Is Utah's special mitigation statute constitutional despite placing the burden of proof on defendants? State v. Drej Explained

In State v. Drej, the Utah Supreme Court addressed the first constitutional challenge to Utah’s special mitigation statute, which provides a limited avenue for mentally-ill defendants to reduce murder convictions by one degree. The case arose when Eryk Drej, charged with murdering his brother based on delusional beliefs about organ trafficking, challenged the statute’s constitutionality on multiple grounds.

Background and Facts
Drej allegedly shot his brother twenty-two times while acting under delusions that his brother was involved in prostitution and organ trafficking. After being found competent to stand trial, Drej planned to assert three defenses: not guilty by reason of insanity, diminished mental capacity, and special mitigation. He challenged the special mitigation statute on constitutional grounds before trial, arguing it violated due process by placing the burden of proving special mitigation on the defendant by a preponderance of evidence.

Key Legal Issues
Drej raised three constitutional challenges: (1) the statute violates due process because it functions as an affirmative defense that must be disproved by the state; (2) it violates separation of powers because it constitutes a procedural rule enacted without the required supermajority vote; and (3) it violates equal protection by treating mentally-ill defendants differently than those asserting other defenses like imperfect self-defense.

Court’s Analysis and Holding
The court rejected all constitutional challenges. On due process, the court distinguished special mitigation from traditional affirmative defenses, noting that Utah law requires the state to disprove affirmative defenses once raised, but special mitigation is neither an affirmative defense nor a substantive offense—it merely provides mitigation after guilt is established. On separation of powers, the court found the burden of proof provision inextricably connected to the substantive right created, making legislative enactment by simple majority constitutional. On equal protection, the court concluded that defendants seeking special mitigation are not similarly situated to those asserting imperfect self-defense.

Practice Implications
This decision clarifies that Utah’s heightened protection for defendants regarding affirmative defenses does not extend to statutory mitigation provisions that operate after guilt is established. Practitioners should carefully distinguish between true affirmative defenses that negate elements of charged offenses and mitigation provisions that merely reduce culpability. The decision also reinforces legislative authority to allocate burdens of proof for statutory mitigation schemes without constitutional impediment.