HB257′s sponsor acknowledged the bill is aimed at Utah County Attorney David Leavitt, an outspoken proponent of pre-filing diversion programs.
When lawmakers propose criminal justice reform efforts, they often refer to a bill’s ability to add another tool in a prosecutors’ metaphorical “toolbox” they use to ensure justice.
But some county attorneys say a new piece of legislation, HB257, will choose the tools for them: A hammer and an ax.
“What 257 does is to say, as prosecutors, ‘You can only have an ax to chop people’s limbs off and only have a hammer to crush people with,’ ” said Davis County Attorney Troy Rawlings.
The bill, sponsored by Rep. Kay Christofferson, R-Lehi, would put limits on pre-filing diversion programs, a tool often used by prosecutors to keep people accused of minor crimes out of the criminal justice system and connected to resources that could help them.
It would prohibit prosecutors from using public funds for these programs and would require them to get permission from their local sheriff and police chiefs before implementing it.
Some elected prosecutors in Utah say this is an effort to strip them of their power and that it is aimed at one county attorney in particular.
“It’s clearly a bill targeting me,” said Utah County Attorney David Leavitt.
The bill’s Senate sponsor, Mike McKell, R-Spanish Fork, confirmed as much.
“I will acknowledge I have many concerns with the direction my Utah County prosecutor office is going right now,” McKell said. “There’s no question.”
Leavitt has been outspoken about his efforts to reform the criminal justice system since he was elected in 2019. His policy changes have met some resistance, including from former attorneys in his office.
One of the first reform efforts Leavitt implemented was a pre-filing diversion program. The diversion program requires participants to enter into an agreement with his office that if they complete community service, life classes or drug treatment, prosecutors won’t file charges against them. It is not intended for violent offenders or serious crimes, but for people who are accused of low-level offenses who could be helped instead of punished.
Salt Lake County Attorney Sim Gill runs a similar program.
“Meaningful and accountable reforms do not need to happen post-filing,” Gill said. “It can happen pre-filing. Especially when some of the collateral consequences can be disproportionate.”
Gill said his program has been a success. It has been in place nearly two years, and had 253 successful graduates. There were 32 people who did not complete the program. He said those who went through the program had a recidivism rate of 16%, while 94% of unsuccessful participants went on to commit new crimes.
The three elected prosecutors said that they believe HB257 is an attack on their discretion to decide what to do in the courtroom. They said they were not consulted about the legislation until after the bill became public.
“I respect the Legislature’s right to make law,” Leavitt said. “But I absolutely insist as a member of the executive branch of the government to have my prosecutorial discretion. They can pass any law they want to but it’s not going to alter what I do.”
A substitute bill is expected soon, McKell said, to address the county attorneys’ concerns that the legislation went too far.
Christofferson said he consulted with a former prosecutor when drafting the bill with the goal to “standardize” pre-filing diversion programs. He added there was not a specific problem within the criminal justice system he was trying to address.
“What I’m trying to do is say let’s develop a framework so that not everyone is doing a different policy,” he said.
Leavitt and Rawlings both believe that a former Utah County prosecutor worked with Christofferson on the bill.
The Davis County Attorney said he felt Christofferson was misled.
“It’s clearly targeted at what’s going on in Utah County,” Rawlings said. “We don’t want to see the ability to have a tool taken just because somebody doesn’t like what’s happening in a different county.”