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How plea deals are uniquely negotiated for sex offenders

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Dressed in an ill-fitting jumpsuit and with hands in chains, Nicholas Lewis stood on July 7 before Judge Darold McDade to be sentenced for his crimes.

In late May, Lewis, 25, pleaded guilty to multiple felony charges: two first-degree felonies of attempted aggravated sexual abuse of a child, one second-degree felony of enticing a minor by the internet, and one third-degree felony of dealing in materials harmful to a minor.

Needless to say, prison was expected.

“My office has been uniformly and adamantly focused on prison for Mr. Lewis from the date that I got this case,” said Doug Finch, Utah County deputy attorney, at Lewis’ sentencing.

But after hearing testimony from Finch, Lewis’ attorney John Allan, the victims in the case, and even a clinical psychologist, McDade elected for a different fate for Lewis.

“The first impression I have is to send you to prison as is,” McDade told Lewis. “But I also feel it’s time to give you a chance. Today is that chance.

“I’m going to stay and suspend the maximum penalties. But as you heard me say, I’m running them all consecutive, which means if you can’t get through this, that’s what you’re up against.”

With McDade suspending prison time, Lewis was sentenced to spend 100 more days in the Utah County Jail, with credit for time served and good behavior.

“I am grateful that I was arrested,” Lewis said at his sentencing with his voice quivering and tears streaming down his face. “For 14 years I prayed for help, but was so ashamed to ask for it. The help came from Officer (Jason) Randall, bringing this all to light so I could get the help I need.”

Lewis was released from jail on July 11, just four days after his sentencing. Should he re-offend or violate his four-year probation, he will likely spend up to life in prison.

Why is a man who graphically described sexual abuse to police allowed into society without prison incarceration? How does a judge justify that sentence? And how do prosecutors and attorneys craft such a plea deal that allows someone with first-degree felonies to avoid an initial prison term?

Lewis is just one of innumerable sex crime offenders who make their way through the courts and, at face value, are handed down questionable sentences.

But there’s more behind each sentence than what is easily accessible to the general public. Sex crimes are possibly the most individually treated cases, which means very unique and sometimes controversial plea deals and sentences.

Plea deal players: Defense attorneys

In sex crimes, there is no rhyme or reason to plea negotiations,” Allan said.

When Allan managed Lewis’ plea negotiations with Finch, the victims’ wishes came first, like with most sex offenses.

“It comes down to victims,” Allan said. “You get this huge fluctuation in what happens in sex cases. I’ve always told my clients that you can’t compare apples to apples because it’s never comparable. Every victim is different.”

Take a look at the victims in Lewis’ case. Both were underage when the abuse happened between 10 and 15 years ago. They are now adults. Neither of the girls went to police. The abuse didn’t come to light until Lewis was in custody after attempting to entice an undercover officer online. He thought the officer was a 13-year-old girl.

At his sentencing, both victims and even the victims’ mother pleaded with McDade not to send Lewis to prison. They wanted him to receive treatment — treatment that would not be readily available to Lewis if he were at the prison.

“Nicholas is a changed man. He has repented,” said one of the victims. “We all love him and forgive him.”

“We have no recompense or sadness for what’s happened,” said the victims’ mother. “I plead that you do not give him prison. I honestly believe his time was paid in jail.”

But to get Lewis away from prison and into therapy, Allan and Finch had to rewrite Lewis’ charges, a common practice in plea negotiations. With the word “attempted” accompanying his charges, a mandatory prison sentence was avoided, even though Lewis was still charged with first-degree felonies.

“That’s why he ended up accepting the deal that he did. He wanted an opportunity for the judge to hear his side of things, the evidence, and make an informed decision on whether or not he should go to prison,” Allan said.

At Lewis’ sentencing, Dr. Carlos Roby, a clinical psychologist who’s treated more than 20,000 patients, testified to Lewis’ ability to be treated mentally and the statistically low likelihood he had to re-offend.

“Our program was at 3 percent (for) the recidivism data on five years following treatment for any kind of felony arrest,” Roby said at Lewis’ sentencing. “It was less than one and a half percent for any kind of sexual felony. Treatment is actually very, very effective.”

Had Lewis been sentenced to prison, Roby said he would not get into therapy treatment for probably five years due to the lack of programs available at the prison.

“For the community and himself, he’s probably better off doing outpatient treatment, being monitored closely on probation, rather than going to prison,” he said.

Allan believes that for most criminal offenders, sex crime or otherwise, rehabilitation is preferred over incarceration.

“Counseling does far better at reducing recidivism than incarceration does,” he said.

Prosecutors

But not everyone shares Allan’s sentiment as vehemently. It should come as little surprise that the Utah County Attorney’s Office wanted Lewis behind bars.

“In this case, we were advocating very strongly for prison. The victims were not,” said Utah County Attorney Jeff Buhman.

Buhman said his office fought hard for prison time in Lewis’ case. But ultimately, the plea negotiations honored the victims’ wishes and McDade accepted the agreement.

“This isn’t unique to Utah,” Buhman said. “I’ve been doing this long enough to be shocked a lot of times at what victims want. We’ve had a number of cases where we’ve gone against the will of the victims because we thought what they were asking for was too lenient.”

And on the other side of that coin, there are many cases that don’t have strong enough evidence to prosecute for the crimes originally charged.

“In (another) case, the strength of the evidence changed and our risk at trial of an acquittal had gone up,” Buhman said. “So we came up with a plea agreement where we were able to still get him on probation and get some accountability for his actions. It’s not always what we initially wanted or even ultimately wanted, but we thought, with the way the evidence had changed, that was the best-case scenario.”

The assumption is that prosecutors intentionally charge defendants with more severe crimes in hopes of cases pleading out, saving taxpayer money at trial. Buhman fiercely rejected the notion, saying that practice is a violation of prosecutorial ethics.

“We don’t charge with the idea of plea bargaining to a low level. We charge what we think we can prove at trial,” Buhman said. “Ninety-plus percent of the cases do plea out. … But if we can’t prove it, there’s no reason to charge it.”

But do many prosecutors’ offices plea bargain as much as Buhman’s?

Buhman said a high rate of plea bargaining is common across the country, especially when it comes to low-risk, low-needs offenders, which according to the sentencing guidelines, applies to Lewis.

“We don’t have the staff, nor does the public defender’s office, nor does the court, nor does the police departments, to try every case that we charge. It would overwhelm the system,” he said. “We would have to increase our resources by three-, four-, five-fold.”

“Every place in the country, they plea bargain 90-plus percent of their cases. … Nobody has the resources to try every case.”

But according to Finch, Lewis bragged about past “sexual conquests” with underage girls to the undercover police officer. He described in graphic detail what he would do to the police officer, how he would sexually gratify the supposed 13-year-old girl. And he even said that he wanted to teach his infant daughter how to have sexual intercourse.

How is he considered a low-risk offender?

“There has been a change. The sentencing in Utah has changed dramatically in the past couple years, (because of the JRI),” Buhman said. “It is now in the realm of sexual offenses.”

Justice Reinvestment Initiative

The Justice Reinvestment Initiative, or JRI, is aimed at reducing recidivism and incarceration rates in favor of rehabilitation and treatment. It was passed in the 2015 legislative session and made significant changes to sentencing guidelines and treatment options.

“The philosophy of JRI is being able to both hold offenders accountable immediately and also reduce future crimes. That’s the balance,” said Ron Gordon, executive director at the Utah Commission on Criminal and Juvenile Justice.

But practically the only part of the criminal code that the JRI didn’t affect was sex crimes. Pre-JRI sentencing guidelines and post-JRI sentencing guidelines are virtually identical, meaning the JRI is not to blame for Lewis’ or any sex offender’s sentencing.

When Gordon heard that the JRI was being used as a scapegoat for sex crimes, he was shocked.

“The sex offense matrix is completely different from every other crime,” Gordon said. “It surprises me to hear that. The only impact would be a little bit tangential.”

Particular care was given to the sex offender matrix because of how unique these crimes are.

“One of the main reasons the commission decided not to make significant changes to the sex offenses is because many of the sex offenders come in at a low risk, yet the harm that has been caused to the victim is really significant,” Gordon said. “It’s a different kind of offense. It doesn’t lend itself to JRI as well as the others.”

Most sex offenders in court are first-time offenders, like Lewis, which naturally sets them at a low risk. But even before JRI, sex offenders typically fell in the low-risk category, which gives value to the plea deals that can be crafted between attorneys.

And more often than not, judges honor plea arrangements rather than give their own sentence.

“It’s definitely safe to say that in the majority of cases, the sentence is consistent with what the guidelines recommend,” Gordon said.

Judges and JPEC

“Mr. Lewis, you should know that throughout the 10 years I’ve been on the bench now, I’ve only seen a few (that) I believe (are) prime examples of what pornography can do to a good person,” McDade said in court. “Somebody who was raised well and lived life the way it was supposed to be lived. You got caught up in this stuff.”

All parties involved in Lewis’ case, including Lewis himself, cited a powerful addiction to pornography as a proponent of his behavior. In fact, Roby practically cited it as the main cause, stating that early exposure to child pornography twisted his reality and trained Lewis to think that behavior was OK.

“He got into pornography when he was younger. The vast majority of individuals I work with are seeking out pornography on adults,” he said.

Roby said Lewis’ primary attraction is with adult females, but a strong, secondary attraction to teenage girls exists. A mental response is elicited when he views child pornography.

But at the onset of a possible prison term, Roby said Lewis can overcome his addiction.

“I don’t have anybody who knocks on my door, gives me a call, and says, hey, I’m attracted to children, I need treatment,” he said. “They see that their behavior is disturbing and it’s something they want to deal with and successfully put behind them.”

McDade honored the option of treatment, but not without public outcry. A Change.org petition for McDade’s removal circulated the internet after Lewis’ sentencing.

“Judge McDade has put Utah children in danger by treating sexual violence lightly,” the petition reads.

And in the 2016 elections, McDade was barely recommended by the Utah Judicial Performance Evaluation Commission, only being recommended 7-5.

“Survey respondents express doubt about the depth of Judge McDade’s legal knowledge and his ability to properly adjudicate complex matters. They question the clarity and reasoning of his oral and written rulings,” his 2016 evaluation reads.

But Lewis’ sentence was a plea agreement, not an arbitrary number crafted by McDade.

“Judge McDade took a bashing for something that he shouldn’t have, in all honesty,” Allan said. “People just look at the incarceration period rather than all of the facts and why the sentence was given.”

Not an isolated incident

Lewis’ sentencing is hardly the first to draw public criticism or raise a few brows.

Karolyn Williams of Eagle Mountain, Paul Bryant of Lehi and Demetrio Siruno of Orem have all received sentences that many call bizarre or unfair to the system.

But when Buhman discussed these cases, each had its own series of hurdles that resulted in the sentences received. Some had issues with evidence. Others had issues with victim cooperation. And a few others had conflicts of whether consent could legally be given to the defendant.

“Plea bargaining is quite intricate,” Buhman said. “A lot of it boils down to the strength of evidence at trial. That can’t always be put in black and white terms. Going to trial is more of an art than a science.”

For Lewis, preference was obviously given to treatment. But for others, like Paul Von Strahl, who was sentenced to prison for sexually abusing a girl he coached in soccer, prison was deemed the only option after negotiations between all the parties involved in the case. When it comes to sex offenses, no two plea deals are alike.

“It’s not like we, as defense attorneys, are getting these awesome negotiations. That just doesn’t happen, period,” Allan said. “I think (prosecutors) do a more than adequate job in aggressively pursuing sex offenders.”

City Editor

Kurt is the city editor and oversees the Daily Herald's news content.

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