Some prosecutors and defense attorneys who supported a major bail reform law in Utah say they plan to adhere to the reform efforts as much as possible when it is repealed later this year.
Current state law requires judges to release people accused of low-level crimes using the least restrictive means, like an ankle monitor or drug testing. Judges must consider the risk to public safety the defendant poses, as well as their likelihood of returning to court.
Salt Lake County District Attorney Sim Gill said his office plans to continue asking for pre-trial release based on that risk assessment, rather than cash bail.
“I am not going to be giving up on the gains that we made through operationalizing those reform efforts,” Gill said.
According to data released by Salt Lake County, the percentage of people accused of first degree felonies who were released within a week of their arrest dropped from 33% to 16% in the first three months after the bail reform law went into effect.
Gill said he expects those results to continue in Salt Lake County after the law is repealed, but he worries about defendants in counties that revert back to a cash bail system.
“There's going to be lots of poor people who are not violent offenders who will not be able to make cash bail,” he said, “who will have the collateral consequences of losing a job, losing their shelter, having a dire impact economically on their extended family members while still awaiting their adjudication of their guilt.”
The Davis County legal defender coordinator said his office plans to continue operating under the principles of the bail reform law even after it’s repealed. The difference is that judges won’t be required to follow those principles.
“Once the repeal takes effect, there will be [a] lack of guidance for judges,” said Todd Utzinger, Davis County’s legal defender coordinator. “Judges have been using [a pretrial risk assessment tool] for a long time and in Utah for a few years, particularly in Davis County, where we have pretrial services. So we're going to continue to rely on that. ”
The Utah Sheriffs’ Association, however, said the repeal will be good for public safety. The association has not presented statewide data on the effect of bail reform. Instead, it listed several cases where dangerous offenders were let out of jail earlier than the law enforcement group said they should have been. But many of those cases took place before the law went into effect, or there is dispute about whether the law was the driving force in the release.
“It wasn’t a month [in] when we started seeing judges release people who should have still been in jail because they were a public safety risk and a risk to the victims,” said Cache County Sheriff Chad Jensen, who also serves as the president of the association. “That was very immediate that we saw those things happening.”
When Gov. Spencer Cox signed the repeal bill into law, he promised to call the Legislature into a special session to come up with a bail reform law that all stakeholders could get on board with. Jensen, along with several other stakeholders, has committed to be a part of a working group leading up to that special session. He said he wants the state to reform the bail system, but keep cash bail as a part of it.
“I do like the bail system to some respect because it holds people to the system more than anything,” Jensen said. “Depending on the crimes you commit and what your criminal history is and what threat you are to the public, I think that should absolutely be taken into consideration when a judge fixes bail or any other way to get out of jail.”
Utah County Attorney David Leavitt said the original bail reform law was not perfect, but the state should have tried to fix it instead of repealing it. A bill aimed at changing the existing law failed in the Legislature earlier this year.
“This is something that will take year after year after year to fix, and anyone that thinks that the special session will somehow come with a magic cure all is also naive,” Leavitt said. “Really, what the special session is going to do is put us back in the position where we were with [H.B.] 206 [the original bail reform law], except we have wasted lots of human capital and affected lots of lives.”
The repeal goes into effect on May 5. Cox has not yet set a date for a special session to address the issue.
