SALT LAKE CITY — A Utah law tightening the use of cash bail took effect last week, a change supporters say will ensure defendants don’t remain jailed simply because they can’t pay.
“Whether someone has $5,000 or $10,000 to bond out — or not — does nothing to keep our community safe,” said Rep. Stephanie Pitcher, the Salt Lake City Democrat who sponsored the legislation. “It’s really a wealth test.”
The 2020 law directs judges to prioritize other sorts of nonmonetary requirements, and only those needed to make sure a person shows up to court and doesn’t pose a threat to the public. When they do set bail, they must consider a person’s ability to pay.
Previously, judges typically tied bail to the offense and not to any sort of risk analysis for the person appearing before them.
Richard Mauro, the executive director of the Salt Lake Legal Defender Association, said preparing a defense is easier for those released from jail. A person can more easily confer with attorneys, keep a job and stay connected with family.
“For people who are in custody, there’s a powerful incentive to plead guilty for no other reason than to get out of jail,” Mauro said.
Prosecutors and sheriffs also embraced the measure that creates a presumption of release for low-risk suspects on their own recognizance. But it drew strong opposition from bail bond companies that argued suspects will get out and reoffend.
Pitcher, a prosecutor in the Davis County Attorney’s Office, said she has seen wealthy Utahns front the cost of bail and go home without batting an eye. Meanwhile, low-risk defendants remain jailed because they can’t come up with an initial 10% for bail bond services.
The law will likely bring to bear tougher conditions for deep-pocketed defendants who pose a risk to the public, she said, such as an ankle monitor, drug and alcohol testing, or a curfew.
Monetary bail systems similar to Utah’s existing program are facing constitutional challenges in several other states. Pitcher said her plan allows the state to avoid the cost of defending against such a lawsuit.
The measure also incorporated recommendations from a 2017 legislative audit and a separate 2015 report from a committee of judges, attorneys, lawmakers and others.
Years ago, Utah standardized bail across the state so that a person arrested in St. George wouldn’t have to scrape together more than someone picked up for the same offense in Logan, said 3rd District Judge Todd Shaughnessy.
In recent years, however, Utah’s court system has been trying to give judges more information about a particular defendant, in part because research shows those who are low-risk are more likely to carry out a new crime in the future if jailed for more than a day.
“Conversely, if you let high-risk individuals out on the street, there’s a much greater likelihood that those individuals are going to commit crimes, that those individuals are going to not show up for court and those sorts of things,” Shaughnessy said.
Under the changes, those to remain in jail include defendants facing first-degree felonies; anyone arrested while already on pretrial release, probation or parole; or a person charged with domestic violence who is deemed a danger to a victim.
The law also encourages transparency in the most serious cases, Shaughnessy said. It formalizes a process for prosecutors to request no chance of release for certain defendants, requiring them to make the case in a detention hearing.
A mechanism in the Utah measure funnels bail forfeiture money into local supervision programs for those awaiting trial outside the walls of a jail.
But longtime bail bondsman Gary Walton said he believes courts will struggle to hold defendants accountable if they are released and then fail to show up at further court dates.
“They call it criminal justice reform, but I call it elimination of responsibility for criminals,” said Walton, with Salt Lake City-based Beehive Bail Bonds. “There probably will be some minimal bail continuing, but it’s going to be smaller amounts and infrequently used.”
Walton said most of Utah’s bail bonds companies are small, family businesses.
“To sit there and see them destroyed, right or wrong, is kind of a sad thing for some of us,” he said.
With the new law, Utah joins several others in requiring judges to consider a person’s financial situation.
But it doesn’t go as far as reforms in other states like New York, which has eliminated cash bail for most offenses and directs judges to only consider flight risk when setting pretrial conditions.
Utah’s Commission on Criminal and Juvenile Justice will track the effects of the changes, but the analysis could be muddled by the pandemic, Pitcher said. The coronavirus has forced the release of many low-level offenders as counties seek to limit jail populations to reduce the spread of the virus.
“Because of COVID-19, we’ve already been making more thoughtful release decisions,” Pitcher said.