Utah makes another attempt at reforming cash bail

The bill under consideration would instruct the courts to consider a person’s risk to the public and ability to pay.

(Francisco Kjolseth | Tribune file photo) Salt Lake County Jail on Friday, March 20, 2020.

Utah lawmakers are taking another crack at moving the state away from a cash bail-based system that has freed or released people based on their wealth rather than the severity of their crimes.

Officials plan on doing that by instructing magistrates and judges to focus on a person’s risk level when setting the conditions of his or her release from jail before trial. And while the courts can still impose bail in these situations, the proposal says they should adjust the amounts based on the person’s financial status and ability to pay.

This plan that’s coming before state lawmakers in this week’s special session is the result of months of negotiation, and it’s something defense attorneys, bail bondsmen and sheriffs all say they can get behind.

“Is it perfect? No,” Steve Burton, executive director of the Utah Association of Criminal Defense Lawyers, said during a Tuesday legislative committee hearing. “But is it something we feel like is progressive and helps create a more fair system than we had before? Yes.”

The legislation, sponsored by Rep. Stephanie Pitcher, lays out a long list of stipulations that the courts could impose when releasing a defendant, everything from requiring a person to hold down a job to making them wear an ankle monitor. But any release condition should serve several specific goals: making sure the defendant shows up in court for hearings; protecting victims, witnesses and the public, and preventing the person from trying to tamper with the criminal case.

The bill would also launch a three-year pilot program to audit the financial information of defendants who say they can’t afford to pay for their own legal counsel and need a free, court-appointed attorney. Under the proposed program, these audits could require defendants to hand over financial documentation and other proof that they qualify for these legal services.

If the review finds the defendant does not qualify as indigent, the person would have to refund the cost of the court-appointed attorney who represented him or her, according to the bill.

The pilot program would run in Cache, Davis, Duchesne and San Juan counties.

Utah’s pretrial release system has been in a state of flux since 2020, when Pitcher successfully passed reforms that did away with the previous bail-centric model.

Pitcher, a Salt Lake City Democrat whose full-time job is as a prosecutor, brought forward her reforms amid a national reckoning over the cash bail system. Critics of the model say it makes no sense that 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.

Early last month, an attorney filed a lawsuit challenging this cash bail system on behalf of three clients who were arrested on relatively minor crimes and couldn’t afford to pay their way out of jail.

While Pitcher’s bill from 2020 initially enjoyed broad-based support, there were signs of trouble just a few months after the proposal’s passage. Sheriffs and some state lawmakers swiftly began complaining that it had failed and was putting public safety at risk — and tried to back up these claims with alarming anecdotes about dangerous individuals who had been allowed to walk free.

Though many of those stories were shown to be misleading or unrelated to the nascent pretrial release model, the state Legislature earlier this year voted to roll back major pieces of the 2020 legislation and convene a work group to come up with a new reform proposal.

Since then, state lawmakers, attorneys, public safety representatives and others have been meeting to find a way forward. The bill, HB2003, is the outgrowth of those talks and is expected to come to a final vote during this week’s special session.