Bail reform took effect 4 months ago, here's why Utah lawmakers want to repeal it

The Capitol in Salt Lake City is pictured on Friday,
Feb. 5, 2021.

(Kristin Murphy, Deseret News)



Estimated read time: 6-7 minutes

SALT LAKE CITY — After passionate debate, a bill with big implications for Utah's bail system cleared the Utah House of Representatives on Friday, taking one step closer to almost fully rolling back a law that was implemented just four months ago.

HB220, sponsored by House Majority Whip Mike Schultz, R-Hooper, would repeal almost all of a law passed last year, HB206, that required a judge to release people accused of low-level crimes using the least restrictive condition appropriate for their case.

The aim of last year's change was to prevent Utahns from staying in jail simply because they can't pay their way out.

But GOP legislative heavyweights including Schultz and House Majority Leader Francis Gibson, R-Mapleton, urged lawmakers to roll back that law and start bail reform again from scratch, saying in just the four months it's been implemented some of the worst offenders have been released from behind bars in just hours.

"What has happened since? Ask the stakeholders that supported that bill," Schultz said. "It was not delivered as it was intended to do. The law is broken on all sides. It is holding people it shouldn't, and it is releasing people it shouldn't."

Schultz pointed to a case in October when agents investigating a child pornography case arrested a Cache County man previously convicted of sexually abusing a child after they reported finding hidden cameras in the man's house. He was arrested Oct. 7, 2020 — a week after HB206 took effect — for investigation of 10 counts of sexual exploitation of a minor.

"Cameras were found throughout the residence specifically placed in rooms where children sleep, bathrooms that children used. The prosecutor requested the individual be held with no bail or no pretrial release because he posed a danger to the community and the children living in the home," Schultz said.

And yet, the man was released within hours without bail.

After his release, prosecutors asked a judge for a no-bail arrest warrant. But his attorneys, opposing the request, sought a detention hearing before a warrant for his arrest could be issued, explicitly naming HB206 as grounds. They also noted the man had already been released to pretrial services and had an ankle monitor, according to court documents.

"Does this sound like a more thoughtful, individualized approach? Does it sound like it provided more tools for the judge? And has it addressed, to a greater extent, the public safety risk?" Schultz asked his fellow House members. "It doesn't sound like it to me."

Even though HB206 had broad support from a coalition of stakeholders last year, from law enforcement and prosecutors to defense attorneys and advocacy groups, Schultz said he's yet to meet a "single person who believes this law can stay as is."

"There must be a change," he said.

So Schultz argued lawmakers need to repeal the law to "push the pause button" so legislators and stakeholders can figure out "why the law isn't working as intended and while public safety is at risk."

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"We must try to do all we can to fix this," Schultz said, "and we must protect public safety."

But Democrats, including the sponsor of the law, Rep. Stephanie Pitcher, D-Salt Lake City, put up a fight to stop repeal, pointing out the individual in the Cache County case didn't commit any new offenses when he was released and was given terms upon his release.

She asked Schultz if there was "any data to support HB206 has been bad for public safety?"

"I want to point out that's one of the biggest problems we have is the lack of data," Schultz said, adding "it would have been nice to have data pre-HB206. And as we move forward that is one of the most important things we have is data."

But Schultz also added: "I'm not a data guy, I look at what's actually happening in real life." He said a "nuclear bomb" went off amid the stakeholders that previously supported HB206, and now most aren't aligned on what to do with the law. He said legislators who have "sat in those groups trying to bring those parties back together to find solutions have come back and said, quite frankly, it's a (expletive) show."

But Pitcher urged lawmakers not to support Schultz's bill, arguing it would leave more problems in its wake and would be a "half-baked repeal."

"It looks like a repeal on paper. It's not a full repeal," she said, pointing out courts "will be maintaining certain practices" including an individualized assessment of a person's ability to pay bail.

"All of these work in harmony with these parts that the court will be maintaining in court rule," she said. "So it is not a full repeal, this is a half-baked repeal which, frankly, leaves us in a messier situation than we're in right now."

Pitcher also commented on cases that law enforcement officials compiled that they say illustrated problems with HB206.

"Make no mistake, I acknowledge there have been problems with implementation," she said. "But the data in this binder does not promote the narrative that HB206 has been bad for public safety."

Pitcher said of the 66 cases cited, four of them happened before HB206. Five were dismissed or declined prosecution. One was a duplicate. One was a murder and that individual is being held currently without bail thanks to a provision created in HB206. One person was released on probation and not pretrial release. And of the rest, "only six individuals to date have failed to appear in court, and there have been only nine individuals who have committed a new offense," Pitcher said.

"The vast majority of these individuals are compliant with their pretrial release conditions, and that is exactly the goal of HB206 is to impose conditions to bring an individual back into court when required and ensure they do not commit new offenses," Pitcher said.

Pitcher argued that before repeal occurs, "we need a process in place to address all the moving of pretrial release conditions."

Rep. Casey Snider, R-Paradise, then testified in support of Schultz's bill, saying he originally supported HB206 because "I don't think we should put people, poor people in particular, in jail indefinitely."

At times grimacing while he spoke, Snider explained that the Cache County child pornography arrest happened in his district after he voted in favor of HB206.

"Let me tell you what happened. He was charged with internet pornography, child pornography. He had video cameras pointed at his neighbor's kids, he exploited children, period," Snider said. "That's what he was arrested for. And because of the provisions in HB206 ... he was out of jail before they could even move the victims from their home.

"We re-victimized people because of the legislation we passed," Snider said. "I assisted in that process with my own vote."

Snider added: "I do not disagree with the intent of what we started with, but I have to own what happened to a child in my district because of my vote. This bill before us gives us a chance at a reset ... And the victims that have been exploited by the mistakes that we made deserve that reset."

The House voted 51-21 to approve Schultz's bill. It now goes to the Senate for consideration.

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Katie McKellar

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