Utah legislator files bill to close a ‘loophole’ he says led to the release of one of Elizabeth Smart’s kidnappers

(Photo courtesy of Utah Department of Corrections) Wanda Barzee's photo on the state sex offender registry.

A “loophole” in Utah law allowed Wanda Barzee, who helped her husband abduct 14-year-old Elizabeth Smart at knifepoint in 2002, to refuse mental-health treatment but be released Wednesday after serving her maximum sentence, says state Rep. Ken Ivory. He’s proposing legislation to “close that gap.”

His bill, filed in advance of next January’s legislative session and first reported by FOX 13, would remove credit for time served from a sentence if an inmate pleaded guilty and mentally ill but didn’t accept treatment, said Ivory, R-West Jordan.

“The idea is [Barzee] gets some lesser sentence because she’s mentally ill,” he told The Salt Lake Tribune on Friday. “If someone’s getting a lesser sentence because of a mental impairment, they have to be treated. Otherwise, we need to just fall back to what the sentence would have been.”

Barzee, 72, was released this week after spending more than 15 years behind bars for her role in Smart’s kidnapping. During her nine months in captivity, Brian David Mitchell, Barzee’s husband, raped Smart almost daily. The teenager was rescued, and Barzee and her husband arrested, after the three were spotted on a street in Sandy in March 2003.

Mitchell is currently serving a life sentence in federal prison. Barzee pleaded guilty to federal charges in late 2009 and state charges in 2010, when she was sentenced to prison and given credit for the seven years she had spent in custody up to that point.

The Utah Board of Pardons and Parole said in July that Barzee would stay locked up until at least 2024 but announced unexpectedly early last week that it had made an error and she would be released. While serving her state sentence at the Draper prison, she had refused to complete mental-health treatment.

Steve Burton, president of the Utah Association of Criminal Defense Lawyers said that while he understands Ivory’s rationale, he has concerns with the lawmaker’s bill.

“Prison is not the right place for people to be treated for mental illness,” Burton said. “If someone has a legitimate mental illness, they should be in a hospital, not in a jail. And if what we’re doing is saying, ‘We believe that you still have a mental illness, so we’re going to keep you in prison [for not receiving treatment],’ that seems to be contradictory to helping people who are truly sick.”

Rather than seeing Barzee’s release as evidence of a loophole in the system, Burton said it offers an opportunity to “re-examine” the best way to treat inmates with mental illness.

“Sooner or later, they are going to get out,” he said. “And so just keeping them in a little longer when they’re not doing treatment doesn’t solve the underlying problem.”

The Utah Prisoner Advocate Network (UPAN) expressed similar worries, noting that high-profile cases often lead to “reactive legislation” that can have negative consequences for incarcerated people.

“We would encourage Rep. Ivory to meet with all of the community stakeholders and take a hard look at the data regarding how common situations like this occur and their associated outcomes," wrote Shane Severson, the organization’s director of communications, in a statement. "Is this legislation aimed towards making sure sure offenders get the rehabilitation they need so they do not recidivate, or simply to find a way to keep them in prison longer? If the aim is rehabilitation for mental illness, these offenders should be in a hospital therapeutic environment, not prison.”

Barzee’s attorney has said she plans to follow the requirements of her five-year federal probation, which include seeking mental-health treatment and staying away from the Smarts. But the family worries she is still unstable.

(Rick Egan | The Salt Lake Tribune) Elizabeth Smart speaks about the pending release of Wanda Barzee, during a news conference on the steps of the Utah State Capitol. Thursday, Sept. 13, 2018.

“If I felt like she had turned a corner, that she was sound mentally, I wouldn’t feel bad about her getting out,” Ed Smart, Elizabeth’s father, said Wednesday. “If a person serves their sentence, that’s fine. All indications are she’s still in the same mindset that she was when she pushed Brian to come down to the house and abduct Elizabeth.”

Elizabeth Smart, now a 30-year-old woman, has also raised concerns about Barzee’s release.

“She did appalling things when I was in captivity," she said at a press conference earlier this month. "I know the depths of her depravity.”

Ivory said it’s unfortunate that “the Smarts are dealing with insult upon injury” with Barzee’s release and hopes his legislation will “make sure this doesn’t affect any other families” in the future.

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