Utahns charged with crimes are about to face “super unpredictable” decisions about whether they can be released or must wait in jail for their case to be heard, some prosecutors and defense attorneys warn, after state lawmakers reversed recent reforms.

Taking away the freedom of someone still presumed innocent can compromise his or her ability to keep a job, hold down housing and care for family members — some of the concerns at the heart of Rep. Stephanie Pitcher’s successful push to change Utah’s bail system in 2020.

Her bill, HB206, shifted Utah away from asking defendants to pay set dollar amounts based on their charges to asking judges to assess the risk they pose, including the safety of witnesses, victims and the public.

But this year, after sheriffs and some defense attorneys pushed back against HB206′s reforms, lawmakers erased new language that had instructed judges to release lower-risk defendants with conditions that were the “least restrictive reasonably available.”

That and other reversals took effect this month, and now, Utah County Attorney David Leavitt expects to see uncertainty among judges around which defendants should stay in lockup before trial and which ones should be able to stay free.

“There’s huge amounts of confusion,” Leavitt said. “And when there’s confusion over a topic as important like this, there will be people that get hurt. Either because dangerous people that shouldn’t get out will get out, or because non-dangerous people that should be out aren’t out.”

He and Pitcher, who is also a full-time prosecutor, acknowledge the state’s court rules preserve the philosophy of the bail reform package passed in 2020, such as the principle that judges generally begin with the presumption that a person should be released.

Still, it will be up to individual judges and attorneys to make sense of the repeal law and the court rules, meaning that the interpretations could vary widely across the state, Leavitt and Pitcher say.

“That’s probably my biggest concern with the lack of uniformity between court rule and statute,” Pitcher, D-Salt Lake City, said. “An individual’s access to justice shouldn’t be different based on the jurisdiction where they’re being prosecuted or where the case is filed.”

Why does bail reform matter?

In Utah and elsewhere across the nation, the criminal justice system has historically relied on cash bail to determine which defendants are released or remain free before trial. That means relatively low-risk defendants can sit behind bars for weeks or months awaiting trial because they’re poor, while rich people can simply post bail and walk free.

Critics of that model, including Pitcher, Leavitt and Salt Lake County District Attorney Sim Gill, contend that it perpetuates systemic racial and socioeconomic inequities and does little to protect the community.

Steven Burton, executive director of the Utah Association of Criminal Defense Lawyers, notes that the state Constitution gives defendants the right to bail in most cases and argues that these monetary guarantees do have some role. If a defendant’s relatives have put their house on the line, for example, they have an incentive to make sure the person shows up in court, he said.

“As defense attorneys, we see ourselves as defenders of the Constitution and constitutional rights,” he said. “So we obviously want to preserve someone’s right to bail even if they’ve been accused of serious crimes.”

But he agrees that something is amiss with a system in which many people have already served their sentences by the time of their conviction. According to the National Association of Counties, pretrial inmates make up two-thirds of the county jail populations nationwide — a pattern that Leavitt says runs counter to the principle of presuming someone innocent until proven guilty.

Pitcher also says there are constitutional problems with Utah’s former practice of assigning dollar amounts to different crimes. During the Obama administration, the U.S. Department of Justice asserted that these so-called fixed bail schedules violate the 14th Amendment by discriminating against defendants who are poor.

“The courts are just as aware as anybody about the developing case law in other states,” Pitcher said. “And the writing is on the wall in terms of what was going to happen if the usage of our traditional fine and bail schedule were ever challenged in court.”

Why did Utah lawmakers reverse the bail reforms?

Pitcher in 2020 managed to build consensus around her reforms. Quickly after their passage, though, support for the new law began softening, with House Majority Whip Mike Schultz saying that the implementation of HB206 set off a “nuclear bomb” inside the coalition that had united around the measure just a few months earlier.

Sheriffs across the state waged war on the new law, often by presenting misleading anecdotes that blamed bail reform for the release of dangerous defendants. In many cases, the stories had nothing to do with HB206.

But the sheriffs weren’t alone in disliking the changes.

Burton said defense attorneys were divided on HB206, seemingly because of discrepancies in the way judges across the state were interpreting it. Attorneys in Salt Lake County often approved of the reforms, while defense lawyers in rural counties felt that judges were holding more of their clients in jail without the possibility of release, he said.

“It pushed everything to the extremes,” he said of the reform bill.

On the other hand, public defenders and prosecutors in the state’s largest counties stood behind HB206, producing data that suggested more violent offenders in Salt Lake County were being incarcerated pretrial after the bill kicked in.

Still, Schultz, R-Hooper, this year led a successful effort to repeal many core provisions in Pitcher’s bill. While he said he supports the overarching goal of reforming the bail system, he asserted that officials and members of the state’s criminal justice system needed to start over from scratch.

What happens next?

In some cases, nothing actually changes.

“I am not going back to a cash bail model like it used to be,” Gill said, citing his county’s data that HB206 was in fact working to keep dangerous individuals off the streets and low-risk defendants out of jail.

His prosecutors will continue to ask judges to hold defendants without bail if, for instance, they’re charged with capital murder or if they’re charged with a felony and believed to be dangerous to the community, he said.

“If a person is a risk, you don’t have enough money in the world,” Gill said. “I want you to be held. Period.”

Similarly, Leavitt said his prosecutors will stick with many bail reform practices — which are “certainly not prohibited” by the repeal bill, even if they’re no longer spelled out in the law.

Utah courts have no active plan to alter their rules in light of the reversed reforms. In fact, Michael Drechsel, assistant court administrator, argued that the repeal bill also “harmonizes with existing court rules,” pointing out that the rule that urged judges to order the least restrictive reasonably available conditions predated HB206.

And the rule to consider a person’s ability to pay came in response to evolving caselaw in courts around the nation, he added.

“The courts are fully participating with the legislature and other criminal justice stakeholders to continue the conversation about pretrial reform in Utah,” Drechsel said in a statement.

Schultz has said he’s committed to overhauling the old cash bail system, which he believes disenfranchises lower-income Utahns, and he’s moving forward with that effort by bringing together a group to talk about next steps. Pitcher, who’s part of these discussions, said it’s too early to tell when a new proposal might come together, but said Schultz has assembled a good cross-section of representatives from across the legal system.

However, Leavitt and Burton agree that in the meantime, many in the state’s criminal justice system are confused — and that judges in different parts of the state could have very different opinions about how pretrial release should work.

“I really think it’s going to give the judges a lot of discretion about what they want to do in their individual courtrooms,” Burton said of the current legal framework. “It’s super unpredictable.”