In a dutiful act of deference to the Legislature, Utah’s judiciary recently agreed to suspend implementation of a new rule that would enact policies to provide more information to judges making pretrial release decisions. Instead, the court will now delay implementation in order to provide information about the new rule to the Legislature.
Except it already has. For more than two years now. Yet under the guise of separation of powers, the Legislature has decided to browbeat the courts into halting the new program.
Indeed, separation of powers between the legislative and judicial branches of government is essential. But the court’s plan to implement the new rule does not encroach on the Legislature’s role.
Utah’s Constitution entrusts the court with its own administration. “The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state.” The new pretrial release requirements give judges more background information on each defendant in a criminal case, not just the new charges filed against them, so the court will have a better grasp of who needs to be held in custody and who poses little enough threat to the community that they can be released pending trial.
In an early October letter to the judiciary, Senate President Wayne Neiderhauser and House Speaker Greg Hughes claimed that the new pretrial release rule implicated policy questions, and therefore the court should wait until the Legislature formally authorizes any change.
Supreme Court Chief Justice Matthew B. Durrant, in a responding letter, reminded the Legislature that its own legislative auditor evaluated the need for pretrial release and risk assessment reforms. He noted, “The clear consensus of those without financial stake is that reliance on monetary conditions of release should be reduced, and that validated risk information should be provided to judges.”
Durrant also reminded the Legislature that its members were included on the committee that originally started studying this issue, as well as on a standing committee and the Utah Commission on Criminal and Juvenile Justice, which supports the changes.
Durrant also told Neiderhauser and Hughes that bail bond industry representatives have been spreading misinformation in an effort to preserve their own cash cow. In fact, judges in Salt Lake County have already been using enhanced pretrial information to make better pretrial custody decisions. It just is not true that under this new rule judges will no longer require bail.
It makes little sense for the Legislature, which often heralds its own efforts at criminal justice reform, to halt a program that aims to stop unnecessarily detaining people simply because they cannot afford bail.
Regardless, the court recognized that “the more productive route would be to proceed, if possible, with a consensus among all three branches.” We hope the “if possible” means that if the Legislature continues to stymie these reform efforts, the court will push ahead and do what’s right for Utah’s accused.