, the Eagles continued to give out Ten Commandments monuments as a way to combat juvenile delinquency. See 129 S.Ct. 1125, 1140 (2009). It makes sense because nothing keeps the kids off drugs like a monument.

In 1971, the local chapter of the Eagles donated a Ten Commandments monument to Pleasant Grove City. ¶ 2. Four years later, a new religion, Summum, was born in Utah—and by “born” I mean incorporated as a 501(c)(3) tax-exempt organization. Summum thinks that the Ten Commandments are a “useful guide,” but that their Seven Aphorisms are the real deal. So they wanted to put a Seven Aphorisms monument next to the Ten Commandments monument in Pleasant Grove. Pleasant Grove said no way. They went back and forth for a while and eventually went to court. The case made its way to the U.S. Supreme Court in 2009. In Pleasant Grove v. Summum, 129 S.Ct. 1125 (2009), Summum argued that because Pleasant Grove had accepted the Ten Commandments monument and rejected theirs, Pleasant Grove had restricted their free speech in violation of the federal constitution. The U.S. Supreme Court found that Pleasant Grove had not violated Summum’s right to free speech because the Ten Commandments monument was government speech, not a public forum. 1138. The U.S. Supreme Court didn’t decide whether the Ten Commandments monument itself violated the federal establishment clause, but Justices Scalia and Thomas argued in their concurrence that it did not. 1139-1140.

But Summum wasn’t done. They decided to make another effort at getting the Seven Aphorisms in the Pleasant Grove park. (It’s funny that Pleasant Grove, population 35,000, has become the focus of this religious expression debate. I guess if you can make it in Pleasant Grove, you can make it anywhere.) Summum brought a state claim under the Utah Constitution. Utah’s establishment clause is much more specific than the federal establishment clause. It reads, in part: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.” Utah Const. art. 1, sec. 4.

The Utah Supreme Court declined to decide whether the Ten Commandments monument violated the Utah Constitution. ¶ 1. Instead, it focused on Summum’s request for adding a Seven Aphorisms monument. The Utah Supreme Court held:

"Assuming that the Ten Commandments monument amounts to religious exercise or instruction, requiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views, including adherence to one of multiple religious denominations, agnosticism, or atheism. Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property among the spectrum of religious views held by Utah citizens. And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable." ¶ 11.

So if two monuments would fail to neutrally reflect the pluralism of Pleasant Grove and therefore violate the Utah Constitution, then wouldn’t one monument be even worse? The question that the Utah Supreme Court left intentionally unanswered is, does Utah’s establishment clause go further than the federal establishment clause in prohibiting religious monuments in public parks? It looks like it does. Pleasant Grove’s Ten Commandments monument might violate the Utah Constitution even though it might not violate the U.S. Constitution. It's an interesting question, but one that the Utah Supreme Court will have to answer on a different day. For now, Summum can’t have its monument in the Pleasant Grove park.