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Show Judge K L. Mclff Explains His Reasoning In North Star Sentencing Editor's Note: Judge K.L. Mclff prefaced his sentencing of North Star defendants on Friday with the following explanation. We print it in near entirety for your information. informat-ion. I'd like to begin by expressing appreciation to all of you who have contributed in the sentencing hearing hear-ing today and I wish you to know that I have undertaken and listened to the things that you've said. I also wish you to know that it's immensely difficult case. Perhaps the most difficult one that has occurred in our jurisdiction over many years. There have been times during the course of the proceedings and especially today, that you wish the responsibility was not yours. Or, that you could call your mother who has always given you good advice and see what she recommended. recom-mended. Unfortunately, that's not possible. I think everyone here is conscious of what truly was a great tragedy. To lose a bright, young person, even someone who had some difficulties in his life, is something that none of us would have hoped for; none of us would have anticipated. It's simply something some-thing that is tragic by every measure. mea-sure. I'd like to give you some idea of the things I thought about and considered as I dealt with the obligation that is mine. I hope you can understand the things I say and I ask you to try to do that. I ask that of the Bacons, the Bacon family, I ask that of others who are here who have suffered similar losses. I ask that of the defendants, their lawyers and prosecutors. I'd like you to know that I have received literally scores and scores - - - - of letters. Perhaps over one hundred. This huge stack of letters has been received by me and I have read every one of them. I've read them carefully. For the most part they have been thoughtful. People have desired to be helpful. I've tried to give them fair consideration. I'll give you an idea how broad-based broad-based is their origin. I've made a list. I received letters from a host of cities in Idaho, Utah, California, Arizona, Oregon, Arkansas, Texas, South Carolina, New Mexico, Colorado, Illinois, Missouri, Wisconsin Wis-consin and Florida. With a few exceptions, they have been well-tempered and thoughtful. I'm frankly amazed at the diversity of backgrounds that exist among the people who have had difficulty with their children and who have sent their children to this program. It is apparent to me that no one has a monopoly on problems at home and problems in rearing children. I've received letters from doctors, nurses, lawyers, investment invest-ment brokers, bankers, psychologists, psychol-ogists, social workers, law enforcement enforce-ment officials, educators, both teachers tea-chers and administrators including those from every level, college, high school and elementary school. From dentjsts, religious leaders, bishops, ministers and pastors, criminologists, probation officers, fire fighters, even a television producer pro-ducer and director who had problems with his child. And the list goes beyond that. In addition I have received letters from family members and friends, wives, husbands, and dependents. The letters that have come from children in the program or from parents of children in the program were remarkably similar. They talk of rebellion and of drug use and drug selling, promiscuity and sexual activity with other young people, gang affiliation and living ' on the streets, pornography, incorrigibility. incorri-gibility. The most common thread in all of these letters is absolute desperation desper-ation on the part of the parents,. More often than not this desr peration has been preceded by their childrens' trip to juvenile hall and sometimes by hospitalization. Frequently, Fre-quently, by expensive counseling sessions with psychologists and psychiatrists. And out of these common feelings of desperation, they have, sent their children to either this program or to some other programs. pro-grams. In some instances the consequences con-sequences have been tragic as they were with Aaron Bacon and as they were with two other young people. But there has also been literally scores and scores of stories where their parents feel that their children live have been saved. Where they have received their children back. Where they have new relations hips and their children have returned to succeed in school and enter college. Some of the letters talk of scholarship achievement. Many of them express appreciation of a life-saving life-saving nature. People whom their, children were assigned to or with who they were . . . Frankly, I find myself with an incredibly paradoxical situation where it's comparable to the best of times, worst of times scenario. One hand I have the Bacons and others who have lost a child. You suffered he most tragic of all consequences. And then on the other hand I have these (referring to the stack of letters) who felt that they have regained a child. As I've listened to the evidence at the preliminary hearing and now the trial and read information, on and off, throughout a period now approaching two years. It's become clear to me that there is no one who intended what happened, but that there's clear evidence that greater care should have been taken. The tragic day-by-day decisions, which proved to be life or death decisions were left to extraordinarily young men, inadequately trained, who were called upon to make decisions which should have been made by more mature people with better training. It's not an easy assignment to try to find a balance between everything every-thing I have heard and read and to try to find some sense of justice. I've indicated that I have received letters from parents. I think there are parents here who lost children in other wilderness programs. When I became involved with this case I did not realize that there would come a time when I would be called upon not only to administer justice in this case but somehow administer justice with respect to other cases. As much as I would like to do so, it's very difficult for me to try to right all of the wrongs that have existed in youth wilderness programs at other times and other places. Of the letters I have received, the overwhelming number are supportive of the defendants and the program they operate. But, that's understandable because I think that they were probably sought on behalf of those who have benefited from their program. And it only takes one tragic consequence to overshadow a bushel full of successes. That's just in the nature of it. We focus on the one because it simply cries out to us. The North Star program is now out of existence. That was the inevitable consequence once the charges in this case were filed. There are many, many who have expressed the opinion that that was an unfortunate loss for society as a whole. I do not have the full answer for that. I know that there were mistakes that brought major consequences. But it is also clear to me that all of us, in the society in which we live, recognize that we are struggling. That the drug culture, especially, has infiltrated our schools and our homes and that we seem, virtually helpless in stemming the tide which leads so many of our young people into paths of self-destruction. Whatever may be said about the people in the North Star program and the principals and the lack of due care, I believe, is obvious. But we still must acknowledge that they were engaged in an effort which they believed was going to benefit young people. And that is something that I cannot totally disregard. After much study and soul-searching soul-searching and after considering everything which anyone has sought to offer, I have determined to craft the sentence in a manner to which seems to be the best designed to achieve a just result. To the Bacons and others who have suffered tragic loses, I think that you ought to know that the fight which you have waged is one which you have not fought alone. And you acknowledged that in your presentations to the court today. The state of Utah and particularly par-ticularly Garfield County have expended ex-pended major resources literally, hundreds of thousand of dollars to try to achieve a just result in your case. You simply have to be aware and appreciative of that massive and valuable undertaking. I'd like to comment briefly about what I perceive has happened within the sentencing over the years as I have been associated with the criminal justice system. I hope this will help to lay a foundation for what I intend to do. As a people we have become preoccupied, in recent times, with a notion that jail, lock-up, is the only appropriate response for violation of the criminal code and the, only way that we can inflict adequate punishment. That idea has become central to virtually every political campaign, including the one's that are upon us now. We almost assume that we can imprison our way to civility and civic decency. And our lack of imagination in how to treat offenders, coupled with our anger and frustration and all of us share it has filled our jails until they are bulging at the seams. The number of prisoners and prisons in America has grown by gargantuous proportions during the last decade or so. If you watched the news last evening you heard the governor of the state of Utah indicate that the number of inmates in Utah's lock-up facilities have t doubled over the last four years. You also heard in the same newscast that we are retrieving from the state of Texas hundreds of prisoners that we sent down there for incarceration, four of whom escaped, so we decided we should return the other 96 for that reason. We have little room. We have become less discriminating in our disposition and in our sentencing philosophy. We have become less willing to consider alternatives so that we end up housing many people creating an inability to incarcerate those who present a clear and present danger upon us. I put together some simple figures to illustrate the costs associated asso-ciated with sentencing and I'd like to share them with you. Because I've tried to evaluate them as I thought about the situation here in Garfield County. When I sentence someone to jail, the approximate cost of keeping that person is $30 to $35 per day. But that is not the only economic impact. If that defendant is a non-violent person, with productive capacity and poses no threat of risk to society, then, if I craft some kind of sentence that allows us to utilize that productivity, then, rather than subtracting from public resources, it adds to them. And here is a simple example with numbers: if I sentence a defendant to six months in jail, the cost to the county is 180 days times $30 or $5,400. If the same person can render productive community service, I multiply that 180 days by eight hours a day times $5 an hour ( a modest rate) and I arrive at $7200. So the overall cost of just one six month jail sentence is in excess of $12,000. There are many times that I have no option because the person poses a serious threat. If I let the person out on the street, that person may rob or kill or maim or commit some other violent crime. Now, with that background, I would like to talk with you a few moments about these defendants. As I have told you, I have carefully reviewed everything that has been supplied to me, including what we refer to as presentence reports. These documents are extensive and they are prepared by the Department of Adult Probation and Parole. They give- me a life history virtually vir-tually of each one of the defendants. They help me understand that persons proclivities, the things about that person so that I can hopefully craft a sentence which will be just and hopefully protect the public. In an effort to introduce objectivity and some uniformity into the system, the department has adopted what it calls a matrix. One of the lawyers mentioned that the matrix works like this. Every defendant is given a rating based on background factors which the department looks at. Ratings range from zero to 28. The highest possible category is zero, even though it is the lowest number. The lowest rating that a defendant can receive is 28. The department has adopted a policy that a defendant has to score 1 6 or above to receive an outright recommendation of jail or prison. Each of the defendants in this case scored zero, based on the department's criteria. Each one achieved the most favorable score attainable based on their background, back-ground, their history and based on everything they could find out about them. Each one qualified for the title "excellent candidate for probation." Now the department has aggravating and mitigating factors which it inserts. And you heard something about that during the arguments. By way of aggravation in this case, the department has identified vulnerability of the victim, vic-tim, cruelty of the offense and the victims dependence upon persons having authority. Those are significant. signi-ficant. But on the other hand, they have identified mitigating factors which included the defendants amenability to supervision, the existence of good employment, the fact of an arrest-free background. And in some instances, it is appropriate to consider the young age. It has been accurately pointed out to me that we ended up with boys supervising boys and the consequences were tragic. If I exercise the discretion which I have by incarcerating everyone who people want incarcerated, people who are offended and people who rightfully feel that they have been badly abused, then I would end up not being able to incarcerate or retain in lock-up facilities, people who pose the greatest threat to us. And so it becomes my obligation to try to evaluate that to try to balance it. To try to find out who ought to be in jail and who can best be productive outside of that setting. & t , And now, as a final preface, I just want to share a couple of personal thoughts and feelings about the case. I am sure it is an understatement to say it's not been an easy case. That it has been extremely costly and time consuming. It has been fiercely contested. The lawyers energetically represented their clients. Some of you have lived with the case since day one. Certainly that's true of the Bacons who suffered the greatest loss of all. It is also true of the defendants. The media coverage has been expansive locally, statewide as well as nationally. The public interest has been high but not unanimous. Each one of us wants justice as we perceive it. I assure you that is the ultimate objective which I hope for. It is interesting to me that even through the impact has been grossly different for the Bacons and the defendants, it has also been soul and gut-wrenching for both of them; but in a different way. And our system unfortunately, as counsel pointed out, our system doesn't allow healing very well. As soon as the case is filed, as soon as it happens, the defendants are encouraged not to say anything. Not to make any admissions. So consequently, it becomes more difficult as time goes on. The ordinary purposes of sentencing senten-cing seem somehow not applicable in this case. Rehabilitation is hardly a factor when you're dealing with persons whose backgrounds evidenced solid citizenship. The matter of deterrence is less applicable when the major offense produces some unintentional consequences. Certainly, there were some unintentional acts here that were performed both the consequences were not unintentional and so deterrence is not so easily achieved. But this much is true. There is a certain amount of deterrence that will arise from this case by the sheer fact that it's filed. By the sheer fact that these people have been called upon to answer. Once these charges were filed, there has been a deterrent effect in a way that entered every program like this in the system. Restitution, an important part of sentencing unfortunately is not possible. If, by a sentence, I could turn the clock back and restore life, that would be the easiest thing for me to do and I would do it immediately, whatever the sentence was. Now there has been talk about retribution and revenge. I am not suggesting that is a motivation. The Bacon family said that they wanted justice, not revenge- and I accept that. I assure you that revenge is not a very satisfying thing for the accused or accuser or to the victim. Yet, I know that in this case that punishment is appropriate. That punishment has to be meted out. Punishment is an interesting thing. It depends so much on the person you punish. I see people I sentence all the time for whom jail means nothing, it is an inconsequential sentence. I see other people who, because of their sensitive and caring nature, already suffer pain far beyond my ability to impose. After I have sorted through all the factors in this case and asked myself what is this case ultimately about, what are we really asking for. I concluded more than anything else that this case is about stewardship and accountability. About people who assumed the care of young lives and who paid insufficient attention to the responsibility that they had. As Mr. Henry said "someone died on his watch" and that is something that will haunt Mr. Henry and these other defendants for as long as they live. By entering guilty pleas, they have acknowledged accountability and responsibility. It is hard for any of us to put ourselves in the position of the parents but I think if I were a parent,( in this situation ?? ) more than any other single thing, I would want somebody to step forward and say, "I am accountable and accept responsibility for the death of the child." That would have a greater bearing on me than anything else that happens in proceedings of this nature. There will arise as a by-product of this case, I believe, an increased awareness on the part of anyone who is associated with a youth wilderness program. If the Bacons are to receive any satisfaction at all, and it may be precious little, I recognize that. If you are to receive any satisfaction from this incredible ordeal which you have gone through it will have to come from the fact that the charges were filed, that people have acknowledged responsibility and that the tremendous loss which you have suffered will not go unnoticed in the state of Utah and its regulatory people and everyone else who has anything to do with this type of program will move it up a notch. (See Judge Mclff Explains On Page 5A) Judge Explains From Page 4A It may not be enough, but it's going to go up a notch and it will come as a result of the loss that you have suffered. Now with that preface I realize it's a long one I would like all of the defendants to stand and come up to the table. |