Utah judges want to know more about defendants before they set bail — but lawmakers are not so sure

Within 24 hours after a person is arrested, judges across Utah must make a decision: Should the suspect be required to pay money — and how much — to get out of jail until trial?

It’s not a decision that is taken lightly, says Judge Todd Shaughnessy, but it does have one major problem.

“As things stand right now, we have to make that decision with basically no information,” the 3rd District judge said in a recent interview.

Defendants can either pay the full bail amount set by a judge in cash, or they can pay a smaller bond to a bail bondsman, who then pays the bail amount to the court. The goal in setting bail amounts is to ensure that a defendant is not a safety risk to the public and that the defendant will show up for court dates.

But oftentimes, judges make that decision based on only one source of information: a probable cause statement filed by a police officer. Sometimes, that can be a mere sentence, such as, “Suspect was in possession of heroin, field test positive.”

“Because we don’t have anything else to go on, we default to the bail [amount] schedule,” Shaughnessy said. “That’s fine for some people, if you have money and can make bail. But if somebody doesn’t have money to pay a bail bondsman, is someone staying in jail and remaining in jail because they’re poor? And if they are, is that fair?”

A new screening process that would give Utah judges more information about defendants, including criminal history and a person’s history of skipping court, was expected to be implemented this week. But court officials have opted to delay the new process after Utah lawmakers expressed concern that the courts were making changes without their input. And the bail bond industry is fighting against the new screening tool.

During a September hearing, legislators passed a motion asking that the courts postpone the changes until they can be considered by lawmakers in the upcoming legislative session. Also, legislative leaders in October penned a letter to Utah Supreme Court Chief Justice Matthew Durrant asking for a delay.

The letter, signed by both Senate President Wayne Niederhauser, R-Sandy, and House Speaker Greg Hughes, R-Draper, noted that in eight other states where similar reform was implemented, the legislatures had authorized the changes.

Initially, court officials planned to move forward, but now they say they’ll work with legislators and others before launching the program.

In a response letter, Durrant wrote to the legislative leaders that the courts decided to pause the measure to provide more information to lawmakers, who he believes have been fed “misinformation” from bail bond industry representatives.

‘Sort of a no-brainer’

The public safety assessment is a two-page automated report about a defendant, which includes his or her background information, failure-to-appear records and history of violent offenses. The report then rates a defendant on a scale of one to six on the likelihood of missing a court date and the likelihood that he or she would commit “new criminal activity.”

It then recommends a release type: release on own recognizance, release with special requirements or detain. A judge, however, makes the ultimate decision on the conditions of any release — and whether posting money for bail will be a requirement.

FACTORS CONSIDERED IN THE PUBLIC SAFETY ASSESSMENT<br>• Age at current arrest<br>• Current violent offense<br>• Pending charge at the time of offense<br>• Prior misdemeanor conviction<br>• Prior felony conviction<br>• Prior violent conviction<br>• Prior failure to appear in the past two years<br>• Prior failure to appear older than two years<br>• Prior sentence to incarceration<br>Source: Utah State Courts

The assessment was developed by the John and Laura Arnold Foundation, a Texas nonprofit that works on criminal-justice reform.

State court officials say this report won’t eliminate money bail in Utah, and it won’t stop judges from ordering that a bond be posted to get out of jail. And because rural areas don’t have the same pretrial services setup that places like Salt Lake County does, they say cash bail will remain an integral part of Utah’s criminal-justice system.

Shaughnessy said, to him, the issue boils down to whether judges should have more information available before making important decisions about bail that could have lasting effects on someone’s life.

“That’s sort of a no-brainer,” he said. “Why would you not want judges to have more information?”

‘A wave of crime’

The most vocal opponents of the pretrial risk assessment have been representatives of the bail-bonds industry. They have warned legislators that with the new protocol, jails will become revolving doors for criminals.

Jeff Clayton, executive director for the American Bail Coalition, told legislators during a September interim hearing that the automated reports are almost always too lenient.

“The biggest problem is that it never recommends bail,” Clayton said. “It always recommends release.”

Clayton said later in a statement that the proposed tool is flawed and applauded Utah legislators who “concluded that it was time to stop the implementation before it unleashed a wave of crime in Salt Lake City.”

Those locally in the bail bonds industry expressed similar concerns, saying they worry there was a lack of transparency in selecting the tool and that more study should be done about its use in other states. Bail bondsmen fear the new tool would “dismantle the bail bond process,” said Wayne Carlos, with the Utah Association of Professional Bondsmen and Agents.

And while a 2017 legislative audit found Utah’s failure-to-appear rate in 2015 was about 26 percent for those who went through a bail bondsman — but only 17 percent if cash bail was posted — bail enforcement agents say they go after those clients, rearrest them and bring them to court. And, they add, it’s at no cost to taxpayers.

“Trust and believe, a lot of them are repeat customers,” said Dyon Flannery, a Utah bail enforcement agent. “We know the people who we are dealing with.”