Utah prosecutors, public defenders denounce ‘bad faith repeal’ of bail reform

One opponent of bail reform repeal says it poses ‘an existential threat of going backwards’

(Rick Egan | The Salt Lake Tribune) Davis County Attorney Troy Rawlings, speaks out against the proposed repeal of bail reform, along with other top prosecutors and public defenders, during a news conference at Salt Lake County District Attorney's building on Monday, March 1, 2021.

As the clock ticks down the final hours of the Utah legislative session, a group of state prosecutors and public defenders came together Monday to call on lawmakers not to repeal a broadly supported bail reform package enacted last year.

Proponents of the reforms — which aim to keep relatively low-risk defendants from sitting behind bars for weeks or months awaiting trial because they’re poor, while rich people can simply post bail and walk free — say the system now in place under HB206 is significantly better than the old one, which was based on cash bail.

“A system that is based on cash bail impacts the poor, communities of color and the marginalized, disproportionately causing people to lose their jobs, lose their shelter, their homes [and] their apartments,” Salt Lake County District Attorney Sim Gill said at a news conference on Monday. “And [it] impacts in a disproportionate way the economic and the emotional well-being of their families.”

Under the new system, judges free people from jail based on risk, with a presumption that the defendant should be released and an eye toward imposing “the least restrictive” conditions necessary to protect safety and the integrity of the legal process. In making those decisions, judges consider whether 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.

Crystal Powell, a victim’s rights attorney, argued Monday alongside prosecutors and public defenders opposed to a repeal that the “current bail law has been working” — protecting victims while at the same time safeguarding the rights of defendants.

But opponents, including some powerful lawmakers and sheriffs from across the state, say the changes have caused confusion and disruption since they kicked in Oct. 1. And the system has become so dysfunctional, they say, that a full-scale repeal is the only way forward.

To make their case, law enforcement leaders have relayed horror stories about the new system, such as an instance where a convicted predator who was arrested for allegedly filming child pornography in his home was freed from custody before police could even move the victims to safety. (The man’s attorney told The Tribune on Monday that he was released on “extremely strict conditions,” including a GPS ankle monitor and home confinement. And she said there are no children living in his home.)

Cache County Sheriff Chad Jensen, head of the Utah Sheriffs’ Association, has also told lawmakers about judges who are now issuing penny warrants — warrants that demand payment of just one cent to be lifted — even for serious offenses. And Utah sheriffs have compiled a binder of criminal cases that they say prove bail reform isn’t working.

But the group that assembled Monday at the Salt Lake County district attorney’s office in Salt Lake City said there’s no data to support the contention that bail reform has been bad for public safety. Instead, Gill, a Democrat, said proponents of repeal are relying on “anecdotal alarmist fears without any connection to reality, and they’re relying on half-baked stories and bad facts.”

Some of the problems law enforcement groups point to are a result of COVID-19, which has completely upended the court system, noted Utah County Attorney David Leavitt, a Republican.

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 in an effort to avoid unnecessarily inflating jail populations during the pandemic.

Those have “nothing to do with bail reform,” Leavitt said, “and those of us who are in the court system understand that the court system has been entirely turned upside down because of COVID.”

In Salt Lake County, Gill said data shows that more 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 the bail changes kicked in. The percentage of people who bonded out on felony domestic violence cases has dropped 38%, while the percentage of those who bonded out on felony domestic violence cases within one week of booking dropped by 41%, according to data from the county.

(Christopher Cherrington | The Salt Lake Tribune)

And responding to the binder that Utah sheriffs say shows bail reform isn’t working, the prosecutors said an examination of those cases found some of them weren’t even relevant, such as the four that happened before the new system took effect. Overall, 80% of people in the 66 crimes included in the binder were compliant with their pretrial release conditions, the data showed. Nine of the offenders, or 13.8%, have committed additional crimes, and at 9%, a small portion have failed to appear in court when required.

Davis County Attorney Troy Rawlings said both sides of this issue are united in a desire to protect public safety. But he thinks the sheriffs have dug their heels in on a repeal and are more “invested in being right than getting it right.”

“I think that they followed bad data and they took a position already that they’re they’re not willing to back down on,” said Rawlings, a Republican. “And I think it’s unfortunate.”

In a prepared statement, Davis County Sheriff Kelly Sparks expressed appreciation for the work that went into HB206.

“That said, we recognize there are unintended consequences from the legislation that require a fix,” Sparks continued. “We look forward to collaborating with all of the stakeholders to improve bail and pretrial procedures statewide.”

In the final days of the legislative session, it’s unclear whether the bill to repeal bail reform, HB220, will garner the support it needs to gain final passage. The measure previously won support in the House with a 51-22 vote and was endorsed Tuesday by the Senate Government Operations Committee on a 4-3 vote. The Senate’s two top leaders — President Stuart Adams and Majority Leader Evan Vickers — supported the repeal bill.

Gill said he’s not sure what will happen to the proposal but said its likelihood of passing “is not without concern.”

“A lot of work gets done in the last week,” he noted. “And if we didn’t feel an existential threat of going backwards and losing on the gains that we have made, which would end up an unjust outcome, we wouldn’t be here.”

Senate President Stuart Adams told reporters Monday that while there’s a “desire to look at repeal,” he said he’s not sure what the collective feeling of lawmakers in the Senate is on the proposal.

“I know there’s not consensus,” he added. “So whether repeal is the answer until we get consensus, I don’t know. My understanding is those that are involved in the bail process have not been able to, at least from my understanding, come to a consensus or way forward.”

Sen. Derek Kitchen, D-Salt Lake City, said the Democrats are not supportive of reform efforts, which would wipe out the work of stakeholders from last year.

“We spent a lot of time and effort with all stakeholders last year,” he noted. “Repealing that effort would not lead us in a better direction. So while we acknowledge that the reform from last year requires some tuning up, let’s say, stepping back and repealing would not be the best step forward.”

- Tribune reporter Bethany Rodgers contributed to this report.