Editor’s Note: After this story was published, lawmakers reviewed legislative interim rules and determined the motion to encourage the courts to halt bail changes actually passed. An updated story can be found here.
A Utah lawmaker tried but failed Wednesday to put the brakes on an expected change in how the state’s court system handles bail.
State courts are preparing to implement a new screening process for bail in November — one that will give judges more information about defendants in deciding if they will need to post bail — and how much — to get out of jail.
But Rep. Paul Ray, R-Clearfield, expressed concern about the changes during a Law Enforcement and Criminal Justice Interim Committee hearing, saying the courts should have come to legislators first before considering such a “dramatic policy change.”
Those from the bail-bondsman industry warned that with the new protocol, jails will become revolving doors for criminals. But those in support of bail reform countered, saying the changes will assess actual risk to the public and not just release those who can afford to pay.
Wayne Carlos, with the Utah Association of Professional Bondsmen and Agents, told the legislative committee that people should be wary of trusting those who have already violated the “public’s trust” by committing a crime. He questioned the worth of promises from such people to show up in court without the risk of forfeiting bail.
“If it sounds too good to be true, it probably is,” he said. “What is the real reason the courts are pushing this? Let’s find out before it’s too late.”
But former U.S. Attorney for Utah Brett Tolman, who spoke in favor of the changes, said it’s the bail-bond industry that has a “stranglehold” on the courts and stands to benefit the most from leaving the current system in place.
That system, Tolman said, does not assess public risk and instead focuses only on whether a defendant can pay. This means some of the most dangerous criminals — high-level drug dealers and gang members — are almost always let go. Defendants who are minorities and drug users, he said, are often left to languish in jails because they can’t afford to get out.
“We should not be basing public safety on one criteria: Do you have cash?” Tolman said. “How have we gotten to this place?”
The Utah Judicial Council approved the new bail process in January, with a start date of Nov. 13. According to court officials, the new program will give judges an automated report on a defendant, which will include his or her background information, failure-to-appear records and history of violent offenses. The judge can then decide a bail amount — or perhaps release a defendant without the requirement of posting bail. Previously, judges have most often relied only on probable cause statements filed by an arresting officer when making decisions on bail amounts.
Jeff Clayton, executive director for the American Bail Coalition, told legislators that the automated reports are almost always too lenient.
“The biggest problem is that it never recommends bail,” Clayton said. “It always recommends release.”
According to 2013 data gathered by Measures for Justice, 43 percent of Utah’s inmates remain in jail with pending cases. In Salt Lake County, 60 percent of inmates in December 2013 — the most recent data available — were being held pretrial.
Ray asked the committee on Wednesday to “strongly recommend to the courts to hold off on any implementation” until state lawmakers can take a look at it. But the reception from fellow legislators was lukewarm. While the motion had enough support from House members, it tied among senators — meaning the motion failed.
Rep. Kelly Miles, R-Ogden, said he had concerns that passing the motion would punish the courts for not involving legislators, which was never required.
“I do agree, you’ve raised some concerns,” he said. “Maybe this isn’t the right way, or it can be tweaked. But I think that can be done in other ways without telling [the courts] to stop their process.”
Court officials said after the legislative hearing that they still plan to implement the changes.
“The Utah Courts has always been committed to examining pre-trial issues,” spokesman Geoff Fattah said in a statement, “and there will be future ongoing discussions after implementation involving stakeholders.”