In 2019, the Utah Legislature limited judicial discretion in bail decisions — which determine whether a presumably innocent person is released pending trial. Passed with claims of preventing high, cash-only bail — thus making it difficult for people to be released — this bill flew through the Utah Legislature with minimal opposition.
But the bill could result in more low-income people staying in jail when accused of crimes. Legislators should rethink bail as a whole to stop this potential harm and help ensure our courts are not jailing innocent people unnecessarily due to overly restrictive bail conditions.
Utah judges work hard to uphold societal safety but they’re facing two major impediments; a lack of information during pretrial hearings, and limitations the Legislature recently placed on their decision-making authority. Both issues can be resolved with smart policy changes.
Information deficiency is a nationwide problem that many states — including Utah — are addressing with pretrial risk assessment tools. The tools use algorithms to score individual’s flight risk and risk of threat to community, based on factors including his or her history. Judges can use these scores to make better informed and individualized decisions about the terms of release for the accused.
Justice is better served with more knowledgeable judges. Pretrial risk assessment tools aren’t perfect, but far better than the previous system — judges knew little about the accused and relied heavily on standardized bail schedules, which recommend cash bail amounts for most offenses. But if individuals are low risk, why incarcerate them before their trial with a bail they can’t afford? A goal of the assessment tool is to ensure this doesn’t happen.
Now, Utah judges hands are tied in decision-making. In 2017, the Legislature passed a bill that requires judges to set the same amount of bail whether defendants pay cash or hire a bondsman. The legislative intent was to prevent judges from setting different amounts, barring courts from acting as bail bondsmen.
For example, Tony is charged with theft and the bail schedule recommends a monetary condition of bail, set at $5,000. Tony proves indigency, and the judge determines he is a low flight risk. The judge sets bondable bail at $5,000, allowing Tony to generally pay 10% to a bondsman to secure his release. Before the law changed, the judge could also allow Tony to pay the court a somewhat higher bail in cash, such as $750. Tony could choose to pay the court and recognizes that if he shows up to court — which he now has a great incentivize to do — he will get that $750 back at the end of the case. If he pays the bondsman instead, he would never see that money again as that is merely a fee he paid for their service.
Tony’s situation exemplifies a judge using discretion to help better a defendant’s financial situation. With the Utah courts’ implementation of the pretrial risk assessment tool, judges will have more information about individuals which they can use to help people who are in situations like Tony’s. However, they are no longer able to help. The 2017 change requires monetary bail amounts be equal, whether cash or bond. In 2019, the Legislature strengthened this law by barring judges from setting cash-only bail, except in certain cases.
Advocates of the 2017 and 2019 bills — including several bail bond business owners who testified in support — argued the objective is an equitable system that prevents judges from harming low-income people with high, cash-only bail. While true in some circumstances, there is no evidence that this was ever an issue. There is, however, a monetary interest for bail bond industries to pass these bills to secure more potential customers by restricting cash-based competition.
Legislators should reform the bail system to uphold the presumption of innocence by stopping overly restrictive bail conditions. They should restore judicial discretion while simultaneously supporting the courts’ efforts to provide judges with more information about accused persons through pretrial risk assessment tools. If the state finds that judges are abusing their discretion by setting high, cash-only bail, the better policy is to set ceilings on cash-only bail. The broad measures they instead passed only limits judge’s options, which will harm low-income people the most.
Molly Davis is a policy analyst at Libertas Institute.
