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State Courts Try To Change System They Say Keeps The Poor Behind Bars And Sets Wealthy Free

Photo of a bail bonds storefront
Whittney Evans

Richard Mauro has been a public defender for nearly three decades, representing people who can’t afford an attorney. So he knows, if you can’t make bail, it can really screw you over.

“They lose their jobs. They lose their housing. They may lose their relationships,” Mauro says. “And then they have a large incentive to plead guilty one, two, three months down the road while they’re remaining in jail, simply to get out of jail as a consequence of a plea bargain.”

They lose their jobs. They lose their housing. They may lose their relationships." Salt Lake City defense attorney Richard Mauro.

We’re not talking chronic felons, rapists or murderers. It’s people who have no criminal history or short rap sheets for non-violent offenses.

“Having that person remain in jail for a longer period of time, when objective criteria indicates that person is not a risk to the community and is likely to appear in court and is of course is presumed innocent, when those three things happen, more of those people should be eligible for release.”

Bail is supposed to keep people in jail who may be a danger to the community, and ensure defendants show up to court. Judges can hold someone without bail if they pose a serious threat. And they can release someone without bail as they see fit.

Third District Court Judge Todd Shaughnessy says it keeps him up at night.

“We don’t want to be the one who released someone who goes out and hurts somebody else,” Shaughnessy says. “Unfortunately right now, when we’re making these decisions, we’re given essentially no information about the likelihood of that happening.”

Now there’s a tool they can use to help them make that decision. It’s an automated report called the Public Safety Assessment, or PSA. It’s already used in dozens of major cities and states. Here’s how it works. You plug in a defendants criminal history, age and prior failures to appear. The software will calculate the likelihood someone is going to commit a new crime or skip a court date.

Public Safety Assessment Risk Factors and Formula by Judy Fahys on Scribd

A legislative audit this year showed that making decisions without this type of information puts public safety and taxpayer dollars at risk. Two years ago, as part of their effort to reform the criminal justice system, the Utah Legislature recommended the state use a tool like this.   

The problem is, there’s little data that shows how many people are stuck in Utah jails because they can’t make bail. Judge Shaughnessy’s convinced it’s a problem.

“I talk to my fellow judges,” he says. “I talk to people about this. And they will all be able to tell you, oh yeah, I know of an instance when this person was clearly held in jail. Didn’t need to be in jail, but was held in jail because they couldn’t pay money to bail out.”

The bail bond industry sees things differently.

Dyon Flannery is a bail enforcement agent. A bounty hunter. When people don’t appear in court, she tracks them down.

“There is just not poor people sitting in jail. It just doesn’t happen here,” Flannery says.

Credit Office of the Utah Legislative Auditor General
A 2017 Utah legislative audit called for the implementation of a Pretrial Risk Assessment like the one Utah judges are working to implement.

In fact, she says many bail bond agencies are willing to work with an inmate’s family and friends. Some even offer financing.  

She pulls up the Davis County Jail inmate roster on her phone and shows it to me.  “I just randomly pulled up 10 [jail inmates] to see who’s sitting in jail that has bail,” she says. “ I’ll tell you there’s a 99 percent chance in two or three hours they’ll be gone. But two people out of 10 even had bail. Everybody else was a probation violation, a court hold. Something else that’s holding them in jail. They don’t even have the option to bail out.”

Judges were supposed to start using the PSA tool this week. But Utah lawmakers told them to hold off. They’re worried that it’s not going to work. Rep. Paul Ray says if bail bond agents aren’t there to make sure people show up to court, it’s up to sheriffs to go find them. And they don’t have that kind of manpower.

“I mean on paper it’s easy to say if we can check these boxes, if they can make it through this algorithm they’re going to come back,” Ray says. “That isn’t the case. You get someone who’s strung out on opioids, you arrest them, they get put out on their own recognizance, they’re probably not going to show up to court.”

He’s also bothered that the courts are doing this, instead of the legislature.

“We’re making a public safety policy decision on who gets out,” Ray says. “And they don’t want the legislature to be involved in making that decision. And that’s wrong. That’s a legislative decision. It’s not a judicial decision.”

Throughout the country, both lawmakers and judges are trying to grapple with this issue.  

In Houston, Texas a federal judge struck down the county’s bail system for people charged with low-level crimes. And the Illinois Legislature passed a law this year that allows defendants to get a rehearing of their bail amount if they can’t come up with the money. New Jersey has all but eliminated cash bail from it’s pre-trial system.

But the new system isn’t foolproof. Bail bond industry leaders often point to a case in New Jersey this past spring. A man was booked on a serious gun charge and the judge, using the PSA to determine his risk and 

Credit (Graph: Elydah Joyce, 2016) /Prison Policy Initiative

decided to release him. Days later, he shot and killed a man.

Judge Todd Shaughnessy says there are no guarantees. We are dealing with human beings after all.

“Those things certainly happen, Shaughnessy says. “But those aberrational instances shouldn’t drive policy. We ought to drive policy and what we’re doing by sound scientific data and that’s what we’re trying to do.”

The bond industry says the courts just don’t understand the public service they’ll lose if more people are set free without some kind of insurance. And Utah’s business-friendly lawmakers are listening, so it’s unclear when or even if these changes will begin. 

Whittney Evans grew up southern Ohio and has worked in public radio since 2005. She has a communications degree from Morehead State University in Morehead, Kentucky, where she learned the ropes of reporting, producing and hosting. Whittney moved to Utah in 2009 where she became a reporter, producer and morning host at KCPW. Her reporting ranges from the hyper-local issues affecting Salt Lake City residents, to state-wide issues of national interest. Outside of work, she enjoys playing the guitar and getting to know the breathtaking landscape of the Mountain West.
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