State v. Bishop, s. 19733

Decision Date31 March 1986
Docket Number19797 and 19847,Nos. 19733,s. 19733
Citation717 P.2d 261
CourtUtah Supreme Court
PartiesSTATE of Utah, Plaintiff and Respondent, v. Douglas D. BISHOP, Defendant and Appellant. (Three Cases)

Gregory M. Warner, of Alrich, Nelson, Weight & Esplin, Provo, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Sandra Sjogren, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

The defendant was found guilty and mentally ill on three counts of sodomy on a child in violation of U.C.A., 1953, § 76-5-403.1 in three separate trials and sentenced to three concurrent indeterminate sentences of five years to life. The minimum five-year sentences are mandatory, unlike most minimum terms under the state's general indeterminate sentencing scheme for most crimes.

On this appeal, the defendant challenges the constitutionality of section 76-5-403.1, 1 which fixes the maximum prison sentence at life and the minimum sentence at a mandatory five years, ten years, or fifteen years without possibility of parole until the minimum sentence imposed has been served. The defendant argues that the statute is unconstitutional because it 1) infringes inherent powers of the courts to suspend sentences; 2) invades the constitutional powers of the Board of Pardons to set parole dates; 3) constitutes a "special law," in violation of Article VI, section 26 of the Utah Constitution; 4) denies the defendant the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution and Article I, section 24 of the Utah Constitution; and 5) violates the cruel and unusual punishment provision of the Eighth Amendment to the United States Constitution and Article I, section 9 of the Utah Constitution because a life sentence with a minimum mandatory five-year prison term is unconstitutionally disproportionate to the crime of sodomy upon a child, and because the defendant has not been afforded adequate psychiatric care.

In cases number 19847 and 19797, the defendant's act of sodomy was fellatio with a 13-year-old boy, and in case number 19733, the defendant committed acts of fellatio with an 11-year-old boy in which both the defendant's and the victim's genitals and mouths were involved.

Two experts in forensic mental health testified that the defendant suffers from chronic pedophilia, which is classified as a psychosexual behavioral disorder in the Diagnostic and Statistical Manual. They both considered him mentally ill, but able to understand the nature of his acts and to conform them to the requirements of law. They also testified that he poses a threat to others, especially young boys. He is, however, able to provide the basic necessities of life for himself.


Defendant asserts that U.C.A., 1953, § 76-5-403.1 infringes the separation of powers provision of Article V, section 1 of the Utah Constitution because the minimum mandatory sentencing statute removes the power of trial judges to suspend sentences in violation of inherent prerogatives of the judiciary.

The challenged statute does not permit a judge to suspend the sentence of a defendant convicted of child sodomy. Section 76-5-403.1 requires "imprisonment in the state prison," and section 76-3-406 specifically states "that imposition of sentence shall not be suspended ... for any person who commits a felony of the first degree involving ... sodomy upon a child, a violation of § 76-5-403.1[.]"

The defendant relies heavily upon State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), in which the Idaho Supreme Court held that judicial authority to suspend a sentence existed at common law and was a fundamental and inherent power of the judiciary. Id. 486 P.2d at 251. Although there may be strong reasons why a judge should have power to suspend a sentence, and usually has that power by statute, the generally accepted law is that it is the legislature which has the power to define crimes and to prescribe punishments, within certain constitutional limits not pertinent here.

Contrary to McCoy, in Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed.2d 129 (1916), the United States Supreme Court concluded that courts did not possess that power under the common law, and that such a power was inconsistent with the power of the Legislature to fix sentences for violation of the law. Id. at 41-45, 37 S.Ct. at 74-76. The Court noted that despite a division of authority among the state courts, a majority had held that courts have no inherent power to permanently suspend a statutorily defined sentence. The Court cited a Utah case, People v. Blackburn, 6 Utah 347, 23 P. 759 (1890), for the proposition that although a judge has the inherent power to suspend a sentence temporarily for specific purposes, such as allowing a defendant time to petition for a pardon, "[t]he authority to wholly relieve parties from a conviction for crime is not given to the courts, but belongs to the pardoning power." Id. at 349, 23 P. at 760. See Ex Parte United States, 242 U.S. at 47 n. 1, 37 S.Ct. at 76 n. 1.

After statehood, this Court reaffirmed that principle in In re Flint, 25 Utah 338, 71 P. 531 (1903), and Mutart v. Pratt, 51 Utah 246, 170 P. 67 (1917). In Mutart, the Court stated That the Legislature of this state has the sole power to fix the punishment to be inflicted for a particular crime, with the limitation only that it be not cruel or excessive, will not be questioned. That it may fix any punishment, subject to the above limitation, and leave no discretion whatever in the courts as to the extent or degree of punishment is a well-recognized and universally accepted doctrine, and under a statute fixing a definite period the court has no more discretion as to the punishment than the police officer whose duty it is to carry the punishment into effect,....

Id. at 250, 170 P. at 68. Again, in Williams v. Harris, 106 Utah 387, 149 P.2d 640 (1944), we affirmed that principle. But see State v. Barlow, 25 Utah 2d 375, 483 P.2d 236 (1971). These precedents control the instant case. 2


The defendant also asserts that the minimum mandatory sentencing scheme infringes the constitutional powers of the Board of Pardons under Article VII, section 12 of the Utah Constitution and for that reason also violates the principle of separation of powers.

Prior to its amendment in 1980, Article VII, section 12 allowed the Board of Pardons to grant parole "upon such conditions, and with such limitations and restrictions as they [i.e., the members of the Board] deem proper[.]" Because of the breadth of this power, pre-1980 decisions of this Court can be read as treating the Board of Pardons as, in effect, a fourth branch of government. See, e.g., State v. Barlow, 25 Utah 2d 375, 483 P.2d 236 (1971); Cardisco v. Davis, 91 Utah 323, 64 P.2d 216 (1937); State ex rel. Bishop v. State Board of Corrections, 16 Utah 478, 52 P. 1090 (1898). See also Graham v. Thompson, 246 F.2d 805 (10th Cir.1957).

However, in 1980, an amendment to Article VII, section 12 narrowed the power of the Board of Pardons by striking the above-quoted language and substituting language which made the Board's power to grant parole subject to "such conditions as may be established by the Legislature...." Thus, the Legislature is specifically authorized to enact standards governing when persons convicted of various crimes are eligible for parole. With that fundamental change in the constitutional powers of the Board of Pardons, the Legislature is clearly authorized to require that certain classes of criminals serve specified minimum terms of imprisonment before becoming eligible for parole by the Board of Pardons.

The defendant also contends that the 1980 amendment was invalidly adopted because of certain procedural defects. We find no procedural errors in the manner in which the amendment was submitted to the people and voted upon. That the Legislature was aware of the intended effect of the amendment is clear from the defendant's own brief, which cites the Report of the Constitutional Revision Commission, Submitted to the Governor and the 42d Legislature of the State of Utah. That document states that the amendment was designed "to allow the Legislature to create a uniform parole and probation system" and to overrule the proposition that "the current Board of Pardons operates as a fourth independent branch and can adopt the policy for ... granting pardons." Id. at 32.

The defendant further argues that the sentencing scheme for the crime of child sodomy does not comport with the intent of requiring the Legislature to create a "uniform" system for parole. Compare id. with U.C.A., 1953, §§ 77-27-2, 77-27-7. The defendant admits, as he must, that a "uniform parole ... system" cannot mean that all prisoners must be paroled after serving the same amount of time. Rather, he claims that by requiring one category of convicts to serve a complete minimum sentence before becoming eligible for parole, while allowing other convicts to become eligible for parole prior to the expiration of the minimum sentence, the Legislature has created an inherently nonuniform system of parole. We disagree.

In the first place, the plain language of the amendment does not require that the parole system be uniform. Furthermore, a rational parole system necessarily requires classifications based on the nature of the crime, the likelihood of recidivism by those who commit a particular type of crime, the potential dangerousness of the particular type of criminal when released, and other factors bearing on the penal purposes of rehabilitation, deterrence, retribution, and protection of the public. It is not unreasonable to impose a minimum mandatory sentence on a person convicted of a crime when the danger to individuals and society is great and the risk of...

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