Iron County Prosecutors Drop Ag-gag Charges, Law Examined

Utah ag-gag charges dropped

Photo: Matthias M/Wikimedia Commons

Four animal activists who were allegedly on private property at a hog farm in Iron County in September have been released from charges of Utah’s agricultural interference law, also known as an ag-gag law. The activists will still face criminal trespass charges, and many are wondering when it comes to ag-gag laws, why trespassing charges aren’t sufficient and exactly who these other laws are protecting. In the case of many animal rights activists, they believe it’s not necessarily who is being protected but a certain type of misbehavior that is being protected.

Ag-gag in Iron County

The four activists from California and Maryland were members of a group known as the Farm Animal Rights Movement (FARM), and the hog farm was Circle Four Farms, a part of Murphy-Brown LLC, the livestock production subsidiary of the world’s largest pork producer. According to a report from the Salt Lake Tribune, the attorney for the activists, T. Matthew Phillips, stated that the four wanted to document the pigs’ journey from the farm to a California slaughterhouse.

According to the FARM website, they are a nonprofit group that is “working to end the use of animals as food through public education and grassroots activism.” While they claim that most of their programs are aimed at engaging “likely target audiences … and [nudging] them along the vegan path,” they also state that “[o]ccasionally, we seek to capture media attention through dramatic displays.”

Attorney Phillips says the Circle Four Farms incident was not one of these examples of “dramatic display.” In fact, he states that the four were actually on a public roadway and were only capturing images of farm buildings, not of the workers or animals.

However, the wording of Utah’s ag-gag law 76-6-112 states that a person is guilty of agricultural interference if they knowingly or intentionally record “an image of, or sound from, the agricultural operation” without the consent of the owner. The law specifies several acts that are prohibited, including leaving a recording a device on the premises, obtaining a job under false pretenses to record activity, recording activity as a regular employee of the facility, or trespassing on private property to get such images or sounds.

Given the fact that Iron County prosecutors are still charging the four activists with criminal trespass, they must differ with Phillips, however, Circle Four Farms stated that they didn’t wish to pursue the agricultural interference charges.

Ag-gag Under the Microscope and Put on Trial

Utah Rep. John G. Mathis (R-Vernal) sponsored HB 187 in 2012. The bill went through two revisions before being ultimately approved. According to an article in Deseret News, Mathis claimed the reason for sponsoring this bill was that he wanted to put an end to “animal-rights terrorists” out to destroy the agricultural industry. He was quoted as saying that animal protection groups such as FARM and People for the Ethical Treatment of Animals (PETA) were using these investigations as propaganda to promote their own organizations, especially in fundraising efforts.

Opposition to the ag-gag laws—which are currently on the books in five other states—say these laws are violations of the First Amendment and Fourteenth Amendment to the U.S. Constitution. They state that the First Amendment protecting free speech and press has specifically led to reform in the food industry in the past, citing such books as Upton Sinclair’s “The Jungle” which was pivotal in leading the government to pass the Meat Inspection Act and the Pure Food and Drug Act of 1906.

If convicted of criminal trespass, a class B misdemeanor per Utah Criminal Code 76-6-206, the four activists could face up to six months in jail and a fine of up to $1,000. Of the six states with ag-gag laws, only one other person has been charged with violation of the law. In February of 2013, Amy Meyer was charged for videotaping the operations at Dale Smith Meatpacking Company in Draper. However, charges against her were also dropped, with the reasoning cited as either public outcry or the fact that Meyer’s video footage showed that she was on public property at the time of her filming.

On a larger scale, in July of 2013, two national nonprofit organizations, the Animal Legal Defense Fund (ALDF) and PETA, filed a lawsuit against the State of Utah challenging the ag-gag law for violating the First and Fourteenth Amendments. Attorneys for the state attempted to argue that the case should be thrown out, however, according to an August 2014 article in the Salt Lake Tribune, U.S. District Judge Robert Shelby has refused.

Even though he didn’t dismiss the case, Shelby has said that at this point, the plaintiffs have failed to show how the statute has resulted in past injury as no one is currently being prosecuted under the statute or how it will cause future injury, but the case will still have its proverbial day in court which means it will have to stand up to further public scrutiny.

ABA, Utah Subcommittee Examine Criminal Justice System

ABA, Utah examines criminal justice system

Photo: Lonpicman/Wikimedia Commons

A task force created by the House Judiciary Committee in 2013 finished their study on the state of the United States’ criminal justice system in August of this year. The results of their hearings regarding how they believe the criminal justice system can be improved have recently been made public. At about the same time the federal task force was finishing their study, the Utah Commission on Criminal and Juvenile Justice (CCJJ) created a subcommittee to look at some of the same questions on a more local basis, specifically how to address Utah’s growing prison population.

ABA Pushes Criminal Justice System Reform

According to a report from the American Bar Association (ABA) Journal, in May of 2013, the House Judiciary Committee formed the Task Force on Over-Criminalization in response to an increasing number of federal crimes providing for prison sentences, including those cited by 2012-13 chair of the ABA’s Criminal Justice Section William N. Shepherd which criminalize behavior that often lacks “criminal intent.”

One of the first witnesses to appear at the Task Force on Over-Criminalization’s first hearing in June 2013, Shepherd called the current criminal justice system, “overburdened, expensive, and often ineffective”.

Originally the task force was only supposed to hold hearings for six months, but at the behest of the ABA and other groups, the task force continued to hold hearings through August 2014, providing a forum for discussing over-criminalization issues.

According to the task force ranking member Rep. Robert C. Scott, D-Va, one of the problems is the extreme number of crimes resulting in criminal penalties, many of which the ABA believes would be better handled by civil fines or noncriminal sanctions. Scott reported more than 4,000 federal criminal provisions plus hundreds of thousands of federal regulations imposing criminal penalties. Other troubling statistics include:

  • The cost of housing one federal inmate has reached $29,000 per year
  • 75,579 prisoners are currently serving mandatory minimum sentences (another area being examined by the ABA House of Delegates)
  • 99,246 prisoners are currently serving prison time for nonviolent drug offenses

Another area examined by the task force is the proliferation of collateral consequences and discretionary disqualifications in the current criminal justice system. As discussed in the previous Wednesday post, Collateral Consequences Addressed by Website, Legislation, a collateral consequence as defined by the ABA House of Delegates is a “legal penalty, disability, or disadvantage, however denominated, that is imposed on a person automatically upon that person’s conviction for a felony, misdemeanor or other offense, even if it not included in the sentence.”

The ABA made news recently with their free state-by-state database of collateral consequences. For more about that database and collateral consequences, click here.

According to the House of Delegates, a discretionary disqualification is similar to a collateral consequence or sanction, however the civil court, administrative agency or official over the case in question is not required to impose the disqualification.

In both of these instances, the ABA House of Delegates created a set of standards in 2003 by which they hoped to limit such consequences and disqualifications, especially if they negatively impacted reintegration by a former prisoner into society after they served their time.

Martin Heck, a former chair of the ABA Criminal Justice Section said that while some of these consequences serve important functions—such as keeping firearms out of the hands of violent offenders—others create more problems—such as denying professional occupational licenses.

In addition to these standards, the Clemency Project 2014 was also an effort aided by the ABA. The Clemency Project is an assemblage of lawyers and advocates from groups such as the ACLU, Families Against Mandatory Minimums, and the National Association of Criminal Defense Lawyers. Clemency Project screens federal prisoners convicted on nonviolent crimes in past years who might have received shorter sentences if convicted today, and when qualified, they provide pro bono assistance to the prisoners in seeking clemency.

Utah Examines Different Aspect of Criminal Justice System

In addition to some of these issues looked at by the Task Force on Over-Criminalization, at the request of Utah Governor Gary Herbert, the subcommittee of the Commission on Criminal and Juvenile Justice also studied recidivism rates—the rates of committing repeat offenses—which is considered one of the biggest problems in the Utah criminal justice system contributing to the rapid growth of the prison population.

Many proponents of increased prison sentencing and longer terms claim the result is less repeat offenders, however, multiple studies have actually shown this to be the opposite.

The Utah subcommittee also found numbers consistent with national statistics when it came to nonviolent offenders serving time in Utah prisons, with 63 percent of new offenders being imprisoned for nonviolent offenses.

For more information on the Utah subcommittee and a study of recidivism, click here.

Collateral Consequences Addressed by Website, Legislation

collateral consequences website and legislation

Photo: trudi1

While finding out the fines and prison sentences for a criminal conviction may be easily done without the need for contacting an attorney, one area that many people aren’t aware of before going into a trial (or after being convicted) are the collateral consequences of a conviction. These are the societal repercussions of being convicted of a crime after the fact, separate from the fines and prison time.

However, a new website developed by the American Bar Association (ABA) Criminal Justice Section hopes to make these consequences much clearer in an effort to assist not only the individual concerned but also lawyers, lawmakers, and advocacy groups. The Uniform Collateral Consequences of Conviction Act (UCCCA) is also addressing similar issues on a larger scale.

Collateral Consequences State-by-State

According to a report by the Uniform Law Commission (the proponents of the Uniform Collateral Consequences of Conviction Act), the Department of Justice has estimated that if imprisonment rates as measured in 2001 continue along the same path, approximately 6.6% of Americans born in that year will serve some form of prison time during their lives. Besides those serving time, a 2003 Department of Justice report stated that nearly 25% of the U.S. population had a criminal record.

That latter statistic plays heavily into the concerns regarding collateral consequences, as they may be imposed on an individual for being convicted of a crime even if the punishment for said crime doesn’t include prison time. Such consequences may include, but are not limited to, denial of the following:

  • employment
  • certain forms of professional licenses
  • acceptance to higher education institutions and financial aid
  • other forms of government assistance
  • housing

As it currently stands, many judges and lawyers are unaware of the full implications of collateral consequences in their jurisdictions as well of those of other states. This is where the free database developed by the ABA Criminal Justice Section enters the picture. Here a user can click on a state and see a full listing of the state’s collateral consequences.

For example, clicking on the state of Utah brings up 688 examples of such consequences. While some would be expected, such as the inability to serve as a law enforcement officer or lawyer with a felony conviction, some may come as a surprise to people, such as the inability to get a cosmetologist or fingernail technician license with a controlled substances offense.

According to ABA President William C. Hubbard, “While some collateral consequences of conviction serve meaningful public safety goals, many only limit a formerly incarcerated person’s ability to find work and reintegrate into society … This, in turn, imposes high social and economic costs including increased crime, increased victimization, increased family distress, and increased pressure on already-strained state and municipal budgets.”

The Universal Collateral Consequences of Conviction Act

In 2009, the Uniform Law Commission, a non-partisan group of lawyers, judges, legislators, and law professors, promoted an attempt to remedy the problems being caused by out-of-control collateral consequences. This remedy was known as the Universal Collateral Consequences of Conviction Act (UCCCA).

According to the Uniform Law Commission website, in a nutshell, the UCCCA “provides states with a process whereby defendants are both notified of indirect penalties [read: collateral consequences] that may attach to their convictions, and have an opportunity for partial relief from those penalties, when appropriate.”

In order to bring this about, the UCCCA addresses several aspects of collateral consequences, including:

  • Collection in one document of all collateral consequences in state law and regulations, and provisions for avoiding or mitigating them.
  • Notification for defendants of such consequences at key points in a criminal case, including at or before formal notification of charges and again at sentencing. Section 5 of the UCCCA instructs trial courts to confirm that the defendant has received such notification and has the opportunity to discuss the consequences with counsel.
  • Standards that decision-makers for such things as housing or employment must follow when considering imposing collateral consequences. The essential elements, facts, or circumstances of the person’s crime must be related to the benefit or opportunity at issue before disqualifying them.
  • Relief from collateral consequences that may come about if a conviction has been overturned or pardoned, or if charges have been dismissed pursuant to deferred prosecution or a diversion program.
  • In addition, UCCCA created two different forms of specific relief. An Order of Limited Relief allows a court or agency to lift an automatic barring of a collateral sanction, allowing licensing or housing agencies to consider whether to uphold the sanction. A Certificate of Restoration of Rights provides public and private employers, landlords and licensing agencies with “concrete and objective information about an individual under consideration for an opportunity or benefit” including their progress toward rehabilitation, in an attempt to help those individuals reintegrate into society.

Currently the UCCCA has been endorsed by the ABA; introduced in Minnesota, New York, and the U.S. Virgin Islands; and enacted in Vermont. The Uniform Law Commission hopes that more states will continue to enact the UCCCA in an attempt to increase clarity regarding collateral consequences, fairness and competence in legal representation, and successful reintegration for ex-offenders who have proven that they are capable of re-entering society.