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SALT LAKE CITY — Salt Lake attorney Karra Porter said she watched as lawmakers, prosecutors, police and others debated the hotly embattled issue of bail reform.
But after Gov. Spencer Cox repealed a bail reform bill that was passed by the Legislature just months earlier, and then didn't replace it, Porter said she felt it was time for her to take action.
"I don't have confidence that things are being done," she said. "We waited to see whether some changes would be made even though the legislation was repealed. And then when we checked with numerous jurisdictions and we easily concluded that nothing had changed."
On Monday, Porter announced she and her firm have filed a class action lawsuit challenging the state's "unconstitutional wealth-based bail system."
The suit names two Utah judges as defendants, 5th District Judge Ann Marie McIff Allen and 7th District Judge Jeremiah Humes. On Tuesday, Porter amended her complaint to include 4th District Judges Christine Johnson and Thomas Low and 5th District Judge Matthew Bell.
Although five judges are named as defendants, Porter said the lawsuit is really about attempting to change the state's bail system. She does not believe any of the judges are intentionally breaking the law. But rather, they are following the same "unconstitutional procedures" that judges in nearly every county across the state are doing, she said.
The hotly contested issue of bail reform has centered around the notion that poorer Utahns accused of committing nonviolent offenses are unfairly being held in jail longer because they can't afford to pay their way out with bail. HB220 sought to change that. But lawmakers repealed it after just four months because some felt it was causing dangerous criminals to be released.
Porter emphasized that the type of people she's talking about in her lawsuit are those who are nonviolent offenders whom a magistrate has already determined to be eligible for bail. She cited some examples in her lawsuit:
- In Iron County, Hepikiya Medina, 43, was arrested on Sept. 30 for investigation of shoplifting. The judge determined she was eligible for bail and set bail at $7,000, according to the lawsuit. But as of Monday, Medina remained in jail because she could not afford bail.
- Justin Horton, 39, was arrested on Sept. 28 in Carbon County for allegedly stealing catalytic converters. A judge determined he could be released on $5,000 bail but Horton couldn't afford it.
- Madelaine Thompson, 22, of Beaver County, was arrested Sept. 29 "after a mental health breakdown and conflict with her family." Her bail was set at $3,000. She can neither afford that nor the $300 she would have to pay a bondsman.
- In Utah County, Luke Melvin Lewis, 46, was arrested on Sept. 28 for investigation of drug possession, DUI and driving on a suspended license. Bail was set at $10,000. On Oct. 4, Lewis made his initial appearance in court and a public defender was appointed, but his bail situation was not addressed and he remained in jail as of Tuesday.
- Marco Anthony Hernandez, 25, of Spanish Fork, was arrested Sept. 30 for investigation of attempting to disarm a police officer, interfering with an arrest and giving false ID to an officer. His bail was also set at $10,000.
In each of these arrests, Porter said none of her clients were heard nor were their financial situations explained before bail was set.
When a person is arrested, a magistrate can either order that person to be held without bail, released on their own recognizance, or released if bail money is paid. But that decision is based almost exclusively on information provided by the arresting officer. It isn't until a person is formally charged and appears in court — which can sometimes take days after charges are filed — that they have a chance to disclose financial information and have the court appoint them an attorney if they can't afford one, according to the lawsuit.
"This sequence of events means that people who cannot afford to either pay the money, demand for their release, or to hire an attorney are detained without any opportunity to contest their detentions for a minimum of several days after arrest," the lawsuit states.
"These bail amounts are set without constitutional protections," Porter added. "For example, the person's ability to pay is not considered. In fact, courts do not even have that information; they simply rely on whatever law enforcement or a prosecutor tells them.
"The arrestee is not told that bail is being set, not given an opportunity to participate, not provided with counsel, not asked for information pertinent to conditions of release. As a result, a person with means can simply buy his way out of jail; a poorer person charged with the same offense will languish in jail."
She said none of the clients she is representing is seeking financial compensation from the lawsuit. Her ultimate goal is to sit down with policymakers and show them how she believes the problem of bail reform can be resolved.
"We want the court to look at what's happening and declare it unconstitutional," Porter said. "We really hope a statewide change is made, otherwise we'll have to sue all over the state."