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Politics & Government
Representatives from Utah’s criminal justice system are back at the table to try to find bail reform policy they can all get on board with. The state Legislature largely rolled back a law earlier this year aimed at moving Utah away from its reliance on cash bail. It required judges to release people from jail before their trial using the least restrictive means, like ankle monitors, rehab or regular check-ins. This series looks at how cash bail used to work, how cost can be a barrier to refom, the role of monetary bail and separation of power between the Legislature and the judiciary.

Utah’s Bail Reform: Why The Judicial Branch Has More Power Than You Might Think

A photo of an officer arresting a young man.
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The repeal didn’t outlaw use of the language “least restrictive means” and the courts are allowed to write rules in order to protect defendants’ constitutional rights, according to Assistant State Court Administrator Michael Drechsel.

After the state Legislature largely rolled back a law aimed at moving Utah away from cash bail reform, Representatives from Utah’s criminal justice system are back at the table to try to find a police they can all agree with.

As people from both sides continue to craft compromise legislation, they’re trying to figure out what lawmakers actually have the authority to do and what should be left up to the courts.

The state Legislature largely rolled back a law earlier this year aimed at moving Utah away from its reliance on cash bail. It required judges to release people from jail before their trial using the least restrictive means appropriate to the case.

Even though the “least restrictive” requirement was taken out of state law, it still exists in the rulebook made by the court system that judges have to follow.

Michael Drechsel, the assistant state court administrator, said the repeal didn’t outlaw use of that language and the courts are allowed to write rules in order to protect defendants’ constitutional rights.

“The court rules aren't just looking at the statute and saying, ‘OK, what do we need to do to make the statute?’” he said. “We also have to be sensitive to the constitutional principles that underlie everything.”

Drechsel said they also didn’t want to change the rule because they’d likely have to change it again once the Legislature passes a different bail reform law.

Rep. Mike Schultz, R-Hooper, who sponsored the repeal bill, said he’s fine with the fact the courts didn’t change that rule.

“[Judges] were responding originally and taking a really aggressive approach to that least restrictive means language,” Schultz said. “Since then, they've seen the Legislature's reaction to some of the things and I think [the court system] realized that maybe some of the interpretations that some of the judges were doing were on the far extreme of that.”

Schultz said moving forward, lawmakers get to decide whether judges must apply the “least restrictive” means — or whatever other phrase they decide — to defendants.

But Drechsel said the courts have a constitutional duty to impose conditions that are not any stricter than necessary in order to ensure public safety and that the person will come to court.

This story is part of KUER’s series on bail reform.

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