Special Mitigation is Not an Affirmative Defense

Utah v. Eryk Drej 2010 UT 35, (Utah Supreme Court, May 14, 2010).

Special Mitigation is an additional method of mitigating criminal culpability based on a defendant’s mental illness.  Special mitigation allows a reduction of criminal liability by one degree if the defendant can show the factors of special mitigation.  Drej took an interlocutory appeal to challenge the constitutionality of the trial court’s finding that the statute places the burden of proving special mitigation on the defendant.  Further, Drej alleges that the passing of the statute violated the separation of powers doctrine.

The Supreme Court affirmed the trial court and found that special mitigation is not an affirmative defense because special mitigation does not negate an element of the crime.  Thus, the prosecution is not required to disprove it.  Further, the statute does not violate separation of powers doctrine because special mitigation is a substantive right, not an adjustment to procedural rules.  The Court finally finds that the statute does not violate equal protection because the classification created is narrow and that there is a distinction between special mitigation and imperfect self-defense defendants, so that the respective defendants are not similarly situated.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Drej051410.pdf