Imagine you had committed a crime that could send you to prison for several years, and the cops had found out, but you can rest easy because in your back pocket you have a letter from the State’s Attorney General saying that even though he knows about it, he is not going to prosecute you, because he hasn’t got anything else on you. How should you feel?

Relieved you no longer face the threat of jail?

Worried, in case something else you’ve done ends up with you facing two sentences instead of one?

Puzzled, that the State says something is a crime, but doesn’t enforce it?

Angry, that the State seems to be using the law to paint you as a criminal, when you are never likely to be convicted of a crime?

All of the above?

That’s the emotional quandary faced by Kody Brown and his family now that Utah Attorney General Mark Shurtleff has attempted to strike out Brown’s legal bid to decriminalize polygamy. The A.G.’s argument goes something like this:

OK, polygamy may be unconstitutional in the US, but we’ll never get to know that because the Attorney General wasn’t going to prosecute you until we had something else to get you for at the same time, and as you’re not currently under threat, you don’t have sufficient standing for the court to proceed with your case.

The A.G. even quotes the US Tenth Circuit Court of Appeals’ 2006 judgment in Winsness v. Yocom, that

The mere presence on the statute books of an unconstitutional statute, in the absence of enforcement or the credible threat of enforcement, does not entitle any to sue, even if they allege an inhibiting effect on constitutionally protected conduct prohibited by the statute.

However this also means that, if the court agrees with him, his policy of not prosecuting nice polygamists will result in polygamy never getting to an appeal court with a “clean” defendant, but only with someone who has at least been tried, and probably convicted, for some other offence. Someone for whom the public and appeal court are unlikely to feel much sympathy.

As these will be the only convictions for polygamy, it reinforces the stereotype that polygamy is linked to domestic violence, child abuse, welfare fraud, etc., etc. It also means that polygamists get to face trial for these other things tainted with the evidence of their ‘criminal’ activity as a polygamist. Not much ‘equal protection’ there.

It seems like Utah is in a similar position to British Columbia a few years ago – preferring the limbo of polygamy being an unenforced crime, to the risk of a court finding the law unconstitutional.

But is it really that simple? The Lehi police launched an investigation of the Browns – which probably felt like a bit of a threat at the time, and the County attorney has had the file since October 2010 without coming to a decision on whether to prosecute Kody and the Sister Wives. He doesn’t have the A.G.’s official policy of only prosecuting polygamy when there is another crime, although he is at pains to point out that it just hasn’t happened in fifty years. Maybe he doesn’t want to be the prosecutor who gave the green light to all the polygamists that his county was the one to move to, but at the same time doesn’t want to prosecute the case that results in the polygamy law being overturned across the US, and splitting the Mormon church.

It will be up to the federal court to decide whether the Brown’s were sufficiently threatened to have “standing” and for the case to progress. But if they deny the Brown’s standing, that has to leave us all wondering if something is really illegal if you are not going to be prosecuted for it.

Samuel Chapman