Lawsuit challenges Utah’s cash-based bail system

It’s the first legal challenge to the policy, which has been hotly debated in recent years.

(Chris Detrick | The Salt Lake Tribune) Attorney Karra Porter speaks during a Judiciary Interim Committee Wednesday, November 15, 2017. Porter filed a lawsuit on Monday challenging Utah's cash-bail system. She said more litigation will be coming if Utah officials don't change their practices.

Dawn Hepikiya Medina was arrested last week for shoplifting, but she can’t get out of the Iron County jail unless she can pay $7,000.

Justin Horton has to post $5,000 bail before he can leave the Carbon County jail after he was arrested days ago for allegedly cutting catalytic converters and hiding from the police.

And Madelaine Thompson was recently arrested after a fight with her family, but she can’t pay the $3,000 bail a judge set for her.

These three Utahns are stuck in southern Utah county jails because they can’t afford to get out. On Monday, an attorney filed a potential class-action lawsuit on their behalf against the two judges who set their bail. It asks a federal judge to declare the current bail process unconstitutional.

Attorney Karra Porter says Utah officials can expect more lawsuits — unless state judges change the way they determine who gets out of jail and for how much.

“These clients understand that they’re not going to get money out of this,” Porter said Monday, though the lawsuit does seek attorneys fees and other costs. “They are trying to make it better for, not just themselves, but for other people.”

It’s the first legal challenge that attempts to topple Utah’s current cash-based bail system, a hotly-contested policy in recent years that has sparked a bitter fight between law enforcement on one side and prosecutors and defense attorneys on the other.

Reversed reform

State legislators passed a bail reform bill in 2020, which replaced the normal cash bail-centric model with one that relies on risk factors when deciding whether to detain or release a person.

But lawmakers undid much of that work a year later, after sheriffs and other law enforcement officials argued the move failed victims and let dangerous people go free.

A 2021 bill largely brought Utah back to a cash-bail system, removing the part of the law that introduced risk assessment but advising judges to impose the least restrictive conditions of release available.

As a result, Porter said Monday that people accused of minor crimes who can’t buy their way out — like Medina, Horton and Thompson — are more often left in jail than dangerous criminals. She said her law firm is “monitoring” jails in every county in the state, except Salt Lake County, which has a different system.

“In Utah, hundreds of people are detained in county jails every day solely because they cannot afford to purchase their liberty,” she wrote in the lawsuit.

The lawsuit announced Monday states that even a few days in jail “significantly increases the risk of job loss, eviction from housing or homeless shelter, exposure to trauma in custody, and impaired family connections.”

Porter said her law firm has considered this type of litigation for years, but held off after legislators passed bail reform. When that was undone, attorneys started digging and found problems.

She said the lawsuit addresses a common situation in Utah, where judges can decide that jail isn’t necessary, but then attach a costly price tag as a condition of release — without considering whether the accused can pay or their risk factors.

“As a result, a person with means can simply buy his way out of jail,” she said, “[and] a poorer person charged with the same offense will languish in jail.”

Potential class-action lawsuit

Judges Ann Marie Mciff Allen and Jeremiah Humes are named as defendants in the lawsuit. But Porter said attorneys aren’t specifically targeting those two judges. They hope the lawsuit will start a dialogue that can lead to change.

“I wish our clients could be here today to talk to you,” Porter told a group of reporters on Monday, ”but they can’t because they are in jail because they are poor. And so we hope to have the opportunity to work with the judges, with the state, so that we don’t have to keep filing lawsuit after lawsuit after lawsuit. But we’re prepared to do that.”

Court officials did not immediately respond to a request for comment Monday.

The lawsuit announced Monday states that there were about 28 people incarcerated in Beaver, Carbon or Iron county jails in the last two weeks who are subject to cash-based bail without their risk factor or ability to pay being considered. Its three plaintiffs are asking the judge to certify their lawsuit as a class action, so others can join the lawsuit.

When Gov. Spencer Cox signed the bill repealing Utah’s bail reform earlier this year, he said he felt the legislation was flawed and said he planned to call a special session to pass a better law that “appropriately balances public safety and the rights of defendants who are presumed innocent.” That hasn’t happened yet.

House Majority Whip Mike Schultz, who sponsored the bill rolling back bail reform, said the work group is continuing to meet but hasn’t drafted legislation yet. However, he said legislative attorneys have reassured lawmakers that the state’s existing law is legal.

”Anyone can file a lawsuit and make a big deal out of it and hold a press conference and say whatever they want to say,” Schultz, R-Hooper, said. “But the reality is the law is constitutional as written and the judges are following the constitution.”

Tribune reporter Bethany Rodgers contributed to this report.