Last legislative session, Rep. Stephanie Pitcher wrangled together groups from across the criminal justice system to solve what she sees as a longstanding flaw in the way Utah treats defendants before trial, when their guilt or innocence hasn’t yet been established in court.
Her problem was this: Why should relatively low-risk defendants sit behind bars for weeks or months awaiting trial because they’re poor, while rich people can simply post bail and walk free?
It’s a question that has prompted a bail reform movement across the nation in recent years, but also one that has bedeviled states given the high stakes involved, with some debates pitting public safety versus personal liberty. So it astonished some last year when Pitcher, a Salt Lake City Democrat whose full-time job is as a prosecutor, managed to assemble a broadly supported reform package and to win approval from the Republican-dominated Legislature.
But now, another powerful state representative is trying to roll back these hard-won reforms. Though it’s only been a few months since the changes kicked in, House Majority Whip Mike Schultz said the confusion and disruption over that short period has been enough to set off a “nuclear bomb” inside last year’s coalition.
“Quite frankly, it’s a s--t show,” Schultz, recently speaking on the House floor, said colleagues have told him after trying to negotiate solutions.
The situation has gotten so contentious, Schultz, a developer, argues, that the only way forward is a wholesale repeal. From there, elected leaders and representatives of the criminal justice system can regroup and start the conversation over again.
Supporting him are sheriffs from across the state, with lobbying help from former House Speaker Greg Hughes. These law enforcement leaders have relayed horror stories about the changes — such as one about a convicted predator who was arrested for allegedly filming child pornography in his home but was freed from custody before police could even move the victims to safety.
In a case cited by a Cache County prosecutor, a suspected drunk driver who plowed into a car full of four teenagers was released almost immediately from jail. One of the teens is now paralyzed from the waist down.
“It has been an unmitigated disaster,” Scott Burns, executive director of the Utah Sheriffs’ Association, said of bail reform during a recent legislative hearing. “It is a humiliation to officers. It’s a humiliation to jail personnel.”
The arguments were enough to sway the Utah House, which passed the repeal bill, HB220, by a convincing 51-21.
But supporters of last year’s pretrial release bill, HB206, say it’s misleading to pin many of these frightening anecdotes on the reforms. The Cache County car crash that left the teenager paralyzed happened before the legislation even took effect.
Prosecutors in the state’s largest counties say the statistics that are available suggest the change has been working, keeping the most dangerous offenders off the streets while preventing lower-risk defendants from being warehoused in jail just because they can’t afford to post bail.
“Those who are saying they want to repeal it have not been able to give us, certainly not to me, the specifics by which to support their anecdotal, alarmist fearmongering,” said Salt Lake County District Attorney Sim Gill, a Democrat. “In the largest county, it’s working.”
‘Antithesis of presumed innocence’
Gill said the criminal justice system over decades “became systemically lazy” on the issue of pretrial release, going along with the inherited idea that cash bail works to protect the community. In Utah, that’s been done by assigning dollar amounts to different crimes so that officials can calculate the bail total for each arrestee based on their charges.
But there’s been growing skepticism about that concept, as states across the nation question why rich people should be able to pay their way out of jail while the poor lose their liberty.
“Traditional cash bail simply says we want to secure your presence in court, so therefore, pay this amount,” Utah County Attorney David Leavitt, a Republican, said in a recent interview. “Wealthy people who are dangerous get out, and poor people who are not dangerous don’t get out.”
And holding people in jail while their case is pending can have its own consequences: job loss, eviction, families driven into debt.
All that, Gill said, without really getting at whether the person is a public safety risk or not. A system that broadly incarcerates people before their conviction also runs counter to the principles that are supposed to undergird America’s criminal justice system, Leavitt contends.
In fact, he said, “pre-serving your sentence is the antithesis of presumed innocence.”
This move to rethink the cash-bail system has been gaining traction across the country — although, as in Utah, reform attempts have often been messy and have occasionally failed entirely.
In New York, a progressive package of bail reforms imploded last year after police in the state blamed the overhaul for a spike in crime. The state ended up backtracking on many of their reforms, only a year after passing them.
California voters last year overturned a state law that would’ve abolished cash bail, to the excitement of far-left activists who argued that the new system would be even more oppressive than the old one and would further deepen racial inequities.
And former New Mexico Gov. Susana Martinez last year warned Utah that pretrial release risk assessments had created major public safety problems in her state.
“I encourage those in Utah to be very skeptical of voices calling for misleading devices that would result in letting dangerous criminals back out on the street to terrorize communities,” she said in a video shared with state lawmakers.
With the difficulty other states have encountered in building consensus on bail reform, Pitcher pulled off a feat last year by convincing all the players in the criminal justice system to negotiate and ultimately to get behind HB206, Leavitt said. The bail industry was the only major interest group that opposed the legislation, according to Pitcher.
Through her bill, the state has shifted to a model in which judges free people from jail based on risk, by considering if the defendant is likely to show up for future court hearings; the safety of witnesses, victims and the public; and whether the person might try to obstruct justice and interfere with the case. The law instructs the court to start out with the presumption that the defendant should be released and to impose “the least restrictive” conditions necessary to protect safety and the integrity of the legal process.
That could mean sending someone home with an ankle monitor or ordering the defendant to submit to drug or alcohol testing, for example. HB206 created a funding mechanism to support pretrial release programs in each county, to give judges more options for sending people home safely.
Judges can still use bail as a way of discouraging court no-shows, but they look at the person’s ability to pay as they’re setting the amount.
For the most dangerous offenders — people charged with murders or first-degree felonies — the default is to detain them before trial, although they can still qualify for release if a judge concludes that there’s a safe alternative to incarceration.
Those shifts became official Oct. 1. And according to sheriffs, some defense attorneys and a number of Republican lawmakers, the trouble began almost immediately.
A binder of cases
Schultz, R-Hooper, said he’s heard reports of dangerous criminals and sex offenders getting out of jail while low-level defendants sit in lockup, an account backed up by sheriffs who have testified in support of repealing HB206. Cache County Sheriff Chad Jensen, head of the Utah Sheriffs’ Association, has also told lawmakers about judges who are now issuing penny warrants, even for serious offenses.
In one recent traffic stop, Jensen explained, deputies discovered that the driver had multiple felony warrants for drug distribution and other crimes. But the man’s bail was only one cent, so he simply handed deputies a penny from his cup holder and drove off, the sheriff said.
Utah’s sheriffs aren’t opposed to bail reform and are willing to talk about reworking the system with less radical changes, he said.
“Without bail, or with these penny warrants or pretrial release with no conditions, there’s nothing holding people accountable for what they’re doing,” said Jensen, whose association didn’t grant an interview request. “And I think that’s why we’re seeing the warrants and a lot of the crimes that just keep continuing because of some of the decisions and the chaos across the state with what [HB206] did.”
Utah sheriffs have compiled a binder of criminal cases that they say prove bail reform isn’t working, Pitcher said.
The representative has studied all 66 incidents in this collection — and her analysis found that most of the defendants had so far showed up for their court dates and committed no new offenses in the lead-up to their trials. The binder only documents six people who have failed to appear in court and nine who have committed new offenses while on pretrial release, she said.
And supporters of HB206 say the penny warrants have nothing to do with the reforms and are actually a byproduct of the pandemic, which has upended normal court and jail processes.
The problem, Leavitt said, is that many defendants aren’t familiar with the platforms used for virtual court proceedings and are missing their appearances because of these technical challenges. So judges are handing down these penny warrants, as they seek to avoid unnecessarily inflating jail populations during the pandemic.
“It’s COVID-19 that’s causing that,” he said. “Not bail reform.”
While statewide statistics on the impact of last year’s reforms aren’t available, data shared by Gill’s office actually indicates that more Salt Lake County violent offenders are being incarcerated pretrial, with the number of no-bail detentions rising for domestic violence cases, first-degree felonies and weapons charges in the months since HB206 kicked in.
He said his prosecutors have only been asking judges to jail people who pose a threat to public safety, which represent just 12% of cases.
“When I look at my jail, at the Salt Lake County jail, there are more first-degree felons who are being held there, more violent felons being held there,” he said. And the biggest drop that we’ve seen is in nonviolent, Class A misdemeanors and nonviolent third-degree felonies.”
Sheriffs aren’t the only group that is in favor of a repeal, though. Steve Burton of the Utah Association of Criminal Defense Lawyers recently told lawmakers that HB206 is actually hurting the people it was intended to help and urged them to scrap the law and start the reform conversation from scratch “rather than trying to do it piecemeal.”
Many other participants in the bail reform debate — including Pitcher herself — acknowledge the imperfections of HB206 but don’t want to sacrifice the gains it made.
Pitcher said a “fix-it bill” slated to run this session would, among other things, restore to jail commissioners the power to release misdemeanor defendants with a financial condition. Because HB206 had inadvertently deleted this ability, some low-risk individuals have waited in jail longer than intended, she said.
The legislative fix sponsored by Sen. Todd Weiler, R-Woods Cross, would also allow prosecutors and defendants to subpoena witnesses to testify at pretrial detention hearings but restrict their ability to call victims to the stand. Weiler’s bill, SB171, narrowly won approval from a Senate committee and is under consideration by the full chamber.
Schultz and some others, though, firmly feel that the HB206 model is too broken for a problem-by-problem fix.
“This is one of the biggest policy decisions we’re making this session, and it’s wrong what we’re doing right now,” he said in an interview. “It’s an injustice to our constituents.”
Schultz said he agrees the old cash-bail system disenfranchises lower income Utahns and is committed to overhauling it. But he thinks state leaders first need to clear away HB206 so that all the involved groups can take time to thoughtfully craft a new bail reform proposal.
A spokesman for the Utah courts said they were initially against Schultz’s repeal effort but eventually shifted to a neutral stance after he promised them that he’d work to retain non-controversial pieces of HB206 and that a task force would continue to study bail reform, with assistance from the courts. Schultz also pledged that the courts could “continue to appropriately address cases” according to their authority and constitutional and legal obligations.
In any case, the courts are eager to be part of the solution, spokesman Geoffrey Fattah said.
“If this can be accomplished without a repeal of HB0206, the Judiciary will be first in line to help find that solution,” he wrote in a statement. “If a repeal results during this session, we will be at every meeting of the task force or work group to share our experience and expertise, learn from others perspectives, and help find solutions.”
Gov. Spencer Cox said his preference would be for lawmakers to pass a bail reform proposal that works for everyone this session. If that isn’t possible, he said he’s open to a repeal.
“I want to get to the right policy,” he told reporters Thursday. “And there’s fairly broad agreement that we’re not there yet.”
HB220 awaits consideration in the Senate with the clock ticking toward the Legislature’s March 5 adjournment.
Reporter Taylor Stevens contributed to this article.