Last week, I had an innocent client plead guilty and go to jail. He had fought the charges against him for years, but on the eve of trial, thoughts of possibly being convicted of a felony and losing his career and his home overwhelmed him, and he accepted a plea bargain down to a lesser offense.
Unfortunately, it wasn’t the first time this happened and it won’t be the last. The imperfections in our justice system are a reflection of our imperfections as humans. Even though we value things like fairness, justice and mercy, often our fears and misconceptions lead us to have false beliefs about what our problems are and how we should fix them. A national Gallup poll found that 77% of people believe crime is rising. However, the actual FBI and State law enforcement statistics show the opposite is true. Except for a spike during the COVID-19 pandemic, crime has been going down for decades and is declining once again.
Despite crime rates going down, the public’s false perception pressures policy makers to make more criminal laws and increase penalties to solve the perceived problem. The understandable tendency of legislators to increase penalties year after year has been described as a one-way ratchet. Currently, Utah has 2,967 criminal laws on the books with another 12,265 criminal ordinances in various cities and counties. Since criminal justice reform in 2015, the Legislature has passed 70 laws creating new offenses compared to 3 that repealed offenses.
This trajectory is unsustainable. Utah jails and prisons are continually at capacity. Despite law enforcement and corrections officers diligently doing their jobs, prisoners are regularly released because of overcrowding. And despite increased penalties, people with mental health or substance abuse issues continue to reoffend when their conditions go untreated. A 2021 meta-analysis published in Crime and Justice found that cohabitation with other inmates perpetuates antisocial attitudes and learned criminal behavior. In fact, the more time a person spends around those with a similar or more serious conviction, the more likely they are to reoffend. Additionally, 95% of inmates will eventually be released at some point, whether or not they have received treatment.
The Nolan Center for Justice recently found housing prisoners costs taxpayers $250 million each year and that cost is rising. According to the Utah Department of Corrections, it costs approximately $31,000 per year to house a single inmate (compared to $4,400 per year to supervise the same inmate in the community). On top of that, local communities bear the additional costs of maintaining or expanding local jails.
Anyone who seriously considers these facts recognizes that we can’t incarcerate our way out of this problem. If we keep increasing penalties and building bigger jails, we are simply kicking the can down the road and placing the burden on the next generation. Instead, we must get serious about solutions.
Public safety will increase by passing data-driven legislation focused on addressing the root causes of recidivism and then committing the necessary resources to those efforts. The Utah Legislature has taken some important steps in this direction, but a couple of pieces have always been missing. Sometimes the funding, sometimes the data, and sometimes the follow-through. Numerous legislators and stakeholders continue to strive towards a better justice system by increasing reliable data collection and pushing for more funding for treatment. If these efforts are successful, the results for society will be nothing short of revolutionary.
But in the meantime, if we continue to believe crime is going up and continue to resort to the one-way ratchet, we will end up with a justice system in which the same people go through the same revolving door, and we will have more innocent people who plead guilty because the potential penalties they face will simply be too great a risk. Although we are inherently drawn to examples of extreme cases, we cannot be misled. Legislating to these examples leads to short-sighted legislation that worsens the problem. Utah cannot afford to be short-sighted, particularly when we have access to data and research that tells us which strategies are effective and which are not. These days, we can confidently say that we know better.
Steve Burton is the current Director of the nonprofit Utah Defense Attorney Association (UDAA) and former Executive Director and President of Utah Association of Criminal Defense Lawyers (UACDL). He was a city prosecutor from 2008 to 2010 and has been a private criminal defense attorney from 2010 until now.
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