ST. GEORGE — Bail reform measures were recently implemented across Utah to address the pretrial justice system. Proponents of the measures say the system has been largely inequitable, where the wealthy, regardless of their risk, are released on bail while poorer individuals remain locked up despite the presumption of innocence until proven guilty.
However, the Utah Judicial Council’s recent decision to implement new bail guidelines for the state, which became effective Oct. 1, is facing criticism that it is both unconstitutional and compromises public safety, according to a statement released by the American Bail Association.
The bill that spurred the reform, HB 206, was passed by the Utah Legislature in March with the support all Southern Utah lawmakers who were present for the vote when the bill came in front of the Utah House.
The legislation was designed to eliminate the disparity between those who have the financial means to post bail and be released, as opposed to those who have limited means and remain in jail solely based on their financial situation. In other words: same crime, same bail, completely different outcomes for the incarcerated.
According to the Libertas Institute, even though cash bail and bail bonds have been used in most pretrial hearings for decades, they have not been used with their intended level of individualization, largely due to the fact that in most cases, judges are not provided with adequate information to make a judgement on a particular individual when considering whether to incarcerate them.
The sponsor of HB206, Salt Lake City Rep. Stephanie Pitcher, told St. George News in a previous interview the bill was introduced to address a bail system that “disproportionately harms the poor.” That type of bail system, she said, is a contradiction to the premise a defendant is presumed innocent until proven guilty under the protections afforded by the U.S. Constitution.
Instead, Pitcher said, the bail system should serve to ensure that individuals are given “the least restrictive conditions of release” to both reasonably ensure their court appearance and uphold public safety.
However, the American Bail Association says the same constitutional benchmarks and safety goals the measures are attempting to achieve are actually being defeated by them. According to the association, the revamped bail schedule dictates a $5,000 maximum felony bond for any offense, no matter how serious the charge, and they cite two examples of sex offenders released back into the community in northern Utah.
In addition, they say the new schedule is based solely on a defendant’s income level, while ignoring other personal financial factors, including cash assets.
A question of public safety and criminal history
Washington County prosecutor Ryan Shaum told St. George News that bail functions as the safety net, and its primary function is to prevent an individual from fleeing or failing to appear. But more importantly, he said, it is to secure the safety of the victim and the community by detaining a suspect with a history of habitual or violent offenses.
That has always been the case to some degree, he said; however, those decisions were based primarily on the probable cause statements filed by arresting officers in support of the arrests and which outline the nature of the offenses.
With the changes associated with HB 206, the criminal history and nature of past offenses or the number of failures to appear carry more weight when it comes to custodial decisions, which also means that the judge establishing bail will need more than the probable cause statement outlining that particular incident or offense upon which the arrest was based.
In order to set appropriate bail, the criminal background and history is needed to determine if the suspect is either a danger or a flight risk. If neither exists, Shaum said, then bail should be set according to their ability to pay, and for low-risk individuals, a signed statement promising to appear is sufficient, and they should be released as their case moves through the court system.
To that end, the risk assessment and criminal history play an even more important role in establishing the pretrial custody requirements.
A problem arises, Shaum said, when the county attorney’s office gets the probable cause statement on a suspect who may have an extensive criminal history that involves violence, for example, but the particular offense the person was most recently arrested for did not require a high bail. In many cases, the individual posts a bond and is released, and by the time the prosecutor’s office gets wind of the arrest, the suspect is no longer in custody and it is too late.
“It is very difficult to have an individual arrested for a second time because they should not have been released in the first place,” Shaum said.
With the new changes, Shaum said officers are now tasked with making sure the probable cause statement includes the arrestee’s criminal history and any risk factors, including whether they have a history of failing to appear in court.
“These officers now need to add more information that goes above the details concerning that particular offense,” he said.
While this will allow for a higher level of discretion when determining if a suspect should be held without bail, Shaum said it also means another job responsibility for law enforcement officers.
“It adds to their workload as well.”
However, despite some challenges associated with the changes, he said he believes that overall, bail reform is a move in the right direction.
But are the tools themselves risky?
To help advance bail reform statewide, the Utah Judicial Council voted in August to create a bail schedule that includes the use of a pretrial risk assessment tool that was introduced in 2018 and serves as a predictor of the probability of three future actions by the suspect: failing to appear in court, committing new criminal activity and further, any new violent activity.
The assessment takes into account the individual’s age at the time of their arrest, pending charges at time of offense, current violent offense and history of violent offenses. It also takes into account the person’s misdemeanor, felony and violent criminal history, any failures to appear over the last two-to-five years and how many times the individual has been incarcerated.
Those factors are calculated, and the results are used to determine the level of risk using a grid chart. Once the risk level is established, bail is assigned accordingly.
The American Bail Association says risk assessments are faulty, citing in their statement “multiple independent university studies that have concluded the mandated use of risk assessment discriminates against minorities.”
These type of assessments have fallen out of favor in recent years, the association said, even by the Pretrial Justice Institute, which in February stated the assessment tools “can no longer be a part of our solution for building equitable pretrial justice systems.”
Changes to an already shifting landscape
In between a patrol car and the courtroom is another location that is being affected by the changes: Purgatory Correctional Facility.
Previous to the new measures, if a person was arrested for a third-degree felony, for example, and there was not a specific bail order, the bail would be $5,000, payable at the jail.
Washington County Sheriff’s Chief Deputy Jake Schultz told St. George News that since bail is no longer established by the offense, individuals are held until the judge assigns either a bail amount or a pretrial release order with conditions imposed by the court.
“We don’t hold anyone without an arrest,” Shultz said. “And we won’t release anyone without a judge’s order – it’s as simple as that.”
The process typically takes between two to four hours from the time a suspect arrives at the jail, unless the processing takes place in the middle of the night. Then, Schultz said, it can take up to eight hours, at which point the inmate is already processed through booking and in a housing unit.
For the most part though, he said the judges have been very good about checking the arrests and assigning bail or release orders every few hours, even on the weekend. It is only during the off-hours that there is a delay, he said, which can create a bottleneck in booking, particularly when there is a high volume of arrests.
Schultz added that drastic changes mandated by the jail’s COVID-19 restrictions are also still in play, so the reform measures hit a department that was already involved in a complete shift in jail operations.
However, much like Shaum, despite the difficulties, Schultz said the bail reform measures being implemented are important.
“Pretrial freedom should never be based on whether an inmate has a good job or a lot of money,” he said.
Copyright St. George News, SaintGeorgeUtah.com LLC, 2020, all rights reserved.