Are Utah’s bail reform measures creating more problems than they were intended to fix?

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Composite image with background photo by TxKing/iStock/Getty Images Plus. Overlay justice photo by Utah 778//iStock/Getty Images Plus. Overlay handcuff photo by Twinsterphoto/iStock/Getty Images Plus, St. George News

ST. GEORGE — Compared with state prisons, county jails play a critical role and have a far greater impact on the criminal justice system, considering more than 32,000 people enter a county jail in Utah each year. However, law enforcement officials say the bail reform measures sweeping across the state intended to reduce inmate numbers have had the opposite effect, resulting in either a stark uptick in county jail populations in both Washington and Iron counties or high level offenders being released too soon.

The Justice Reinvestment Initiatives – more commonly known as JRI – included nearly a dozen provisions signed by Gov. Gary Herbert starting in 2015. One of the primary objectives behind the initiatives was to rein in the state’s growing prison population by diverting those suffering from addiction or mental health problems into treatment programs and facilities instead of putting them behind bars.

Bail reform was one of the justice reform initiatives passed in 2020 via legislation that requires judges to release people accused of low-level crimes using the least restrictive means, including court support monitoring and drug testing. These measures were designed to reduce jail populations by removing the primary criteria standing in the way of release – which is often access to funds to post bail.

The premise behind the initiative refers to the U.S. justice system’s overreliance on bail, which has essentially created a two-tiered justice system across the country: a system of the “haves” and the “have nots.”

The reality, however, may call into question the effectiveness of the policy changes and has led many to question whether the initiatives are working – a topic that continues to be a matter of intense debate.

A brief history on bail and bonds

The initial concept of bail during colonial times was similar England’s bond system, which stated that any arrestee eligible for pretrial release had to rely on friends and family to provide personal sureties, or a bond – essentially paying an agreed-upon amount to secure release. If that detainee failed to appear in court as promised, the bond was lost.

As it became more difficult for the accused to find anyone to post a surety bond, the courts shifted to the use of “secured” money bail, with the idea of providing a financial incentive to attend court hearings at a later date.

From there, a series of bail systems followed, but the most commonly used today is a surety bail bond, by which a defendant pays a fee – typically 10% of the bail amount to a bail agent who agrees to pay the full bail amount if the person fails to appear at a court hearing.

A reformed system that keeps some too long…and others not long enough

According to the Prison Policy Initiative, more than 610,000 people are incarcerated on any given day in county jails nationwide. Over the course of a year, 10.6 million people cycle in and out of jail, including those who are booked multiple times.

St. George News reached out to Washington County Sheriff Nate Brooksby on the topic of the bail reform measures. Citing the yearlong audit conducted by the Utah Office of the Legislative Auditor General, Brooksby said the data showed the measures have not done what they were designed to do.

He said that on one count, the bail reform measures have fallen short in reducing the number of low-level offenders being held in jail, which was one of the goals behind the initiatives.

Prior to 2020, a bail amount was assigned to the level of offense; for example, a third-degree felony was assigned a $5,000 bail, while a second-degree felony came with a $10,000 bail, and so on. The bail could then be posted, or a bond paid to a bail bondsman, and then the inmate could be released. There was also the option of calling a judge if there were any concerns regarding public safety, and they could ask for a no-bail hold.

After the bail initiative was passed, all bail amounts were removed, and instead, it was left up to a judge’s discretion as to whether the arrestee should be held on bail – and the amount that would be assigned – or whether they should be released on their own recognizance or to pretrial treatment services.

The evaluation process involves a review by a judge using the information contained in the probable cause statement, as well as a risk assessment tool designed to provide additional background information to guide them when deciding if a defendant should be released into the community or whether they should be held in jail.

The assessment uses algorithms that predict the likelihood a person will commit crime in the future based on patterns of how often people with similar characteristics were arrested for a violent crime in the past.

The assessment is a tool intended to standardize the decision-making process and provide more accurate evaluations, Brooksby said; however, a number of inmates arrested for nonviolent crimes who would likely have been released quickly prior to the reform measures are now left sitting in jail, sometimes for days, as they wait for a judge to review the details of the arrest and make a determination.

“So if you are an individual who can bail out, for example,” he said, “then you are left waiting for a judge to make a bail determination before you can be released.”

On the flip side, Brooksby said the evaluation tool isn’t infallible and could lead to some others being released when law enforcement officials believe they shouldn’t be.

As a safety net, officers are tasked with documenting additional information into the probable cause statement filed with an arrest, such as a request to hold the arrestee without bail or any concerns involving any potential risk to the public. That information is then reviewed by the judge to determine the arrestee’s bail or release conditions. If that documentation is lacking, custody decisions are made based on insufficient information, which can lead to detainees being released in error.

He said that while some arrestees with nonviolent charges who pose no risk to public safety remain in custody for days awaiting bail review, the jail is also seeing an even more troubling trend involving individuals booked on serious felony offenses that are released within hours of their arrest because the assessment tool deems them low risk.

Brooksby cited three troubling releases that took place within the last few weeks. In the first case, an individual who was booked in on two first-degree felony counts of rape spent less than 19 hours in jail before being released from custody.

The second arrestee was facing felony forcible sexual abuse charges and was released 14 hours after he was booked into jail, while the third suspect was arrested for first-degree felony rape and was released within 25 hours of the arrest.

“These are not just numbers – there are victims involved as well,” Brooksby said.

The impact of the measures have also been significant for corrections staff working at the Iron County Jail.

NewsIron County Sheriff’s Lt. Shalon Shaver, who serves as the jail commander, told St. George News corrections staff are seeing not only a rise in inmate numbers, but also an increase in the number of probationers and parolees that end up back in custody as well. She said this is due to the lack of additional funding that was promised when the measures were passed that was supposed to increase pretrial monitoring and supervision. The result is a shortfall in the monitoring of parolees and in pretrial supervision, and with both areas lacking, pretrial defendants and probationers are ending up back in jail.

“These individuals are just out in the community,” Shaver said, “so they are now flooding our jails because the programs that were promised don’t exist for them.”

A pattern that should’ve been evident Brooksby said the Utah Legislature, while well intentioned, had a significant amount of data available from several other states that had already passed a series of reform measures to see how those initiatives were performing and whether they were meeting the desired objectives.

The results other states were seeing, for the most part, he said, were problematic and clearly indicated the measures were not only falling short of the goals, but in many cases, resulted in inmate numbers and recidivism rates that were moving in the wrong direction. Bail reform measures have resulted in a rise in recidivism rates in other states across the board. This should have served as a warning, Brooksby said.

In New York, reforms enacted in 2019 abolished bail for many misdemeanors and nonviolent crimes in an effort to divert defendants from incarceration to pretrial monitoring to lower inmate numbers. Two months after the law went into effect, however, the New York Police Department released figures showing a spike in crime. In fact, during the first two months, more than 480 people arrested for felonies that would have previously required bail were rearrested, some more than once, and charged with nearly 850 new crimes.

In Colorado, bail reform initiatives designed to move away from the use of financially secured release in exchange for an increase in pretrial services in Jefferson County resulted in a 140% increase in the number of inmates jailed for more than a single day, as well as a 40% increase in the number of pretrial inmates being housed.

In 2017, Maryland passed bail reform measures to solve the problem of jail overcrowding under the premise the money bail system was unconstitutional and violated defendants’ equal protection and due process rights. The results showed that following the initiatives, the state saw a 31% increase in pretrial population numbers from March 2017 to March 2018.

Similar results were found in Spokane, Washington, where sweeping bail measures were enacted to reduce jail populations and to show that “pretrial services can be just as, if not, more effective than the bail industry,” according to a study from Lexington National.

However, the results showed that instead of reducing the jail population, there was a 10% increase following the changes, and the number of pretrial detainees rose by nearly 17%.

Additionally, instead of saving taxpayers money, the spike in inmate numbers cost Spokane residents an additional $5.4 million.

In St. Louis, Missouri, justice reform and bail measures not only increased the jail population by nearly 5%, but also increased the pretrial population by more than 21% – at a cost of nearly $1.6 million more for the taxpayer than before the measures took effect.

In Texas the results are even more striking. Since bail reform measures in El Paso passed in 2015, there has been a 200% increase in bail bond forfeitures that resulted when defendants failed to appear in court, culminating in a loss of more than $4 million owed to the county.

The data also revealed that 90% of the individuals released on bail made their court appearances, compared to half of the arrestees that were released on unsecured bonds


New Mexico governor’s warning to Utah

Perhaps most telling is the fact that one state’s governor specifically made a video that warned Utah about bail reform measures more than two years before bail reform measures were passed across the Beehive State.

Susana Martinez, acting Governor of New Mexico in 2018, prepares a video for Utah legislators depicting dismal outcome the justice reform measures have had on the state | Photo courtesy of the Office of the Governor, New Mexico, St. George News

In New Mexico, the reforms to reduce the jail population came at the expense of public safety, according to Susana Martinez, who was the acting governor of New Mexico in 2018. Martinez publicly came out against New Mexico’s bail reform effort, saying the state’s use of the pretrial risk assessment tool had “devastating results.”

She said New Mexico “was sold a false narrative by those advocating for bail reform,” which stated if the state eliminated financially secured bail in exchange for release, then New Mexico could effectively and efficiently manage its pretrial populations while ensuring court appearances and protecting the public.

“None of these promises were kept,” Martinez said in the statement.

The governor’s video included the following warning:

“I encourage those in Utah to be very skeptical of voices calling for misleading devices that would result in letting dangerous criminals back out on the street to terrorize communities.”

The federal system has not fared any better following bail reform measures that were passed in 1984. Nearly four decades later, more than 70% of defendants in the federal system are pretrial detainees with no opportunity for release unless a judge orders their release, which requires a hearing. That is a 300% increase in detention rates since the Bail Reform Act of 1984 was implemented.

Moreover, many who face criminal charges are detained before trial, nearly two-thirds, and the sole criteria for release is often access to funds to post bail, which places undue pressure on the accused to accept plea bargains even when they are innocent, since even a few days in jail can cause a major disruption in their lives.

Written by Cody Blowers

February 5, 2022

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