A change, years in the making, gives Utah’s judges more information about those accused of a crime before deciding if the suspects must post bail.
While the courts see the new risk assessments as responsible reform, the bail bond industry is critical, because it is expected to result in fewer people having to pay to be released from jail pending a trial.
The change quietly took effect May 29, about seven months after a Utah legislative committee passed a motion encouraging courts to halt the reform. Court officials said then — and affirmed last week — that the vote wouldn’t change their plans.
Rick Schwermer, Utah’s state court administrator, told The Salt Lake Tribune through a spokesman that he was happy judges would now have access to “ timely, meaningful, risk and criminal history information” when making decisions on bail.
“This critical data will help them make more careful decisions that are more responsive to both the presumption of innocence and to public safety,” Schwermer said.
Many defendants have the option to post bail to be released from jail, as they await court proceedings. They can either pay the full 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 is to ensure the defendant will show up for court dates.
The new tool weighs a defendant‘s history when a judge determines bail, instead of relying on a bail schedule and the sometimes-limited information judges receive about a person’s arrest.
Previously, Utah judges most often relied on one source of information: a probable cause statement filed by a police officer. But these filings are often vague, sometimes no more than a single sentence about an alleged crime.
“As things stand right now, we have to make that decision with basically no information,” 3rd District Judge Todd Shaughnessy said in a November interview.
The new tool is a two-page automated report, which includes a defendant’s 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 he or she would commit “new criminal activity.”
It then recommends one of three options: Release on own recognizance, release with special requirements or detain. A judge, however, makes the decision — and whether posting money for bail will be a requirement.
Third District Judge Kara Pettit has been using the assessment this week and said through a courts spokesman that the information has been “immensely helpful.”
“I was able to make better-informed decisions — whether that was to release the individual with appropriate conditions, or to hold the individual in jail, with either higher or lower bail than I would have if the only information I had was the criminal charge and probable cause statement supporting that charge,” Pettit said.
State court officials say this report won’t stop judges from ordering a bond be posted to get out of jail. And because rural areas don’t have the same pretrial services that places like Salt Lake County have, they say cash bail will remain an integral part of Utah’s criminal-justice system.
Despite these assurances, Utah lawmakers expressed concern last fall about the changes and asked the courts to delay the rollout until it could be considered by legislators during the 2018 session, which wrapped up in March. Rep. Paul Ray, R-Clearfield, said at that time that he would bring a bill that would ban the tool.
He never did.
Ray said Wednesday he became more comfortable with the assessment after court officials explained how it would be used. But he said he’ll keep an eye on whether it is working — or if it’s letting dangerous criminals out when they should remain locked up.
“I don’t want people kept in jail because they can’t afford bail,“ he said. “But I don’t want someone dangerous being let out.”
Wayne Carlos, president of the Utah Association of Professional Bondsmen and Agents, has been fighting the change for several years. He said if there’s one thing the new system can do right, it’s to help keep the worst-of-the-worst incarcerated.
“It can determine the individual, whatever we do, don’t let this person out,” he said. “That’s who it can identify.”
It’s the people who should be released that are the problem, he said.
“Personally, I just don’t believe an algorithm is going to predict criminal behavior, appearance or recidivism,” Carlos said. “It doesn’t have that capability.”
Because of that, Carlos doesn’t think the change bodes well for Utah. He pointed to a recently released YouTube video from New Mexico Gov. Susana Martinez, warning Utahns to be skeptical of the risk assessment tool, saying it had “devastating results” in her state, including releasing “dangerous criminals.”
New Mexico began using the tool in 2016.
The Santa Fe New Mexican, however, has reported that Martinez didn’t capture the nuances of the state’s rising crime rate.
The newspaper said the crime rate began to rise before the bail reform amendment passed, and many think the issues since its implementation can be attributed to how the courts enforce the new policies.
Still, Carlos predicts Utah will face a similar result. That, combined with more cash-only bonds in Utah’s court system, has him worried about his industry.
If the public safety assessment results in fewer people needing to use bail bondsmen to get out of jail, and the people who post bond do so with cash only, he doesn’t see a how small, locally owned bail bond agents can survive.