                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2014 UT 39

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH
                           ANDREW LEBEAU,
                              Petitioner,
                                      v.
                             STATE OF UTAH
                               Respondent.

                            No. 20120829
                      Filed September 19, 2014

            On Certiorari to the Utah Court of Appeals

                   Third District, West Jordan
               The Honorable Terry L. Christiansen
                         No. 091400631

                                Attorneys:
  Joan C. Watt, Brittany D. Enniss, Salt Lake City, for petitioner
  Sean D. Reyes, Att’y Gen., Jeanne B. Inouye, Asst. Att’y Gen.,
                 Salt Lake City, for respondent

   JUSTICE PARRISH authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
                   and JUSTICE DURHAM joined.
              JUSTICE LEE filed a dissenting opinion.


   JUSTICE PARRISH, opinion of the court:
                          INTRODUCTION
   ¶ 1 On certiorari, petitioner Andrew LeBeau asks us to
consider whether the court of appeals erred in affirming the district
court’s imposition of a sentence of life without the possibility of
parole following Mr. LeBeau’s conviction for aggravated kidnapping
pursuant to Utah Code section 76-5-302. Mr. LeBeau’s conviction
stems from a domestic dispute triggered by Mr. LeBeau’s suspicion
that his then-girlfriend, Stephanie, was engaged in an affair with
another man. At trial, Mr. LeBeau was convicted of aggravated
                          STATE v. LEBEAU
                        Opinion of the Court

kidnapping, aggravated assault, and cruelty to an animal.1 The
district court imposed a sentence of life without the possibility of
parole (LWOP) for the aggravated kidnapping conviction, which
was to run consecutively to Mr. LeBeau’s lesser sentences for the
other convictions.
    ¶ 2 Mr. LeBeau unsuccessfully challenged his sentence of
LWOP before the court of appeals. He now argues that the court of
appeals erred when it affirmed the district court’s imposition of
LWOP because the district court failed to properly consider whether
the interests of justice warranted a lesser sentence as allowed for in
Utah’s aggravated kidnapping statute. Because we conclude that the
district court improperly applied the sentencing provisions of
section 76-5-302 of the Utah Code, we reverse Mr. LeBeau’s sentence
of LWOP and remand for new sentencing.
                          BACKGROUND
   ¶ 3 In early 2009, Mr. LeBeau and Stephanie were living
together, but they were experiencing trouble in their relationship.
Stephanie had moved out of their shared home for a period of time
before returning and, according to Mr. LeBeau, had been unfaithful
during the relationship. Both Stephanie and Mr. LeBeau struggled
with drug addiction. In early February, Stephanie moved out of the
couple’s shared bedroom but continued to live in the house.
    ¶ 4 The couple was acquainted with a man named Mark, from
whom they occasionally purchased drugs. In February 2009, Mr.
LeBeau began to suspect that Stephanie was having an affair with
Mark. On February 23, 2009, Stephanie spent the afternoon and
evening with Mark. Mr. LeBeau repeatedly called Stephanie and
sent her text messages, but she ignored him. When Stephanie
returned home sometime between 10:30 and 11:00 that night, Mr.
LeBeau angrily confronted her about where she had been. Stephanie
testified that Mr. LeBeau became violent when she refused to explain
where she had been and began hitting and choking her.
    ¶ 5 As the argument escalated, Mr. LeBeau forced Stephanie
to accompany him to the garage, where he threatened to bind her
with duct tape and continued to behave violently. Mr. LeBeau
placed his dog in the back seat of Stephanie’s car before forcing
Stephanie to get into the front seat, telling her they were going for a


   1
     Prior to trial, Mr. LeBeau also pled guilty to failure to respond
to an officer’s signal to stop.

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“fast ride.” Mr. LeBeau then got into the driver’s seat and began to
drive toward Mark’s house.
   ¶ 6 As Mr. LeBeau drove, he attracted the attention of Sergeant
Marcelas Rapela of the Midvale Police Department. Sergeant Rapela
began to follow the couple’s car, ultimately signaling Mr. LeBeau to
stop with lights and siren. Stephanie testified that she repeatedly
asked Mr. LeBeau to pull over. Rather than stopping, Mr. LeBeau
continued toward Mark’s house. Mr. LeBeau initially turned onto
Mark’s street heading in the wrong direction. While turning the car
around, Mr. LeBeau nearly crashed into Sergeant Rapela’s patrol car
and accelerated rapidly toward Mark’s house.
    ¶ 7 As the car accelerated, Stephanie opened the passenger
door in an attempt to jump from the car. Officer David Wilson, who
had arrived to assist Sergeant Rapela, observed Stephanie’s foot
dragging along the road as the car accelerated. As the car raced
down Mark’s street at approximately sixty miles per hour, it collided
with Mark’s box-style truck, which was parked at the end of the
street.
    ¶ 8 Stephanie was thrown from the car on impact. Officer
Wilson testified that he observed Stephanie’s body ricochet off the
passenger-side door as the collision occurred. Stephanie suffered
extensive injuries, including a broken eye socket, fractured femur,
fractured pelvis, broken arm, and shattered ankle. Mr. LeBeau’s dog
was also injured in the crash and required surgery. Mr. LeBeau did
not suffer any significant injuries.
    ¶ 9 The State charged Mr. LeBeau with aggravated kidnapping
based on the serious bodily injury Stephanie suffered, attempted
murder, aggravated assault, failure to respond to an officer’s signal
to stop, and cruelty to an animal. Mr. LeBeau pled guilty to failure
to respond to an officer’s signal and was convicted by a jury of
aggravated kidnapping, aggravated assault, and cruelty to an
animal. Though the State argued at trial that Mr. LeBeau
intentionally crashed into Mark’s truck in an attempt to kill
Stephanie, Mr. LeBeau claimed the collision occurred while he was
distracted trying to keep Stephanie from jumping out of the car. The
jury acquitted Mr. LeBeau of attempted murder.
   ¶ 10 At Mr. LeBeau’s sentencing hearing, the court determined
that the sentencing matrices created by the Utah Sentencing
Commission were not applicable to Mr. LeBeau’s case because
Utah’s aggravated kidnapping statute created “a minimum
mandatory type sentence.” As a result of this determination, the

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                        Opinion of the Court

court began with a presumptive sentence of LWOP and then
proceeded to consider whether the balance of aggravating and
mitigating factors warranted a reduction in Mr. LeBeau’s sentence
to one of the statutorily allowed lesser sentences. The court
identified two aggravating factors on the record. First, it found that
Mr. LeBeau’s continued refusal to accept responsibility for his
actions was an aggravating factor. Second, the court expressed
concern about the serious injuries Stephanie suffered as a result of
Mr. LeBeau’s conduct.
    ¶ 11 The court then considered, and rejected, several mitigating
factors raised by Mr. LeBeau. First, Mr. LeBeau claimed to have
acted under a strong provocation because he believed Stephanie was
having an affair with Mark. The court rejected this mitigating factor,
stating, “There was no evidence presented that [Stephanie] was
having an affair. There was no evidence that she was involved in a
sexual relationship.” Second, Mr. LeBeau claimed to have a good
employment history and strong family ties, both of which indicate
rehabilitative potential. The court rejected Mr. LeBeau’s claim
relating to his employment history, stating, “You were unemployed
at the time of this incident. I don’t know how you can say that was
exceptionally good employment.” Similarly, the court refused to
consider Mr. LeBeau’s family ties as a mitigating factor because Mr.
LeBeau had not “seen [his] mother or . . . sister for years at the time
they came to testify at trial.” Finally, Mr. LeBeau claimed that he
had an extended period of arrest-free time prior to this incident. The
court rejected this mitigating factor because Mr. LeBeau had an
outstanding arrest warrant in Alabama and had admitted to using
illegal drugs during that time period. The court found that the fact
that Mr. LeBeau had not been arrested for, nor convicted of, an
offense for several years prior to this incident did not necessarily
mean that Mr. LeBeau had been law abiding. The court thus refused
to consider Mr. LeBeau’s relatively minor criminal history a
mitigating factor.2


   2
     The district court did consider other mitigating factors not
presently before us. The court credited Mr. LeBeau with two
mitigating factors: (1) that Mr. LeBeau’s imprisonment would work
a hardship on Mr. LeBeau’s dependents, and (2) that all of Mr.
LeBeau’s convictions arose from a single criminal episode. The court
also rejected Mr. LeBeau’s claim that his imprisonment would
compromise his ability to make restitution, finding that the likeli-
                                                       (continued...)

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                       Opinion of the Court

    ¶ 12 After weighing the aggravating and mitigating
circumstances, the district court found that the aggravating
circumstances were “substantial” and the mitigating circumstances
“almost non-existent.” It then imposed LWOP for the aggravated
kidnapping conviction, the most severe sentence allowed under
Utah Code section 76-5-302. The court also sentenced Mr. LeBeau to
zero to five years for both the aggravated assault and failure-to-
respond convictions. Finally, the court imposed a suspended
sentence of 180 days for the cruelty-to-an-animal conviction and
ordered Mr. LeBeau’s lesser sentences to run consecutively with his
LWOP sentence.
    ¶ 13 Mr. LeBeau timely appealed, arguing that the district court
abused its discretion in imposing a sentence of LWOP for his
aggravated kidnapping conviction. State v. Lebeau, 2012 UT App 235,
¶ 16, 286 P.3d 1. Specifically, Mr. LeBeau argued that the district
court failed to adequately consider the interests of justice, as
required by Utah Code section 76-5-302(4). See infra ¶ 24. According
to Mr. LeBeau, the district court abused its discretion by (1) failing
to consider as a mitigating factor that Mr. LeBeau acted under
provocation, (2) failing to give adequate weight to Mr. LeBeau’s
family support and employment history, (3) failing to credit Mr.
LeBeau with his relatively minor prior criminal history, and (4)
imposing LWOP without consideration of the proper role of the
Board of Pardons and Parole in evaluating the rehabilitative
prospects of offenders. LeBeau, 2010 UT App 235 ¶¶ 13, 28, 30.
   ¶ 14 The court of appeals rejected Mr. LeBeau’s arguments and
upheld his LWOP sentence. Id. ¶ 37. The appeals court found that
the district court “expressly considered all of [Mr. LeBeau’s]
mitigating evidence” and that Mr. LeBeau had “demonstrated no
more than his disagreement with how the court weighed the
mitigating factors.” Id. ¶ 29. Additionally, the appeals court
reasoned that Mr. LeBeau’s LWOP sentence was the presumptive
sentence prescribed by the Legislature and was, therefore,
appropriate. Id. ¶¶ 34–36.
    ¶ 15 We granted certiorari on the question of “[w]hether the
court of appeals erred in affirming the district court’s imposition of
a sentence of life without parole pursuant to Section 76-5-302(3) of


   2
   (...continued)
hood that Mr. LeBeau would ever be able to make restitution was
remote.

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                            STATE v. LEBEAU
                          Opinion of the Court

the Utah Code.” We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(a).
                      STANDARD OF REVIEW
    ¶ 16 “On certiorari, we review the decision of the court of
appeals and not that of the district court.” State v. Brake, 2004 UT 95,
¶ 11, 103 P.3d 699. We review the decision of the court of appeals
for correctness, granting “no deference to its conclusions of law.”
State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650 (citing another case). To
determine whether the court of appeals erred in affirming Mr.
LeBeau’s sentence requires that we consider the standard of review
applicable to the court of appeals’ review of the sentence. When
reviewing a district court’s sentencing decision, appellate courts
“traditionally afford[] the [district] court wide latitude and
discretion.” State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985 (alteration
in original) (internal quotation marks omitted). An appellate court
will, therefore, only set aside a sentence if the sentence represents an
abuse of discretion, if the district court “fails to consider all legally
relevant factors, or if the sentence imposed is clearly excessive.”
State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (footnote omitted)
(internal quotation marks omitted). However, a district court’s
sentencing determination constitutes an abuse of discretion if such
determination is based on an erroneous interpretation of law. See
State v. Barrett, 2005 UT 88, ¶¶ 14–17, 127 P.3d 682.
                               ANALYSIS
         I. UTAH’S AGGRAVATED KIDNAPPING STATUTE
    ¶ 17 Mr. LeBeau was convicted of aggravated kidnapping
pursuant to section 76-5-302 of the Utah Code. Section 76-5-302
defines aggravated kidnapping as a first degree felony and
establishes a complex sentencing scheme that contemplates a range
of possible sentences based on the seriousness of the offender’s
conduct. Mr. LeBeau was sentenced pursuant to subsection (3)(b),
which establishes that aggravated kidnapping resulting in “serious
bodily injury to another” is punishable by LWOP, “except as
provided in Subsection . . . (4).” UTAH CODE 76-5-302(3)(b) (2008).
Subsection (4), in turn, allows a sentencing court to impose an
indefinite term of six, ten, or fifteen years to life if it finds that doing
so would be “in the interests of justice.”3 Id. § 76-5-302(4).


   3
       The relevant subsections of Utah’s aggravated kidnapping
                                                    (continued...)

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                         Opinion of the Court

    ¶ 18 The heart of Mr. LeBeau’s challenge concerns the proper
interpretation of subsections (3)(b) and (4). Mr. LeBeau argues that
the district court failed to adequately consider the “interests of
justice” when sentencing him to LWOP. Though the court did
consider whether Mr. LeBeau’s sentence should be reduced, it did
so by starting with a presumptive sentence of LWOP and then
considering “the aggravating and mitigating circumstances” of the
crime to determine if Mr. LeBeau’s sentence should be reduced to
one of the lesser terms allowed for in subsection (4). Though the
district court did not expressly state its reasoning, it appears to have
interpreted the Legislature’s use of the phrase “interests of justice”
as equivalent to the “aggravating and mitigating circumstances”


   3
    (...continued)
statute provide:
      (3) Aggravated kidnapping is a first degree felony punish-
      able by a term of imprisonment of:
              (a) except as provided in Subsection (3)(b), (3)(c),
              or (4), not less than 15 years and which may be for
              life;
              (b) except as provided in Subsection (3)(c) or (4),
              life without parole, if the trier of fact finds that
              during the course of the commission of the aggra-
              vated kidnapping the defendant caused serious
              bodily injury to another; or
              (c) life without parole, if the trier of fact finds that
              at the time of the commission of the aggravated
              kidnapping, the defendant was previously con-
              victed of a grievous sexual offense.
      (4) If, when imposing a sentence under Subsection (3)(a)
      or (b), a court finds that a lesser term than the term
      described in Subsection (3)(a) or (b) is in the interests of
      justice and states the reasons for this finding on the
      record, the court may impose a term of imprisonment of
      not less than:
              (a) for purposes of Subsection (3)(b), 15 years and
              which may be for life; or
              (b) for purposes of Subsection (3)(a) or (b):
                       (i) 10 years and which may be for life; or
                       (ii) six years and which may be for life.
UTAH CODE § 76-5-302(3)–(4).


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                         Opinion of the Court

recognized by the Utah Sentencing Commission as part of its
sentencing guidelines. Mr. LeBeau asserts that this was in error
because the Legislature’s use of the phrase “interests of justice”
requires consideration of factors beyond the aggravating and
mitigating circumstances of his particular crime. Specifically, Mr.
LeBeau argues that the district court was required to consider (1) the
severity of an LWOP sentence, (2) whether a sentence of LWOP was
proportionate to the seriousness of Mr. LeBeau’s crime, and (3) Mr.
LeBeau’s rehabilitative potential. Further, Mr. LeBeau argues that
the district court erred when it rejected several of Mr. LeBeau’s
proposed mitigating factors by employing incorrect legal standards
in its analysis.
    ¶ 19 Our task of reviewing Mr. LeBeau’s sentence requires that
we interpret section 76-5-302 of the Utah Code, which calls for the
imposition of a sentence of LWOP unless the interests of justice
dictate a lesser sentence. We note, first, that any error on the part of
the district court in its interpretation of subsection (4)’s interests-of-
justice language would be harmless if the district court were free to
sentence Mr. LeBeau to LWOP without considering the interests of
justice in the first instance. Thus, the threshold question is whether
the district court was required to engage in an interests-of-justice
analysis prior to sentencing Mr. LeBeau to LWOP under subsection
(3)(b). Because we conclude that the court was so required, we then
turn our attention to the proper meaning of “interests of justice” as
used in subsection (4). Finally, we consider Mr. LeBeau’s claim that
the district court erred when it rejected several of his proposed
mitigating factors.
II. THE DISTRICT COURT WAS REQUIRED TO CONDUCT AN
 INTERESTS-OF-JUSTICE ANALYSIS PRIOR TO SENTENCING
                  MR. LEBEAU TO LWOP
    ¶ 20 As with any question of statutory interpretation, our
primary goal is to effectuate the intent of the Legislature. State v.
Watkins, 2013 UT 28, ¶ 18, 309 P.3d 209. The best evidence of the
Legislature’s intent is the statute’s plain language. Marion Energy,
Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863. “We
presume that the [L]egislature used each word advisedly and give
effect to each term according to its ordinary and accepted meaning.”
Taylor ex rel. C.T. v. Johnson, 1999 UT 35, ¶ 9, 977 P.2d 479 (internal
quotation marks omitted). Further, “we interpret[] statutes to give
meaning to all parts, and avoid[] rendering portions of the statute
superfluous.” Watkins, 2013 UT 28, ¶ 23 (alterations in original)
(internal quotation marks omitted). To do so, “we read the plain

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                         Opinion of the Court

language of the statute as a whole, and interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (internal
quotation mark omitted).
     ¶ 21 Subsection (3)(b) of Utah’s aggravated kidnapping statute
directs sentencing courts to impose a sentence of LWOP, “except as
provided in Subsection . . . (4).” UTAH CODE § 76-5-302(3)(b) (2008).
Subsection (4) allows the court to impose a lesser indefinite term if
it finds that doing so would be “in the interests of justice.” Id. § 76-5-
302(4). We read subsections (3) and (4) together as requiring an
interests-of-justice analysis. First, the plain language of subsection
(3)(b) directs the court to impose a sentence of LWOP “except as
provided in Subsection . . . (4).” Id. § 76-5-302(3)(b). Here, the word
“except” is followed by a phrase that describes the particular
manner or circumstance—as provided in subsection (4)—in which
a sentence of LWOP is not applicable. As such, subsection (3)(b) is
best read as establishing a presumptive sentence of LWOP while
also delineating the particular circumstance in which LWOP would
be inappropriate. It follows that, in order to determine whether
LWOP would be inappropriate, a court must engage in the interests-
of-justice analysis laid out in subsection (4). If courts were free to
impose LWOP without first considering the interests of justice, the
exception provided by the Legislature would be rendered
meaningless. Thus, we read subsections (3)(b) and (4) together as
requiring that sentencing courts consider the interests of justice to
determine whether a lesser sentence is appropriate.
    ¶ 22 Reading Utah’s aggravated kidnapping statute as a whole
further supports this conclusion. The statute distinguishes three
types of aggravated kidnapping: (1) aggravated kidnapping,
(2) aggravated kidnapping resulting in serious bodily injury, and
(3) aggravated kidnapping committed by a defendant who has
previously been convicted of a “grievous sexual offense.” Id. § 76-5-
302(3). It then establishes different sentences for each. Id. For
example, a defendant convicted of aggravated kidnapping may be
sentenced to a sentence of fifteen years to life. Id. § 76-5-302(3)(a).
In contrast, defendants who have been previously convicted of a
grievous sexual offense or who cause substantial bodily injury in the
course of an aggravated kidnapping face a maximum sentence of
LWOP. Id. § 76-5-302(3)(b)–(c). This reflects the legislative judgment
that more serious offenses are deserving of harsher punishment.
    ¶ 23 Further bolstering our conclusion that the Legislature
intended to differentiate between different types of aggravated

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                        Opinion of the Court

kidnapping, the Legislature directed that the maximum sentences
for aggravated kidnapping and aggravated kidnapping resulting in
serious bodily injury should be imposed “except as provided in
Subsection . . . (4),” which triggers the interests-of-justice analysis.
See id. § 76-5-302(3)(a)–(b). But the Legislature specifically directed
that defendants who have been previously convicted of grievous
sexual offenses may not be sentenced to one of the lesser terms
contained in subsection (4). Id. § 76-5-302(5). Thus, a sentencing
court has no option but to impose a sentence of LWOP for these
offenders. In contrast, defendants who cause substantial bodily
injury are eligible for a lesser sentence if the sentencing court
determines that such a reduction is in the interests of justice. Thus,
the Legislature provided for the possibility of a reduced sentence for
defendants sentenced under either subsection (3)(a) or (3)(b), but not
for those sentenced under subsection (3)(c). This tri-level distinction
makes clear the Legislature’s judgment that not all aggravated
kidnappings are the same and evidences the Legislature’s intent to
punish more “serious” kidnappings with harsher sentences.
    ¶ 24 Were we to conclude that sentencing courts could impose
the statutory presumptive sentence under subsections (3)(a) and
(3)(b) without first considering the interests of justice, it would
undermine the distinctions between the different types of
aggravated kidnapping drawn by the Legislature. Though the
language of subsection (4) is permissive, the statutory scheme makes
clear that the Legislature did not intend to give sentencing courts a
license to ignore this subsection altogether. Rather, reading
subsections (3) and (4) together, we conclude that the Legislature
intended sentencing courts to consider the interests of justice when
sentencing defendants under subsections (3)(a) or (3)(b), but not
under subsection (3)(c).
III. THE DISTRICT COURT FAILED TO PROPERLY CONSIDER
 THE INTERESTS OF JUSTICE AS REQUIRED BY UTAH CODE
                   SECTION 76-5-302(4)
    ¶ 25 Having determined that the district court was required to
engage in an interests-of-justice analysis when sentencing Mr.
LeBeau, we turn our attention to what is required for such an
analysis. At sentencing, the court did consider whether a lesser
indeterminate sentence was appropriate for Mr. LeBeau. In doing
so, the court considered Mr. LeBeau’s crime in light of the list of
aggravating and mitigating circumstances compiled by the Utah
Sentencing Commission in its sentencing guidelines. Though the
district court did not articulate its reasoning on the record, it appears

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                        Opinion of the Court

that the court equated the weighing of these aggravating and
mitigating circumstances with an interests-of-justice analysis. Mr.
LeBeau argues that this was in error and that an interests-of-justice
analysis requires the court to consider factors other than the
aggravating and mitigating circumstances surrounding a particular
defendant and crime.4 We have yet to consider the import of the
Legislature’s use of the phrase “interests of justice” in this context.
Therefore, our task is to determine what the Legislature intended
when it instructed courts to consider whether the interests of justice
would be served by imposing a lesser sentence.
    ¶ 26 We begin, as always, with the statutory text. Marion
Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863. We
presume that the Legislature chose its words carefully, using each
term advisedly. State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682.
Absent some indication of contrary legislative intent, we give effect
to each term according to its ordinary meaning. Taylor ex rel. C.T. v.
Johnson, 1999 UT 35, ¶ 9, 997 P.2d 479. If the statutory language
remains ambiguous—meaning the statute is susceptible to two or
more reasonable interpretations—we may resort to other indications
of legislative intent, including legislative history and policy
considerations. State v. Watkins, 2013 UT 28, ¶ 24, 309 P.3d 209.
    ¶ 27 The Legislature did not provide a statutory definition of
“in the interests of justice.” Accordingly, we look to other sources
to derive the meaning of the phrase. See State v. Bagnes, 2014 UT 4,
¶ 14, 322 P.3d 719 (approving the use of dictionaries to ascertain the
“range of possible meanings that a statutory term may bear”
(internal quotation mark omitted)). Generally, the phrase “in the
interests of” connotes being “to the advantage or advancement of”
something. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
993 (2d ed. 1987); see also WEBSTER’S NEW COLLEGE DICTIONARY 744
(2007) (defining “in the interests of” as “for the sake of”). So,
something “in the interests of justice” will act to advance or promote
justice. But “justice” is an abstract notion that incorporates a variety



   4
     Mr. LeBeau argues that an interests-of-justice analysis requires
courts to consider the totality of the circumstances. Though we
agree that the Legislature’s use of the phrase “interests of justice”
requires consideration of factors beyond the aggravating and
mitigating circumstances of the crime, we conclude that the statute
requires a more focused analysis than Mr. LeBeau’s proposed
totality-of-the-circumstances test.

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                           STATE v. LEBEAU
                         Opinion of the Court

of meanings. As used in this context, “justice” imparts notions of
impartiality or fairness, including the receipt of a “reward or penalty
as deserved.” WEBSTER’S NEW COLLEGE DICTIONARY 777. A sentence
“in the interests of justice” will therefore work to promote
impartiality or fairness and ensure the defendant receives the
penalty he deserves.          While these definitions inform our
understanding of the Legislature’s intent, they do not adequately
direct courts as to what they should actually consider when
confronted with a particular case. Accordingly, we must look for
further guidance.
    ¶ 28 The phrase “in the interests of justice” appears in many
other parts of the Utah Code, but is never specifically defined. See,
e.g., UTAH CODE § 75-7-204(2)(b) (2013) (allowing Utah courts to
entertain proceedings involving foreign trusts if “the interests of
justice would be seriously impaired” by dismissal); id. § 78B-1-136
(establishing a witness’s right “to be detained only so long as the
interests of justice require”); id. § 77-8a-1(2)(d) (directing Utah courts
to jointly try co-defendants unless the court finds that separate trials
would be in “the interests of justice”); UTAH R. EVID. 807(a)(4)
(allowing courts to admit otherwise inadmissible hearsay statements
if doing so is in “the interests of justice”); UTAH R. APP. P. 5(f)
(directing that an appeal from an interlocutory order should only be
granted if in the “interests of justice”). What quickly becomes clear
is that the Legislature cannot have meant to use the phrase “in the
interests of justice” in the same manner in all these different
contexts.
    ¶ 29 The Legislature added the interests-of-justice language to
Utah’s aggravated kidnapping statute in 2007 as part of a sweeping
revision of the penalties associated with sexual offenses and
kidnapping. See 2007 Utah Laws 2060–73. The Legislature crafted
a sentencing scheme substantially similar to that found in the
aggravated kidnapping statute in at least eight other criminal
statutes. See UTAH CODE §§ 76-4-102 (attempt), -204 (criminal
solicitation); id. §§ 76-5-301.1 (child kidnapping), -402 (rape), -402.1
(rape of a child), -402.2 (object rape), -404 (forcible sexual abuse),
-405 (aggravated sexual assault). Each of these statutes, except
solicitation and attempt, governs crimes involving kidnapping and
sexual assault. And in each case, the Legislature created a
presumptive sentence and instructed sentencing courts to consider
whether the interests of justice warranted a lesser sentence. Our
task, then, is to determine what the phrase means in the context of



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                        Opinion of the Court

the sentencing scheme crafted by the Legislature in these related
statutes.
A. Section 76-5-302(4)’s Interests-of-Justice Analysis Is not Equivalent
     to Weighing the Aggravating and Mitigating Circumstances
   ¶ 30 As an initial matter, we conclude that the Legislature did
not intend the phrase “interests of justice” as a mere substitute for
the weighing of aggravating and mitigating circumstances
recognized by the Sentencing Commission.5 First, the plain language
of the statute does not support such an interpretation. The
Legislature instructed courts to consider the “interests of justice,”
not just to weigh the “aggravating and mitigating circumstances.”
Though the two concepts are related, they are not equivalent.
    ¶ 31 The Utah Sentencing Commission is empowered to create
sentencing guidelines designed to “increase equity in criminal
sentencing.” UTAH CODE § 63M-7-404(3). To that end, the
Sentencing Commission creates sentencing guidelines that include
a nonexhaustive list of aggravating and mitigating circumstances
that are used by courts in their sentencing decisions. See UTAH
ADULT SENTENCING AND RELEASE GUIDELINES 13 (2009). The
sentencing guidelines instruct courts to consider all of the
aggravating and mitigating circumstances of a particular crime
holistically when sentencing offenders. Id. at 12. Had the
Legislature intended courts to consider only the aggravating and
mitigating circumstances recognized by the Sentencing Commission
when sentencing defendants under Utah’s aggravated kidnapping
statute, it had the means and knowledge to so instruct. Instead, the
Legislature directed courts to consider “the interests of justice.”
    ¶ 32 More tellingly, prior to 2007, section 76-3-201(7)(e) of the
Utah Code did instruct the courts to “consider sentencing guidelines
regarding aggravating and mitigating circumstances promulgated
by the Sentencing Commission” when “determining a just sentence.”
Defendants convicted of aggravated kidnapping were sentenced to
an indefinite term of six, ten, or fifteen years to life. UTAH CODE
§ 76-5-302(3) (2006). The court was required to impose the middle-
severity term of ten years to life, “unless there [were] circumstances


   5
     As discussed below, the aggravating and mitigating circum-
stances relating to a particular crime are certainly relevant to the
court’s interests-of-justice analysis. Infra ¶¶ 42, 46. But aggravating
and mitigating circumstances are simply one facet of the proper
analysis.

                                  13
                            STATE v. LEBEAU
                          Opinion of the Court

in aggravation or mitigation of the crime.” Id. § 76-3-201(7)(a).
Section 76-3-201(7)(e) then directed the court to consider the
aggravating and mitigating circumstances recognized by the Utah
Sentencing Commission. However, this sentencing scheme was
removed from the Utah Code in the same revision that created the
interests-of-justice sentencing scheme in the related kidnapping and
sexual assault statutes.6 Compare 2007 Utah Laws 2064, with id. at
2069. In light of the Legislature’s decision in 2007 to remove
references to the Sentencing Commission’s list of aggravating and
mitigating factors, we do not read section 76-5-302(4)’s interests-of-
justice language as equivalent to the previous aggravating-and-
mitigating-circumstances language.
    ¶ 33 In Mr. LeBeau’s case, the district court looked to the list of
aggravating and mitigating circumstances contained in the
sentencing guidelines and no further. Because the Legislature
replaced its previous aggravating-and-mitigating-circumstances
instruction with the new mandate to consider the interests of justice,
we conclude that the district court’s analysis was in error. We now
turn our attention to what a proper interests-of-justice analysis
requires.
       B. An Interests-of-Justice Analysis Requires Consideration of
        Proportionality and the Defendant’s Rehabilitative Potential
    ¶ 34 Though the Legislature did not specifically define
“interests of justice” in the aggravated kidnapping statute, it has
provided guidance elsewhere in the Utah Code. Section 76-1-106 of
the Utah Code directs that Utah’s criminal code “shall be construed
according to the fair import of [its] terms to promote justice and to
effect the objects of the law and general purposes of [s]ection 76-1-
104.” (Emphasis added). Section 76-1-104 sets forth four general
goals of Utah’s criminal code:
        (1) Forbid and prevent the commission of offenses.
        (2) Define adequately the conduct and mental state
        which constitutes each offense and safeguard conduct
        that is without fault from condemnation as criminal.


   6
     Utah’s capital sentencing scheme continues to direct that juries
must consider the “totality of the aggravating and mitigating
circumstances” when deciding whether to impose the death penalty.
UTAH CODE § 76-3-207(5)(b). Section 76-3-207(4) presents a
nonexhaustive list of factors that may be considered.

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                         Opinion of the Court

       (3) Prescribe penalties which are proportionate to the
       seriousness of offenses and which permit recognition [of]
       differences in rehabilitation possibilities among individual
       offenders.
       (4) Prevent arbitrary or oppressive treatment of
       persons accused or convicted of offenses.
(Emphasis added.)
    ¶ 35 The goals enumerated in section 76-1-104 relate to different
aspects of the criminal code. For example, subsection (2) relates to
the public definition of offenses. This necessarily incorporates ideas
of fair notice and due process because a just criminal code must
adequately inform those subject to it of the behaviors that will
expose them to criminal liability. Subsection (4) addresses the
treatment of individuals once they are brought into the criminal
justice system and recognizes the importance of fair treatment of
those individuals.
   ¶ 36 But it is subsection (3) that relates most closely to
sentencing. Subsection (3) articulates the legislative goal that
sentencing be proportionate to the seriousness of the defendant’s
conduct and recognizes that individual offenders have different
potential for rehabilitation. Thus, reading sections 76-1-104 and 76-
1-106 together, we must construe our criminal code in ways that
“promote justice,” including principles of proportionality and a
recognition of the rehabilitative potential of individual defendants.
    ¶ 37 Keeping these basic principles in mind, we conclude that
the Legislature’s use of the phrase “interests of justice” necessarily
requires the court to consider the proportionality of the defendant’s
sentence in relation to the severity of his offense. Additionally, it
requires that sentencing judges appropriately weigh a defendant’s
potential for rehabilitation.
1. A Proportionality Analysis Requires the Court to Consider the
Seriousness of the Defendant’s Conduct When Compared to the
Severity of His Sentence and the Sentences Imposed for Different
Offenses
    ¶ 38 “The principle that a punishment should be proportionate
to the crime is deeply rooted and frequently repeated in common-
law jurisprudence.” Solem v. Helm, 463 U.S. 277, 284 (1983). For
example, the United States Supreme Court has long recognized the
existence of a proportionality principle in its jurisprudence related
to the Eighth Amendment’s Cruel and Unusual Punishments Clause.

                                   15
                           STATE v. LEBEAU
                        Opinion of the Court

U.S. CONST. amend. VIII, see, e.g., Weems v. United States, 217 U.S. 349
(1910) (recognizing that the Eighth Amendment prohibits grossly
disproportionate sentences). Though the Court has struggled to
effectively articulate the precise contours of the Eighth
Amendment’s proportionality principle, see, e.g., Harmelin v.
Michigan, 501 U.S. 957 (1991), it has articulated a set of guiding
principles that can assist in our analysis.
    ¶ 39 It is important to note, first, that the Supreme Court’s
proportionality jurisprudence arose in a very different context than
that with which we are now confronted. Typically, the Court was
confronted with a challenge to the constitutionality of a legislatively
enacted sentencing statute. See, e.g., Weems, 217 U.S. at 359; Rummel
v. Estelle, 445 U.S. 263, 265 (1980) (upholding a mandatory life
sentence with the possibility of parole under a recidivist statute for
a defendant’s third nonviolent felony); Graham v. Florida, 560 U.S. 48,
75 (2010) (rejecting a sentence of LWOP for juveniles convicted of
nonhomicide crimes). As it has addressed these constitutional
challenges, the Court has struggled to balance deference to
legislative judgment as to the appropriate sentence for a particular
crime with the long-standing precept that sentences “should be
graduated and proportioned to [the] offense.” Weems, 217 U.S. at
367; see also Harmelin, 501 U.S. at 998–1001 (attempting to reconcile
the need for judicial deference to legislatively enacted sentences and
the need for proportionality). But the case before us presents a very
different question. We are not being asked to overturn a sentence
imposed by the Legislature on the grounds that it is constitutionally
disproportionate. Instead, our task is to ensure that courts properly
comply with the Legislature’s instruction to undertake a
proportionality analysis when sentencing defendants pursuant to
section 76-5-302 of the Utah Code. Accordingly, while we take
guidance from the Supreme Court’s proportionality jurisprudence,
we do so with the understanding that our analysis is necessarily
different.
    ¶ 40 In Solem, the Supreme Court considered the
constitutionality of a South Dakota recidivism statute that imposed
a sentence of LWOP on a defendant who had written a “no account”
check for $100, a class 5 felony under South Dakota law. 463 U.S. at
280–81 & n.5. Because the defendant had previously been convicted
of six other nonviolent felonies, his sentence was enhanced to that of
a class 1 felony, LWOP. Id. at 281. The defendant brought a
proportionality challenge under the Eighth Amendment, arguing



                                  16
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                        Opinion of the Court

that LWOP was grossly disproportionate to his crime of passing a
$100 bad check. Id. at 283.
    ¶ 41 The Court enumerated three objective factors designed to
guide its proportionality analysis: (1) the seriousness of the
defendant’s conduct in relation to the severity of the sentence
imposed, (2) the severity of the sentence imposed in light of
sentences imposed for other crimes in the same jurisdiction, and
(3) the severity of the sentence imposed in relation to sentences
imposed for the commission of the same crime in other jurisdictions.
Id. at 290–92. In State v. Gardner, this court considered a
constitutional challenge to a sentence of death for a defendant
convicted of aggravated assault while in prison. 947 P.2d 630 (Utah
1997). In a thorough discussion of Utah’s Cruel and Unusual
Punishment Clause, Justice Durham articulated a test for
proportionality that is substantially similar to that which was
established in Solem. Id. at 639–40 (Durham, J., plurality opinion).
We find this reasoning persuasive and adopt the first two of these
factors for the purpose of section 76-5-302(4)’s interests-of-justice
analysis. But in the context before us, we see no indication that the
Legislature intended sentencing courts to consider the sentences
imposed by the legislatures of other jurisdictions. Accordingly, we
conclude that the third Solem factor is inappropriate for an interests-
of-justice analysis under section 76-5-302 of the Utah Code.
   a. The seriousness of the defendant’s conduct in relation to the
   severity of his sentence
    ¶ 42 First, sentencing courts should consider “the gravity of the
offense and the harshness of the penalty.” Solem, 463 U.S. at 290–91.
This factor necessarily includes an examination of the nature and
circumstances of the defendant’s crime. Though we decline to
articulate an exhaustive list of circumstances a court should
consider, we note that the list of aggravating and mitigating
circumstances created by the Utah Sentencing Commission provides
a good starting point. Many of the Sentencing Commission’s
guidelines already take into account factors relevant to the gravity
of the defendant’s conduct. However, we emphasize that courts
should not limit their inquiry merely to those factors recognized by
the Sentencing Commission. Rather, courts should consider all
relevant facts raised by the parties about the defendant’s crime in
relation to the harshness of the penalty.
    ¶ 43 In general, nonviolent crimes should be viewed as less
serious than violent crimes. Id. at 292-93. The Legislature made a


                                  17
                          STATE v. LEBEAU
                        Opinion of the Court

similar determination when it mandated enhanced penalties for
repeat violent offenders. See UTAH CODE § 76-3-203.5. Similarly, a
violent offense committed in the presence of a child constitutes an
aggravating factor during sentencing. Id. § 76-3-203.9. The
considered judgment of the Legislature indicates that such violent
offenses are to be considered as more serious than nonviolent ones.
     ¶ 44 The court may also consider the “absolute magnitude of
the crime.” Solem, 463 U.S. at 293. A crime that results in the loss of
more valuable property may be more serious than stealing a few
hundred dollars worth of retail goods. For example, in Utah, theft
is usually a class B misdemeanor if the value of the property stolen
is less than $500. UTAH CODE § 76-6-412(1)(d). In contrast, theft of
property valued above $5,000 is a second degree felony, reflecting
the Legislature’s judgment that theft involving more valuable
property is a more serious offense. See id. § 76-6-412(1)(a).
     ¶ 45 Another important consideration is the culpability of the
offender. We generally agree with the notion that negligent conduct
is less serious than intentional conduct. Solem, 463 U.S. at 293; see
also UTAH CODE § 76-2-101(1) (establishing that a defendant must act
with at least criminal negligence to be guilty of an offense).
Moreover, a defendant’s motivation for committing his crime is
highly relevant. For example, a homicide committed for monetary
gain should generally be viewed as more serious than manslaughter
that results from a defendant’s reckless actions. Compare UTAH CODE
§ 76-5-202(1)(g) (establishing a homicide committed for pecuniary
gain as aggravated murder), with id. § 76-5-205 (defining
manslaughter). See also id. § 76-3-203.3(2)(a) (establishing increased
penalties for hate crimes committed “with the intent to intimidate or
terrorize another person”).
    ¶ 46 We emphasize that a court’s consideration of this first
factor should be guided by its objective assessment of the nature and
circumstances of the defendant’s crime in relation to the harshness
of the penalty. The above discussion is not intended to provide an
exhaustive list of factors because sentencing remains a highly fact-
dependent endeavor. And the Sentencing Commission’s list of
aggravating and mitigating circumstances remain relevant for this
factor. On remand, the sentencing court should consider the
seriousness of Mr. LeBeau’s conduct in light of the severe nature of
a sentence of LWOP when determining whether the interests of
justice warrant the imposition of one of subsection (4)’s lesser
sentences.


                                  18
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                         Opinion of the Court

   b. Sentences imposed for other crimes in Utah
    ¶ 47 Second, sentencing courts should compare the sentence
being imposed to the sentences imposed for other crimes in Utah.
A key proposition underlying the proportionality principle is
fairness. Defendants who commit more serious offenses should be
punished more severely than those who commit less serious crimes.
As part of a proportionality analysis, courts should consider the
sentences imposed for more and less serious crimes in order to
ensure that a particular defendant’s sentence is not arbitrary.
     ¶ 48 For example, in Utah, a person who commits intentional
murder is guilty of a first degree felony punishable by an
indeterminate sentence of fifteen years to life in prison. UTAH CODE
§ 76-5-203(3). In order for a defendant who commits a murder to be
eligible for a sentence of LWOP, he must be convicted of aggravated
murder as defined by section 76-5-202 of the Utah Code. Id. § 76-3-
207.7. Aggravated murder requires that the defendant commit the
crime under circumstances that would justify such a severe sentence.
Id. § 76-5-202(1). For example, a murder accompanied by the sexual
abuse of a child or committed by the use of a weapon of mass
destruction would qualify for aggravated murder. Id. § 76-5-
202(1)(n)(ii), (2)(a). But absent the aggravating factors found in
section 76-5-202, a defendant who commits first degree murder can
expect a maximum sentence of life with the possibility of parole.
     ¶ 49 Other crimes for which the Legislature has established
LWOP as a possible sentence include a variety of sexual offenses, but
only if the defendant is a repeat offender. For example, aggravated
sexual assault, rape, and sodomy each carry a penalty of LWOP if
the defendant was previously convicted of a grievous sexual offense.
Id. §§ 76-5-405(2), -402(3)(c), -403(4)(c). In the case of a child victim,
the Legislature allows a sentence of LWOP for first-time offenders
if the defendant causes serious bodily injury. Id. §§ 76-5-404.1(5)(b),
-402.1(2)(b)(i), -403.1(2)(b)(i). When the Legislature established this
sentencing scheme for sexual offenses, it signaled its judgment that
sexual crimes, which intrude on the fundamental bodily integrity of
the victim like no others short of murder, are serious enough to
warrant a sentence of LWOP.
    ¶ 50 In contrast, Mr. LeBeau was sentenced to LWOP for an
aggravated kidnapping in which no one was killed and which was
unaccompanied by the type of bodily and dignitary harm associated
with sexual assaults. We agree that murder is generally a more
serious crime than aggravated kidnapping. And sexual crimes,


                                   19
                          STATE v. LEBEAU
                        Opinion of the Court

particularly those involving children, represent an especially
heinous form of bodily insult. Of course, the Legislature is
empowered to mandate a sentence of LWOP for aggravated
kidnapping. Gardner, 947 P.2d at 639 (plurality opinion) (“What
constitutes an adequate penalty is a matter of legislative judgment
and discretion . . . .” (internal quotation marks omitted)). But proper
deference to the Legislature in this case includes deference to the
entire sentencing scheme, including the Legislature’s instruction that
courts should consider the interests of justice.             Thus, the
proportionality principle incorporated into the Legislature’s
interests-of-justice requirement demands consideration of the
penalties established by the Legislature for other crimes. On
remand, the sentencing court should look to the sentences prescribed
by our Legislature for other crimes to gain insight into whether the
interests of justice favor a lesser sentence for Mr. LeBeau.
    ¶ 51 Having provided some guidance as to the proper
proportionality analysis for the court on remand, we turn our
attention to the second interests-of-justice factor in the Utah Code,
the defendant’s capacity for rehabilitation.
2. Proper Consideration of the Interests of Justice Includes Deference
to the Role of the Board of Pardons and Parole
    ¶ 52 As noted above, one of the goals of the Utah Criminal Code
is to promote justice through the imposition of penalties “which
permit recognition [of] differences in rehabilitation possibilities
among individual offenders.” UTAH CODE § 76-1-104(3). The Board
of Pardons and Parole (Board) has the power to “grant parole . . . as
provided by statute.” UTAH CONST. art. VII, § 12(2)(a). We have
previously recognized the important role the Board plays in Utah’s
indeterminate sentencing scheme. State v. Smith, 909 P.2d 236, 244
(Utah 1995); Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 907
(Utah 1993). In Smith, we rejected the district court’s imposition of
four consecutive sentences totaling a minimum mandatory sentence
of sixty years. 909 P.2d at 244-45. Section 76-3-401(2) of the Utah
Code directs district courts to consider the “rehabilitative needs of
the defendant” when determining whether to impose consecutive or
concurrent sentences. We held that the court’s imposition of four
consecutive sentences was an abuse of discretion, in part because the
“Board is in a far better position than a court to monitor a
defendant’s subsequent behavior and possible progress toward
rehabilitation while in prison and to adjust the maximum sentence
accordingly.” Id. at 244.


                                  20
                         Cite as: 2014 UT 39
                        Opinion of the Court

    ¶ 53 An important part of our reasoning in Smith centered on
the Legislature’s decision to grant the Board broad authority to
determine what a particular defendant’s maximum sentence should
be. Id. The court of appeals concluded that the Legislature’s
decision to make LWOP the presumptive sentence for aggravated
kidnapping “essentially countermanded, for this crime, Utah’s long-
standing sentencing philosophy of indeterminate sentencing.” State
v. Lebeau, 2012 UT App 235, ¶ 36, 286 P.3d 1. Were LWOP the only
sentencing option for Mr. LeBeau, we might agree. But the
Legislature instructed courts to consider the interests of justice when
imposing a sentence under the aggravated kidnapping statute,
expressly acknowledging that an indeterminate sentence is
appropriate in some cases. And as we have already noted, the
interests-of-justice analysis requires consideration of the defendant’s
potential for rehabilitation.
    ¶ 54 Sentencing courts must consider all of the factors relevant
to a defendant’s rehabilitative potential. We have previously
indicated that a defendant’s age at the time of the commission of the
crime is relevant. State v. Strunk, 846 P.2d 1297, 1300-02 (Utah 1993).
Other relevant factors include the extent to which a defendant’s
crime was tied to alcohol or drug addiction and the defendant’s
prospects for treatment. The extent to which a defendant’s criminal
history evidences continual violence is also relevant to his
rehabilitative potential. Finally, the Sentencing Commission’s
guidelines, several of which relate to a defendant’s capacity for
rehabilitation, may prove helpful to sentencing courts in their
analysis. We emphasize, however, that sentencing courts should
consider all relevant factors when evaluating the defendant’s
rehabilitative potential.
    ¶ 55 In sum, sentencing courts should consider the
proportionality of a sentence to the seriousness of the defendant’s
conduct and the defendant’s potential for rehabilitation when
determining whether the interests of justice support a lesser
sentence. The sentencing court in this case failed to properly
consider the interests of justice when sentencing Mr. LeBeau. We
therefore reverse and remand for a new sentencing. Because the
sentencing court on remand will be required to consider the
aggravating and mitigating circumstances as part of its interests-of-
justice analysis, and because Mr. LeBeau argued that the sentencing
court previously erred in evaluating several of his proposed
mitigating factors, we take this opportunity to provide guidance to
the sentencing court on remand.

                                  21
                          STATE v. LEBEAU
                        Opinion of the Court

 IV. THE DISTRICT COURT IMPROPERLY EVALUATED MR.
       LEBEAU’S PROPOSED MITIGATING FACTORS
     ¶ 56 Mr. LeBeau argues that the district court erroneously
rejected several of his proposed mitigating factors, including (1) his
claim that he acted under strong provocation, (2) his relatively minor
criminal history, (3) his employment history, and (4) his family ties.
Because the district court will be required to assess these factors in
its interests-of-justice analysis on remand, we take this opportunity
to provide guidance as to the appropriate legal standards.
  A. The District Court Applied the Incorrect Legal Standard when It
    Rejected Mr. LeBeau’s Claim that He Acted Under Provocation
    ¶ 57 At sentencing, Mr. LeBeau argued that he acted under
provocation the night he kidnaped Stephanie because he was upset
at the thought that she was having an affair with another man. The
district court rejected this claimed mitigating circumstance, stating,
“There was no evidence presented that [Stephanie] was having an
affair. There was no evidence that she was involved in a sexual
relationship. You came to that conclusion, but I found no basis for
that.” Mr. LeBeau argues that he was not required to prove that
Stephanie was actually engaged in a sexual relationship with Mark.
Rather, it was enough that Mr. LeBeau believed Stephanie was
having an affair and reacted in the heat of the moment because of
that belief.
    ¶ 58 We agree with Mr. LeBeau that the district court applied
the incorrect legal standard in its analysis of this mitigating factor.
Though we have never expressly addressed the question in this
context, we recently reiterated the proper legal standard to be
applied in the context of the affirmative defense of extreme
emotional disturbance. See Ross v. State, 2012 UT 93, ¶¶ 27–33, 293
P.3d 345. In Ross, we held that “the fact finder must determine
whether (1) subjectively, the defendant committed the [crime] while
under the influence of extreme emotional distress, and (2)
objectively, a reasonable person would have experienced an extreme
emotional reaction and loss of self-control under the circumstances.”
Id. ¶ 28. By analogy, determining whether Mr. LeBeau acted under
strong provocation the night he kidnaped Stephanie requires the
court to undertake a similar analysis, taking into account both Mr.
LeBeau’s subjective experience and the objective reasonableness of
that experience.
    ¶ 59 In this case, the district court rejected Mr. LeBeau’s claim
of provocation on the basis that Mr. LeBeau had not established that

                                  22
                        Cite as: 2014 UT 39
                       Opinion of the Court

Stephanie was, in fact, having an affair. This had the effect of
requiring Mr. LeBeau to overcome a much greater hurdle than our
precedent requires. Mr. LeBeau was not required to demonstrate
that Stephanie and Mark were actually having an affair, only that
Mr. LeBeau reasonably believed they were. But the district court
wholly disregarded Mr. LeBeau’s subjective experience in its
analysis. There is evidence in the record that Mr. LeBeau’s actions
on the night in question were driven by his genuine belief that
Stephanie was having an affair with Mark. Shortly before the fateful
night, Stephanie had moved out of the couple’s shared bedroom.
Stephanie testified that she spent the evening of February 23, 2009,
with Mark and that Mr. LeBeau was upset when she returned home.
Stephanie had refused to answer her cell phone while she was with
Mark and Mr. LeBeau repeatedly asked Stephanie where she had
been and with whom. After Stephanie told Mr. LeBeau that she had
been with Mark, the situation escalated. Stephanie testified that Mr.
LeBeau accused her of breaking his heart before forcing her into the
car and driving toward Mark’s house.
    ¶ 60 Stephanie’s testimony paints the picture of a man acting,
at least in part, out of jealousy and corroborates Mr. LeBeau’s claim
that he reacted emotionally on the night in question. Though this
does not excuse Mr. LeBeau’s deplorable actions, his subjective
emotional state was relevant to the mitigating factor of provocation.
On remand, the sentencing court should examine Mr. LeBeau’s
actions in light of the proper legal standard to determine whether
Mr. LeBeau acted under provocation the night he kidnaped
Stephanie.
       B. The District Court Improperly Weighed Mr. LeBeau’s
                          Criminal History
    ¶ 61 Mr. LeBeau argues that the district court improperly
rejected his relatively minor criminal history as a mitigating factor.
We agree. Mr. LeBeau’s criminal history includes a single conviction
from 1989 for first degree robbery, when Mr. LeBeau was a juvenile,
and a conviction for possession of marijuana in 1993. The
presentence report also showed that Mr. LeBeau had been arrest free
since 2001.
    ¶ 62 At sentencing, the district court rejected Mr. LeBeau’s
criminal history as a mitigating factor because Mr. LeBeau had an
outstanding warrant for his arrest in Alabama and was living under
an assumed name at the time he kidnaped Stephanie. The court also
noted Mr. LeBeau’s admitted drug use as a reason to find Mr.


                                 23
                           STATE v. LEBEAU
                        Opinion of the Court

LeBeau’s criminal history nonmitigating. Though Mr. LeBeau’s
history indicates that he was no angel, neither was he the type of
hardened criminal we normally associate with a sentence of LWOP.
    ¶ 63 Because the Legislature established a separate sentencing
scheme for aggravated kidnapping, we agree with the district court
judge that the sentencing guidelines established by the Utah
Sentencing Commission are not strictly applicable to Mr. LeBeau’s
case. However, the sentencing guidelines were not rendered totally
irrelevant. In particular, the criminal history matrices still inform the
inquiry into the seriousness of the defendant’s criminal history. The
Sentencing Commission is charged with developing sentencing
guidelines designed to “increase equity in criminal sentencing.”
UTAH CODE § 63M-7-404(3) (2013). We do not conclude that the
Legislature intended for sentencing courts to completely ignore the
wisdom of the Sentencing Commission guidelines when it
established the sentencing scheme for section 76-5-302 of the Utah
Code, particularly in light of the Legislature’s instruction to consider
the interests of justice.
    ¶ 64 As Mr. LeBeau notes, his criminal history scores relatively
low on the general offender matrix.7 His score corresponds to a
recommended sentence of eight years for a first degree felony
involving injury to a person. According to the matrix, an offender
with Mr. LeBeau’s criminal history score would receive a
recommended sentence of twenty years for first degree murder.
Though the sentencing matrices do not carry the same weight in
light of the sentencing scheme set out by the Legislature in the
aggravated kidnapping statute, they still provide insight into the
relative seriousness of a defendant’s criminal history and provide an
important check against arbitrary sentencing. Thus, the district
court erred in completely disregarding the sentencing matrices when
considering whether Mr. LeBeau’s criminal history was a mitigating
factor. On remand, the sentencing court should consider the
seriousness of Mr. LeBeau’s criminal history, in light of the



   7
     The presentence investigator also scored Mr. LeBeau’s criminal
history on the sex offender matrix. It is unclear why this matrix was
used because Mr. LeBeau was not convicted of a sex offense and
there were no sexual overtones to the kidnapping he committed.
Nevertheless, that matrix recommends that a defendant with Mr.
LeBeau’s criminal history be sentenced to fifteen years to life, with
a recommended sentence of twenty-one years.

                                   24
                         Cite as: 2014 UT 39
                        Opinion of the Court

Sentencing Commission’s guidelines, in order to determine whether
it is considered a mitigating factor.
      C. The District Court Improperly Discounted Mr. LeBeau’s
                        Employment History
    ¶ 65 Mr. LeBeau argues that the district court failed to properly
credit his employment history as a mitigating factor. The court
refused to consider Mr. LeBeau’s employment history as a
mitigating factor because Mr. LeBeau was unemployed at the time
he committed his crime. However, the presentence report makes
clear that Mr. LeBeau was employed as a painter by the same
employer from May 2005, until he was laid off in December 2008,
only two months prior to his arrest. Though a defendant’s
employment status at the time of his crime is certainly a relevant
factor, it is not solely determinative. In light of the severe economic
recession that gripped the country in 2008, which was particularly
devastating in the construction sector, the fact that Mr. LeBeau was
laid off and had yet to find new employment within a two-month
period cannot fairly be held against him. The district court erred
when it relied solely on the fact that Mr. LeBeau was unemployed at
the time he committed his crime. On remand, the court should
consider the reasons for Mr. LeBeau’s unemployment and the
totality of his employment history when determining whether his
employment history should be considered a mitigating factor.
     D. The District Court Improperly Discounted Mr. LeBeau’s
                          Family Support
    ¶ 66 The district court refused to consider Mr. LeBeau’s family
support structure as a mitigating factor because Mr. LeBeau “hadn’t
seen [his] mother or [his] sister for years at the time they came to
testify at trial.” Again, while a defendant’s physical contact with his
family is relevant, it cannot be determinative. Mr. LeBeau’s family
all resides out of state. In large part due to the expense of travel,
prolonged physical separation of family members is a reality for
many today. But with technological innovations, families can
remain in close contact, even when physically separated. For
example, Mr. LeBeau’s mother told the presentence investigator that
she and Mr. LeBeau talked on the phone monthly during the time he
was in Utah. Again, the district court’s focus on only one aspect of
a potential mitigating factor was in error. On remand, the
sentencing court should consider the full extent of Mr. LeBeau’s
family support and whether that can be considered a mitigating
factor.


                                  25
                           STATE v. LEBEAU
                       JUSTICE LEE, dissenting

                           CONCLUSION
    ¶ 67 The court of appeals erred in affirming the district court’s
imposition of a sentence of LWOP under section 76-5-302 of the Utah
Code. The district court erred when it considered only those
aggravating and mitigating circumstances recognized by the
Sentencing Commission instead of broadly considering the interests
of justice as required by subsection 76-5-302(4). Though the district
court is given broad discretion in sentencing decisions, that
discretion must be exercised in light of the proper legal standards.
Because the district court abused its discretion when sentencing Mr.
LeBeau, we vacate Mr. LeBeau’s sentence of LWOP and remand for
further sentencing proceedings consistent with this opinion.

   JUSTICE LEE, dissenting:
    ¶ 68 Utah law has long committed a range of sentencing
decisions to the sound discretion of the trial judge. The statute at
issue here, Utah Code section 76-5-302(3), appears to me to fall
squarely within this discretionary sentencing regime. It does so by
leaving the question of whether to impose a sentence of life without
parole for aggravated kidnapping to the trial judge’s assessment of
the “interests of justice.”
    ¶ 69 The majority turns that discretionary standard on its head.
Instead of deferring to the historically broad discretion conferred on
trial judges, the court interprets the “interests of justice” standard to
require a sentencing judge to carefully consider specific factors that
the court deems relevant to an assessment of the “proportionality”
of a sentence and to the defendant’s “potential for rehabilitation.”
Supra ¶ 55. I respectfully dissent. I find no basis in the statute for
imposing this rigid framework—imported from constitutional
jurisprudence in a case in which no constitutional challenge has been
asserted—on a judge exercising discretion under section 76-5-302(3).
I would interpret the statute to preserve the broad discretion long
conferred on trial judges on matters of discretionary sentencing. And
I would affirm the imposition of the sentence of life without parole
in this case, under the highly deferential “abuse of discretion”
standard of review.

                                     I
   ¶ 70 In Utah as elsewhere, our law has long recognized a wide
berth of discretion for judges exercising the important duty of



                                   26
                           Cite as: 2014 UT –
                        JUSTICE LEE, dissenting

imposing a criminal sentence.1 Such discretion is not without limits.
But so long as the judge imposes a sentence within the range of
punishments established by law, and based on an inquiry into the
nature of the offense and of the offender, the law has long upheld
the judge’s prerogative of determining the appropriate sentence.2


   1
     See State v. McGee, 2001 UT 69, ¶ 6, 31 P.3d 531 (“[D]istrict courts
have wide latitude and discretion in sentencing”); State v. Woodland,
945 P.2d 665, 671 (Utah 1997) (“We traditionally afford the trial court
wide latitude and discretion in sentencing.”); State v. Gerrard, 584
P.2d 885, 886 (Utah 1978) (noting that “sentencing procedures,
including the use of an evaluation, are clearly discretionary with the
trial court,” and explaining that “the exercise of discretion in
sentencing necessarily reflects the personal judgment of the court”).
   2
      See, e.g., State v. Sanwick, 713 P.2d 707, 708 (Utah 1986) (“Except
for . . . constitutional restraints, the trial court has broad discretion
in imposing sentence within the statutory scope. [The court] must be
permitted to consider any and all information that reasonably may
bear on the proper sentence for the particular defendant, given the
crime committed.” (internal quotation marks omitted)); Gerrard, 584
P.2d at 887 (sentence imposed by trial judge will not be reversed
unless it is beyond the “proper statutory penalty for the offense” or
unless it can be said that “no reasonable man would take the view
adopted by the trial court”). See also Dorszynski v. United States, 418
U.S. 424, 431 (1974) (“[O]nce it is determined that a sentence is
within the limitations set forth in the statute under which it is
imposed, appellate review is at an end.”); United States v. Tucker, 404
U.S. 443, 446–47 (1972) (acknowledging the trial judge’s “wide
discretion in determining what sentence to impose,” including by
“conduct[ing] an inquiry broad in scope, largely unlimited . . . as to
the kind of information he may consider”; explaining that “a
sentence imposed by a federal district judge, if within statutory
limits, is generally not subject to review”); United States v. Colon, 884
F.2d 1550, 1552 (2d Cir. 1989) (“Prior to passage of the Sentencing
Reform Act, appellate review of sentences was unavailable unless
they exceeded statutory limits, resulted from material misinforma-
tion or were based upon constitutionally impermissible consider-
ations.”); United States v. Dazzo, 672 F.2d 284, 289 (2d Cir. 1982)
(“When the sentence imposed is within statutory limits, it is
generally not subject to review unless the trial court relied on either
material misinformation concerning the defendant or constitution-
                                                            (continued...)

                                   27
                           STATE v. LEBEAU
                       JUSTICE LEE, dissenting


    ¶ 71 With a few limited exceptions, the law has also long
deferred to the trial judge’s discretion in identifying the range of
offense-based and offender-based considerations relevant to the
ultimate decision as to where to fix the sentence within a statutory
range.3 For the most part, we have left it up to individual judges to

   2
    (...continued)
ally impermissible factors.”); Carissa Byrne Hessick & F. Andrew
Hessick, Recognizing Constitutional Rights at Sentencing, 99 CAL. L.
REV. 47, 52 (2011) (noting that under discretionary sentencing
regimes, the judge “conduct[s] a separate sentencing proceeding at
which he . . . impose[s] a sentence within [a] statutory range based
on his assessment of ‘sentencing’ characteristics,” which encompass
“any number of factors” relevant to the offense, such as “harm to the
victim or the defendant’s motive,” and “facts about the offender
himself”); Note, More Than A Formality: The Case for Meaningful
Substantive Reasonableness Review, 127 HARV. L. REV. 951, 952 (2014)
(noting that prior to the era of sentencing guidelines reform, “judges
enjoyed vast discretion to sentence defendants within a statutory
range,” and “sentencing appeals were allowed only under narrow
circumstances” and were “unreviewable” “[a]s a practical matter”);
Susan R. Klein, The Return of Federal Judicial Discretion in Criminal
Sentencing, 39 VAL. U. L. REV. 693, 693 (2005) (establishing that under
the traditional discretionary sentencing regime, sentencing judges
“ma[k]e all of the moral, philosophical, medical, penological, and
policy choices surrounding what particular sentence to impose upon
a particular offender,” making the sentencing judge the “master of
his courtroom”).
   3
     See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (recog-
nizing that “judges in this country have long exercised
discretion . . . in imposing sentence within statutory limits in the
individual case”); Williams v. New York, 337 U.S. 241, 246 (1949)
(noting that “before and since the American colonies became a
nation, courts in this country and in England practiced a policy
under which a sentencing judge could exercise a wide discretion in
the sources and types of evidence used to assist him in determining
the kind and extent of punishment to be imposed within limits fixed
by law”); Klein, supra note 2, at 697 (explaining that prior to
sentencing guidelines reform, judges had “enormous and essentially
unbridled authority to impose a sentence anywhere within the
                                                          (continued...)

                                  28
                          Cite as: 2014 UT –
                        JUSTICE LEE, dissenting

make a personal assessment of the factors he deems relevant to the
ultimate imposition of a sentence. And we have rooted that
approach in the trust we place in the trial judge, who has first-hand
interaction with the defendant and thus “the main responsibility for
sentencing.”4
    ¶ 72 Our Utah system of “indeterminate” sentencing
circumscribes the trial judge’s discretion to some degree. It does so
by generally prescribing indeterminate sentencing ranges for various
categories of offenses, with the ultimate amount of time served being
decided not by the sentencing judge at the outset but by the parole
board in subsequent hearings.5 Under this system of indeterminate
sentencing, for example, a second-degree felony is generally subject
to a sentence of a prison term of one to fifteen years. UTAH CODE
§ 76-3-203(2). So a trial judge sentencing a defendant convicted on
such a charge would not impose a specific sentence within the
statutory range of one to fifteen years; he would simply impose a
sentence of one to fifteen years, and the defendant’s actual time
served would be determined by a subsequent decision of the parole
board.




   3
    (...continued)
legislatively prescribed range,” and “possessed full discretion to
consider any information about the offender and offense that they
thought relevant and helpful in determining the appropriate
sentence”).
   4
     See Gerrard, 584 P.2d at 887 (1978) (explaining that the trial court
“has the main responsibility for sentencing” and “attempts to arrive
at a proper sentence based on the facts and law before it”).
   5
      See Padilla v. Bd. of Pardons & Parole, 947 P.2d 664, 669 (Utah
1997) (explaining that the court sets “an indeterminate sentence as
provided by statute” which continues until the maximum amount
of time elapses unless the parole board “terminates or commutes the
punishment or pardons the offender”); UTAH ADULT SENTENCING
AND RELEASE GUIDELINES 1 (2013) (“An offender sentenced to prison
is legally subject to the full length of the sentence pronounced by the
sentencing judge. Ultimately, the final decision regarding the actual
length of incarceration is the responsibility of the Board of Pardons
and Parole: that decision may, or may not reflect the guideline
recommendation, and may be up to the full length of the indetermi-
nate range pronounced by the sentencing judge.”).

                                   29
                         STATE v. LEBEAU
                      JUSTICE LEE, dissenting

    ¶ 73 But that does not mean that our judges do not exercise
discretion. First, not all sentencing decisions are subject to the
indeterminate sentencing regime, as this case illustrates. See UTAH
CODE § 76-5-302(3) (leaving it to the judge to decide whether to
impose a sentence of life without the possibility of parole for the
crime of aggravated kidnapping). Second, even as to offenses that
are subject to indeterminate sentences, the judge still is faced with
discretionary judgments—e.g., whether to place a defendant on
probation and/or suspend a prison sentence, whether to order that
sentences on multiple offenses be served concurrently or
consecutively, and whether to enter a conviction for a lower category
of offense under Utah Code section 76-3-402. See UTAH CODE § 76-3-
402(1) (authorizing sentencing court to enter a “judgment of
conviction for the next lower degree of offense” upon determination
that it would be “unduly harsh” to enter conviction at charged
level); id. § 76-3-402(2) (authorizing court to “enter a judgment of
conviction for the next lower degree of offense” if it “suspends the
execution of the sentence and places the defendant on probation”
and determines that it is in the “interests of justice” and the
defendant is successfully discharged from probation and meets other
conditions).
    ¶ 74 The process for exercising this discretion is regulated by
statute and by rule. Under Utah Code section 77-18-1(7), “[a]t the
time of sentence, the court shall receive any testimony, evidence, or
information the defendant or the prosecuting attorney desires to
present concerning the appropriate sentence.” (Emphasis added.)
This provision also requires that such “testimony, evidence, or
information shall be presented in open court on record and in the
presence of the defendant.” Id. Rule of Criminal Procedure 22 is to
the same general effect. It provides that “[b]efore imposing sentence
the court shall afford the defendant an opportunity to make a
statement and to present any information in mitigation of
punishment, or to show any legal cause why sentence should not be
imposed,” and also that “[t]he prosecuting attorney shall also be
given an opportunity to present any information material to the
imposition of sentence.” UTAH R. CRIM. P. 22(a) (emphasis added).
    ¶ 75 The point of these provisions is straightforward: Both the
defense and the prosecution have the opportunity to make a
presentation as to any considerations or information they deem
relevant to sentencing; and the judge then exercises his broad
discretion to impose a sentence based on the considerations he



                                 30
                          Cite as: 2014 UT –
                       JUSTICE LEE, dissenting

deems most salient.6 Appellate review of the sentencing judge’s
decision, moreover, is limited. A sentence imposed in accordance
with the prescribed procedure is reviewed under an “abuse of
discretion” standard of review.7 And a judge may be deemed to have
abused his discretion only if the appellate court determines (a) that
he based his decision on considerations or information not properly
presented,8 or (b) that no reasonable judge would have entered such




   6
      State v. Sweat, 722 P.2d 746, 746 (Utah 1986) (“[S]o long as basic
constitutional safeguards of due process and procedural fairness are
afforded, the trial court has broad discretion in considering any and
all information that reasonably may bear on the proper sentence.”
(internal quotation marks omitted)). See also Klein, supra note 2, at
693 (noting that the judge in the traditional system of discretionary
sentencing “held a sentencing hearing if he wanted one, . . . heard
whatever evidence he felt relevant, and . . . made all of the moral,
philosophical, medical, penological, and policy choices surrounding
what particular sentence to impose upon a particular offender”).
   7
      State v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17(“[W]e review a
trial court's decision to deny probation under an abuse of discretion
standard and will overturn a sentencing decision only if it is clear
that the actions of the [trial] judge were so inherently unfair as to
constitute an abuse of discretion.” (internal quotation marks
omitted)); Gerrard, 584 P.2d at 887–88 (Utah 1978) (“Before this Court
will overturn the sentence given by the trial court, it must be clear
that the actions of the judge were so inherently unfair as to constitute
abuse of discretion.”).
   8
     See State v. Lipsky, 608 P.2d 1241, 1248 (Utah 1980) (information
in presentence report may not be considered in sentencing unless
provided to the defendant for the purpose of review and response;
holding that a “defendant’s right to be sentenced on the basis of
information that is accurate can be protected only if the pre-sentence
report is disclosed to him prior to sentencing”). See also Note, supra
note 2, at 952 & n.6 (noting that in traditional discretionary sentenc-
ing regimes, “judges enjoy vast discretion to sentence defendants
within a statutory range” and that “sentencing appeals [are] allowed
only under narrow circumstances,” as where they result from
“material misinformation” or are “based upon constitutionally
impermissible considerations” (quoting United States v. Colon, 884
F.2d 1550, 1552 (2d Cir. 1989))).

                                  31
                           STATE v. LEBEAU
                       JUSTICE LEE, dissenting

a sentence under the circumstances.9
    ¶ 76 We have applied these standards in upholding the exercise
of the discretion of a trial judge in making the decision whether to
suspend a sentence on condition of probation. See State v. Killpack,
2008 UT 49, ¶ 191 P.3d 17, 23 (Utah 2008) (affirming decision to
commit adoptive mother to prison instead of probation on
conviction of child abuse homicide).10 In affirming such sentencing
decisions, we have confirmed that the trial courts have wide
discretion, while explaining that the exercise of such discretion is not
to be overridden on appeal absent a showing of abuse. Baine, 347
P.2d at 556; Williams, 149 P.2d at 642.
    ¶ 77 The sentencing judge’s discretion as to the considerations
relevant to sentencing is not unlimited. But its limits are found in the
terms of the constitution. Thus, in State v. Lipsky, 608 P.2d 1241 (Utah
1980), we held that the information set forth in a presentence report
may not be considered in sentencing unless it is provided to the
defendant for the purpose of review and response. And we based
that decision on principles of notice and due process, explaining that
“fundamental fairness requires that procedures . . . in the sentencing
phase of a criminal proceeding be designed to insure that the
decision-making process is based on accurate information,” and
holding that a “defendant’s right to be sentenced on the basis of


   9
     Gerrard, 584 P.2d at 887 (Utah 1978) (explaining that “the
exercise of discretion in sentencing necessarily reflects the personal
judgment of the court and the appellate court can properly find
abuse only if it can be said that no reasonable man would take the
view adopted by the trial court”); State v. Galli, 967 P.2d 930, 939
(Utah 1998) (same); State v. Branch, 919 P.2d 1228, 1235 (Wash. 1996)
(en banc) (“The length of an exceptional sentence will not be
reversed as clearly excessive absent an abuse of discretion . . . . A
sentence is clearly excessive if it is based on untenable grounds or
untenable reasons, or an action no reasonable judge would have
taken.”); Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999) (explaining
that sentencing discretion is only abused when “no reasonable
person would agree with the trial court's decision”).
   10
      See also Baine v. Beckstead, 347 P.2d 554, 560 (Utah 1959)
(affirming sentencing judge’s decision not to suspend sentence and
impose probation); Williams v. Harris, 149 P.2d 640, 641–42 (Utah
1944) (affirming trial court’s decision to revoke an order suspending
sentence).

                                  32
                            Cite as: 2014 UT –
                         JUSTICE LEE, dissenting

information that is accurate can be protected only if the pre-sentence
report is disclosed to him prior to sentencing.” Id. at 1248.
    ¶ 78 We have also identified another limitation on sentencing
in cases where such discretion is exercised in a manner interfering
with the authority afforded to the Board of Pardons and Parole by
statute and by the Utah Constitution. See UTAH CONST., art. VII, § 12
(recognizing authority of board to “grant parole . . . in all cases
except treason and impeachments, subject to regulations as provided
by statute”); UTAH CODE § 76-3-401 (allowing multiple sentences to
be imposed consecutively if the judge considers, among other
factors, the “rehabilitative needs of the defendant”). Thus, in State v.
Strunk, 846 P.2d 1297 (Utah 1993), we reversed the imposition of
consecutive sentences of a minimum of fifteen years for child
kidnapping and nine years for aggravated sexual assault for a
defendant who was sixteen years old at the time of his offense. Id. at
1300–02. In so doing, we held that such a sentence improperly
deprived the parole board of the “flexibility” guaranteed it by
statute and the constitution. Id. at 1301–02. And, in State v. Smith, 909
P.2d 236 (Utah 1995), we reversed a decision imposing consecutive
sentences amounting to “a minimum mandatory life sentence”
because it would “deprive the Board of Pardons of discretion to take
into account defendant’s future conduct and possible progress
toward rehabilitation.” Id. at 245.
    ¶ 79 Courts in other jurisdictions have identified additional
factors that may not be considered at sentencing without
running afoul of the constitution11—factors such as race,12 national



   11
      See Klein, supra note 2, at 693 & n.4 (indicating that in the
traditional scheme of discretionary sentencing, there are “no
standards to assist or confine the judge in making his determina-
tion;” listing as limited exceptions the following: “(1) a sentence
imposed using constitutional criteria, such as race or political
viewpoint, Wayte v. United States, 470 U.S. 598 (1985); (2) a vindictive
sentence based upon a defendant’s assertion of his constitutional
right to appeal his conviction, North Carolina v. Pearce, 395 U.S. 711
(1969); and (3) a term of years or fine so excessive compared to the
crime that it offended the Eighth Amendment’s proportionality
requirement, Harmelin v. Michigan, 501 U.S. 957 (1991); United States
v. Bajakajian, 524 U.S. 321 (1998).”).
   12
        United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007).

                                    33
                             STATE v. LEBEAU
                         JUSTICE LEE, dissenting

origin,13 and gender.14 Except in these limited circumstances,
however, the law generally has left it to the sound discretion of the
trial judge to decide what offense-based or offender-based
considerations seemed most salient to the sentencing decision, and
to impose a sentence based on his discretionary judgment in light of
all of the considerations as he saw them.
   ¶ 80 The breadth of this sentencing discretion is not without
controversy. The flipside of broad discretion is the potential for
inconsistency. And that potential has generated a number of
responses to the traditional regime of discretionary sentencing
described above. One well-known response is the invocation of
“sentencing guideline” schemes aimed at replacing the individual
judge’s discretion with a formulaic sentencing system adopted
pursuant to sentencing reform initiatives.15 Such schemes have been


   13
      Id.; see also United States v. Borrero-Isaza, 887 F.2d 1349, 1355 (9th
Cir. 1989); United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986).
   14
        United States v. Maples, 501 F.2d 985, 985–86 (4th Cir. 1974).
   15
      See Klein, supra note 2, at 699 (“The indeterminate sentencing
model began to unravel in the early 1970s, in response to criticism
that the rehabilitation model was a failure and that indeterminate
sentencing resulted in unwarranted disparities for similarly situated
defendants based on such illegitimate considerations as geography,
race, gender, socio-economic status, and judicial philosophy. The
sentencing reform movement, utilizing guidelines drafted by a
legislature or commission to tightly cabin judicial discretion, was
thus born at the state and federal levels.” (footnotes omitted)); Note,
supra note 2, at 952–53 (explaining that “the sentencing reform
movement of the 1970s and 1980s . . . was animated by a desire to
eliminate the unwarranted disparities perceived to be caused by
sentencing judges’ unbridled discretion”). The majority’s reaction to
the discretion afforded by our legislature under Utah Code section
76-5-302(3) seems to me to be animated by concerns that parallel
those of the sentencing reform movement that gave rise to sentenc-
ing guidelines in federal law and in various states. Such concerns are
understandable. But if there is a problem, it is not in the statute at
issue here; it is in the overall scheme that we have long adopted. I
dissent from what I see as a piecemeal attempt at repeal or reform of
our discretionary system of sentencing. If we are to embrace reform,
we should do so comprehensively and carefully. And any such effort
                                                         (continued...)

                                    34
                          Cite as: 2014 UT –
                       JUSTICE LEE, dissenting

adopted at both the federal and state level.16 But although these
efforts have been lauded by commentators concerned about the
downsides of broad sentencing discretion, they have also met some
detractors.17 More significantly, the sentencing guidelines movement
has also run into constitutional resistance, culminating in a United
States Supreme Court decision striking down the “mandatory”
application of the federal guidelines on Sixth Amendment grounds.
United States v. Booker, 543 U.S. 220, 245 (2005).
   ¶ 81 Other responses to the traditional system of discretionary
sentencing have come in the form of constitutional challenges in the
courts. First was a challenge under the Eighth Amendment to the
imposition of the death penalty, based on the allegation that


   15
    (...continued)
should start in the legislature, not in this court.
   16
      See generally Mistretta v. United States, 488 U.S. 361 (1989)
(discussing federal sentencing guidelines and upholding them
against constitutional attack; concluding that guidelines do not
amount to an unconstitutional delegation of legislative power nor a
violation of the principle of separation of powers); Kevin R. Reitz,
Sentencing Reform in the United States: An Overview of the Colorado Law
Review Symposium, 64 U. COLO. L. REV. 645 (1993) (discussing
sentencing reform efforts in the states); Daniel J. Freed, Federal
Sentencing in the Wake of Guidelines: Unacceptable Limits on the
Discretion of Sentencers, 101 YALE L.J. 1681 (1992) (discussing
sentencing reform efforts under federal law).
   17
      See e.g., Freed, supra note 16, at 1690 (criticizing the United
States Sentencing commission and its guidelines as “more complex,
inflexible, and severe than those devised by any other jurisdiction”
(footnotes omitted)); id. at 1686–87 (noting that soon after their
enactment and implementation, the federal guidelines “provoked
dismay and evasion in the federal courts and the bar” due to “a
powerful sense that the guidelines dictate unjust sentences in too
many cases,” and that “[m]any judges [] conform[ed] to the guide-
lines with a deep sense of distress” due to their broad and rigid
requirements); KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING:
SENTENCING GUIDELINES IN THE FEDERAL COURTS (1998) (arguing that
the most profound deficiency of the federal sentencing guidelines is
that they are unexplained, and therefore lawless, and calling for a
return of sentencing discretion to federal judges without “bureau-
cratic” rules).

                                  35
                          STATE v. LEBEAU
                       JUSTICE LEE, dissenting

discretionary sentencing as applied to the imposition of the death
penalty led to arbitrary decision-making, perhaps leading to racial
imbalances in the imposition of this sentence. That challenge
culminated in the Supreme Court’s per curiam decision in Furman
v. Georgia, 408 U.S. 238 (1972), which resulted in a moratorium on the
death penalty for a period of time in which the states were given
time and some discretion to decide how to eliminate this
arbitrariness. And the Furman decision in turn led to the decision in
Gregg v. Georgia, in which the court lifted the moratorium after
upholding the constitutionality of a system in which Georgia and
other states fundamentally altered their traditional discretionary
sentencing system by (a) bifurcating their proceedings in a manner
separating the guilt and penalty phase, and (b) directing juries at
sentencing stage to exercise their discretion under instructions
limiting the death penalty to cases in which certain aggravating
circumstances are found to outweigh mitigating circumstances. Gregg
v. Georgia, 428 U.S. 153, 190–95 (1976).
    ¶ 82 The second main constitutional challenge to discretionary
sentencing came in Solem v. Helm, 463 U.S. 277 (1983). In Solem, the
Supreme Court struck down the imposition of a life sentence (under
a recidivism statute) for a conviction of passing a “no account” check
of $100. In so doing the court rejected the proposition that the Eighth
Amendment is limited to the proscription of the sorts of “cruel and
unusual punishments” decried as barbaric at the time of the
founding of the constitution, and embraced in addition a principle
of “proportionality.” Id. at 285, 288, 290. That principle, as the
majority notes, is one under which a court considering the
constitutionality of a sentence under an Eighth Amendment
challenge could assess the gravity of the offense at issue and the
harshness of the penalty, the sentences imposed on other criminals
in the same jurisdiction for similar offenses, and the sentences
imposed for imposition of the same crime in other jurisdictions. Id.
at 290–91.
   ¶ 83 The Solem standard, however, is not a generally applicable
limitation on sentencing discretion. It is a constitutional standard,
which is properly invoked only upon the assertion of an Eighth
Amendment challenge to a given sentence.18



   18
    In any event, the continuing viability of the Solem standard of
proportionality is an open question in cases not involving the death
                                                       (continued...)

                                  36
                          Cite as: 2014 UT –
                       JUSTICE LEE, dissenting

                                    II
    ¶ 84 This history provides the background necessary for our
interpretation of the sentencing discretion prescribed in Utah Code
section 76-5-302(3). The statute is part and parcel of a longstanding
system of discretionary sentencing. Section 76-5-302(3) seems to me
to preserve that discretion. It does so by directing the judge to
impose the sentence he deems consistent with his sense of the
“interests of justice.”



   18
      (...continued)
penalty. In Harmelin v. Michigan, 501 U.S. 957 (1991), the court
rejected an Eighth Amendment challenge to the imposition of a
sentence of life without parole for possession of cocaine, holding that
“mandatory penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in various forms
throughout our Nation’s history.” Id. at 994. And on the applicability
of the Solem proportionality standard, the court was deeply splint-
ered; it ventured no majority view. See id. at 979–85 (opinion of
Scalia, J., joined by Rehnquist, C.J., concluding that Solem should be
overruled and articulating an originalist view of the Eighth Amend-
ment under which an “unusual punishment” is understood as a
particular mode of punishment that was infrequently imposed, not
one that was excessively lengthy in comparison to other punish-
ments imposed for similar crimes); id. at 996–1005 (opinion of
Kennedy, J., joined by O’Connor, J., and Souter, J., expressing
disagreement with aspects of the Solem test—particularly the “intra-
and interjurisdictional” comparison of sentences for comparable
crimes—while expressing support for a “narrow proportionality
principle”); id. at 1009–27 (opinion of White, J., joined by Blackmun,
J., and Stevens, J., expressing support for the Solem standard and
concluding that Harmelin’s sentence was unconstitutional; asserting
that the “narrow” proportionality principle favored by Justice
Kennedy effectively “eviscerates” Solem, leaving only an “empty
shell” in its place). Thus, after Harmelin, the general applicability of
the Solem standard of proportionality is a matter of grave doubt,
particularly in cases not involving the death penalty. See Richard S.
Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth
Amendment: Proportionality Relative to What?, 89 MINN. L. REV. 571,
581–84, 588–89 (2005) (discussing the ongoing debate regarding the
effect of Harmelin and subsequent cases on constitutional proportion-
ality analysis).

                                  37
                           STATE v. LEBEAU
                        JUSTICE LEE, dissenting

    ¶ 85 The hazy terms of the statute seem to me to emphasize the
breadth of the judge’s discretion in sentencing. As used in our
sentencing scheme and elsewhere, this phrase appears to be little
more than a reinforcement of the court’s broad discretion to impose
a sentence that it deems appropriate in light of the relevant
circumstances as perceived by the judge.
    ¶ 86 Most often, the notion of “interests of justice” is used to
impart discretion for a judge to depart downward from a
presumptive statutory sentence for a particular crime.19 The
implication, without more, is simply to reinforce the broad range of
a judge’s discretion. And the phrase’s general use in other wide-
ranging provisions of the code seems to reinforce this notion of
broad discretion.20
    ¶ 87 I find no room in the statutory authority to impose a
sentence “in the interests of justice” for the complex, detailed
sentencing standards prescribed by the majority. Granted, the
legislature does not always use “the phrase . . . in the same manner
in all the[] different contexts” in which it appears in our code. Supra
¶ 28. But to me that only reinforces the understanding of this phrase
as a general placeholder for a principle of broad judicial
discretion—discretion that may be exercised in different ways in
different contexts, but that is broad and not easily subject to reversal
on appeal.
    ¶ 88 I agree that the current version of section 76-5-302(3) is not
the equivalent of the now-repealed instruction to courts to impose
a sentence for aggravated kidnapping based on a consideration of
aggravating and mitigating circumstances identified by the Utah
Sentencing Commission. See supra ¶ 32 (citing UTAH CODE § 76-5-302


   19
      See UTAH CODE § 76-4-204(2) (conferring discretion on sentenc-
ing judge to impose lesser sentence for crimes of solicitation if the
court finds that a lesser term is “in the interests of justice” and states
the reasons for this finding on the record); id. § 76-5-301.1 (providing
for downward departure in the “interests of justice” in child
kidnapping cases); id. § 76-5-402(4) (rape); id. § 76-4-102(2) (murder);
id. § 76-4-102(3) (); id. § 76-3-203.2(5) (use of dangerous weapon in
offenses committed on or about school premises).
   20
     See UTAH CODE § 78B-1-136 (establishing witness’s right “to be
detained only so long as the interests of justice require”); id. § 77-8a-
1(2)(d) (requiring joint trial of co-defendants unless separate trials
would be “in the interests of justice”).

                                   38
                           Cite as: 2014 UT –
                        JUSTICE LEE, dissenting

(2007)). But I would not draw that inference from the mere fact of
amendment of the old scheme—much less from the fact that the
legislature “had the means and knowledge” to require consideration
of aggravating and mitigating circumstances if it intended to do so.
Supra ¶¶ 31–32. After all, the mere fact of a legislative amendment
tells us little or nothing about the reason for amendment—which
could either be an intent to abandon the old scheme in favor of a
different one, or simply a desire to reword the statute in equivalent
or synonymous terms.21 And the legislature’s capacity to speak more
clearly—here as almost always—tells us absolutely nothing. It’s true,
of course, that the legislature could have clearly reinforced the
mitigating and aggravating factors imposed under prior legislation;
but it also could have spoken more clearly the other way, expressly
repudiating those terms. So the failure to speak more clearly gets us
nowhere in the face of an ambiguity like this one.22
   ¶ 89 The majority presumes that any rejection of the old
mitigation-aggravation construct must have been a preference for
something even more restrictive. Thus, after announcing its
conclusion that the statute is not “equivalent to the previous
aggravating-and-mitigating circumstances language,” the court
assumes that the existing statutory standard must necessarily be
more restrictive than the one it replaced. Supra ¶ 32. And it then
proceeds to develop such a standard from the general “goals” stated

   21
      See Rahofy v. Steadman, 2012 UT 70, ¶ 12 n.12, 289 P.3d 534
(identifying “stylistic changes” in legislative amendments that had
“no substantive effect on our analysis”); Gressman v. State, 2013 UT
63, ¶ 63, 323 P.3d 998 (Lee, J., dissenting) (“[T]he key question . . . is
whether the change under review is in fact material. Some legislative
amendments are not. Some are aimed only at clarification, or at
stylistic or semantic refinement.”).
   22
     See In re Estate of Hannifin, 2013 UT 46, ¶¶ 25–26, 311 P.3d 1016
(explaining that on “any matter of statutory construction of any
consequence, it will almost always be true” that the legislature could
have spoken more clearly, while indicating that such “failure to
speak more clearly” tells us nothing of consequence to our interpre-
tation of the language that it used); In re Adoption of Baby E.Z., 2011
UT 38, ¶ 75, 266 P.3d 702 (Lee, J., concurring) (“[O]ne can almost
always imagine clarifying amendments cutting both ways . . . . It
adds nothing analytically to hypothesize how Congress might have
spoken with greater clarity. We instead must simply ask what
Congress did say and interpret it as best we can.”).

                                   39
                           STATE v. LEBEAU
                       JUSTICE LEE, dissenting

in our criminal code and from Eighth Amendment caselaw on
proportionality in sentencing (under Solem v. Helm).
    ¶ 90 I find no basis for such a standard in section 76-5-302(3).
Black’s Law Dictionary defines “justice” as “[t]he fair and proper
administration of laws.” BLACK’S LAW DICTIONARY 942 (9th ed. 2009).
Thus, the statutory direction to the court to impose the sentence it
deems to be in the “interests of justice” is a straightforward
reiteration of the judge’s duty to decide what seems most “fair and
proper.” That cannot properly be construed to require the court to
follow the rigid, detailed framework of aggravating and mitigating
circumstances.
    ¶ 91 Instead, the terminology of the statute is a straightforward
reiteration of the longstanding principle of broad sentencing
discretion. Our opinion in State v. Russell, 791 P.2d 188 (1990),
hammers this point home. There we rejected the notion that
discretion in sentencing is a matter that may be “surrendered to a
mathematical formula,” and reiterated instead the wide-ranging
discretion afforded to the sentencing judge. Id. at 192. And our
articulation of the essence of that discretion is telling. We stated that
the “overriding consideration” for a judge imposing a sentence “is
that the sentence be just.” Id. (Emphasis added.)23
    ¶ 92 I would accordingly read the terms of the governing
statute as a straightforward reiteration of the longstanding discretion
afforded to the sentencing judge. And I would not deem those terms


   23
      Sentencing law in other jurisdictions confirms the understand-
ing of consideration of the interests of “justice” as a reference to
broad sentencing discretion. See United States v. Steiner, 239 F.2d 660,
662 (7th Cir. 1957) (noting the longstanding principle of “judicial
discretion” in sentencing, while explaining that it encompasses the
judge’s prerogative of imposing a sentence “upon such terms and
conditions as the court deems best,” or in other words terms
consistent with “the ends of justice and the best interest of the public
as well as the defendant”(emphasis added) (citation omitted)));
United States v. Danilow Pastry Co., Inc., 563 F. Supp. 1159, 1166
(S.D.N.Y. 1983) (noting that in “1925[,] when the first federal
probation statute was enacted, every state had such a statute to give
judges discretion to suspend overly harsh sentences in the interests of
justice,” and speaking of the need for the law to “devise flexible
sentences” and to engage in “creative” sentencing “in the interests
of justice” (emphasis added)).

                                   40
                          Cite as: 2014 UT –
                       JUSTICE LEE, dissenting

to be overridden by the “general purposes” articulated in the
preambular provisions of the criminal code. Supra ¶ 34. None of
these purposes identify, much less attempt to define, the meaning of
“interests of justice” in sentencing or even in our criminal law.
    ¶ 93 As the majority notes, section 76-1-106 does make a general
reference to “justice” (though not “interests of justice”). Supra ¶ 34.
But even that term is used only to prescribe a rather fuzzy canon of
construction of the code—to direct the courts to construe it
“according to the fair import of [its] terms to promote justice and to
effect the objects of the law and general purposes of [s]ection 76-1-
104.” Supra ¶ 34. This general canon seems to me to have little or
nothing to do with the question presented here—of the meaning of
“interests of justice” in a sentencing statute.
    ¶ 94 The majority cites this provision as a basis for importing an
analysis of the principles of proportionality and rehabilitation, since
the third of the four general purposes identified in section 104
encompasses the prescription of “penalties which are proportionate
to the seriousness of offenses and which permit recognition of
differences in rehabilitation possibilities among individual
offenders.” UTAH CODE § 76-1-104. In light of this general reference
to these principles, the court reads the “interests of justice”
consideration in section 76-5-302(3) to require an individualized
assessment of proportionality and rehabilitative potential in each
case prior to the imposition of a sentence under this statute.
    ¶ 95 I cannot agree with this approach. The general purposes
cited by the majority are purposes of the criminal code—not of trial
judges exercising discretion in sentencing. Thus, the general
purposes invoked by the court have no apparent connection to our
interpretation of the “interests of justice” consideration in sentencing
under section 76-5-302(3). That phrase, again, is a reinforcement of
the judge’s broad sentencing discretion. And the longstanding
tradition of such discretion runs clearly contrary to the detailed
review for proportionality and rehabilitative potential prescribed by
the court.
     ¶ 96 The court’s standard turns the above-recounted history on
its head. Traditionally, the principal limits on the judge’s discretion
in sentencing have been constitutional in nature. Thus, except where
limited by the Eighth Amendment, principles of due process, or
otherwise, our law has long left it up to the judge to determine the
considerations that seem most salient to him and to impose an
appropriate sentence in light of those considerations. The court’s


                                  41
                           STATE v. LEBEAU
                       JUSTICE LEE, dissenting

decision today inverts this inquiry. In a regime governed by highly
discretionary standards, and in a case in which the defendant has not
asserted a constitutional challenge to his sentence, the court
nonetheless reverses the sentence and remands for an evaluation of
considerations (of proportionality and rehabilitative potential)
heretofore arising only in case of a constitutional challenge to a
sentence.24
   ¶ 97 This will surely come as a shock to the district judge in this
case, who could not possibly have imagined being reversed for not
engaging an Eighth Amendment analysis of proportionality in a case
where no one had ever invoked the Eighth Amendment. And I
suppose it will even come as a shock to counsel for LeBeau, who are
being granted broad license to challenge the presumptive sentence
endorsed by the legislature on grounds they never advanced in the
proceedings below and thus have not preserved.

                                   III
    ¶ 98 For the above reasons, I would interpret the terms of
section 76-5-302(3) to preserve the traditional, broad sentencing
discretion long afforded to trial judges in Utah. Thus, I would note
that before imposing a sentence in this case, the district judge was
required by statute to “receive any testimony, evidence, or
information the defendant or the prosecuting attorney desires to
present concerning the appropriate sentence.” UTAH CODE § 77-18-
1(7). But beyond that, and except as foreclosed by the limitations of
the Utah and United States Constitution, I would hold that the
sentencing decision under section 76-5-302(3) was committed to the
broad discretion of the judge to identify the considerations that he


   24
     The majority’s approach has no logical stopping point. If it is
taken seriously and extended to its logical limits, today’s decision
may eventually be understood to require proportionality review of
every sentence imposed in the courts of the State of Utah, since the
“interests of justice” are at least presumptively relevant to all
sentencing decisions. And even if the court’s approach is limited to
sentences imposed under statutes expressly calling for consideration
of the “interests of justice,” the impact of today’s decision still will
be sweeping, as that phrase is employed in a wide range of statutes
cited above. Supra ¶ 20, notes 19 & 20. That sweeping extension
would be troubling, as it would represent a broad judicial overhaul
of the discretionary sentencing regime that our law has long
adopted.

                                  42
                          Cite as: 2014 UT –
                       JUSTICE LEE, dissenting

deemed appropriate in imposing a sentence that he deemed
consonant with the “interests of justice.” And I would affirm on that
basis, as I see nothing in this record to suggest that he abused his
sound discretion in imposing the sentence he selected.
    ¶ 99 I can understand a degree of discomfort with the sentence
imposed on LeBeau. From what I can tell on the face of the cold
record before us on this appeal, I suspect I may not have imposed
the sentence that was handed down in this case. But sentences in
Utah are not imposed on the basis of cold records. They are imposed
by trial judges, who are informed by a wealth of understanding and
firsthand experience that appellate judges lack. That is why our law
affords those judges such broad discretion, and why we limit our
review on appeal for the rare abuse of discretion.
    ¶ 100 I can also appreciate a degree of discomfort with the
discretionary sentencing scheme that we have adopted in Utah. As
I noted above, and as proponents of sentencing reform have been
advocating for decades, the downside of discretion is the potential
for arbitrariness.25 And that potential is certainly troubling. My point
is not to express a preference for a more regimented, guidelines-
based approach to sentencing, or even disapproval of our existing
regime. The tradeoffs between case-by-case discretion and
guidelines-based sentencing formulas pose intractable dilemmas for
policymakers, and my understanding of the matter is far too limited
to feel confident in advocating for one over the other. Thus, my point
is more narrow. It is simply that despite the limitations of our
current regime, it is not our prerogative to remake it by judicial fiat.
I dissent from a decision that strikes me as a baseless move in that
direction.




   25
      See Paul H. Robinson & Barbara A. Spellman, Sentencing
Decisions: Matching the Decisionmaker to the Decision Nature, 105
COLUM. L. REV. 1124, 1136 (2005) (“[B]oth judges and juries are
properly excluded as decisionmakers because of the disparity
problem: To rely on either is to allow offenders brought before
different decisionmakers to be subject to different punishment
rules.”).

                                  43
