Jail bail reform provisions that became law in October 2020, only to be scuttled by the Utah Legislature a few months later, are back under discussion by a group tasked with re-examining the controversial issues.

House Bill 206, passed by lawmakers in 2020, moved the courts away from a primary reliance on a cash bail schedule and introduced greater weighing of suspects’ risk factors.

As Rep. Stephanie Pitcher, one of the key sponsors of HB 206, put in in an interview this week, the goal was to focus detention decisions on “potential risk and not how much money someone has.”

But heavy lobbying during the 2021 legislative session by forces including the Utah Sheriffs’ Association and the bail bond industry helped push lawmakers into an abrupt about face. They repealed HB 206, the leaders of the effort citing instances of some dangerous suspects being released rather than kept in jail.

Now, a workgroup consisting of prosecutors, defense attorneys, law enforcement, victims’ advocates, the bail industry and others is working on a draft bill to address some of the sticking points illuminated by the reform and the repeal.

HB 206 backers said greater focus on detention decisions based on risk assessment moves the state away from a constitutionally fraught reliance on cash bail. The 2021 repeal advocates said, however, that public safety was harmed. They cited a few cases where suspects were released and committed more violent crimes.

But after the repeal, the system “is kind of in limbo” because the court system had adopted many of the HB 206 provisions in its operating rules, Pitcher said.

“It wasn’t a clean repeal,” Pitcher said, because the mixture of the sudden repeal and the still-fresh rule changes in the courts have led to inconsistent practices in different judicial districts.

“It’s a mess,” she said. “The biggest problem is that there’s not enough predictability in the pretrial use of detention. Similar situations may be treated differently. We don’t want that. That’s not justice.”

HB 206 called for a presumption of release for most suspects but a rebuttable presumption of detention for first-degree felony arrestees.

Pitcher, D-Salt Lake City, who works as a deputy Davis County attorney, applauded how Rep. Mike Schultz, R-Roy — sponsor of the repeal bill — has put together the workgroup that is working on new legislation. “I’m optimistic,” Pitcher said. “What we end up with is still to be seen.”

One product of the negotiations since the repeal bill passed in March was House Bill 1006, approved by lawmakers in a special session in May. It allows sheriffs the discretion to release certain non-violent inmates either on their own recognizance or with a promise to appear in court.

During a legislative interim committee meeting in June, two county prosecutors pointed out that the repeal bill not only nullified the presumption of release — it also junked the presumption of detention for first-degree felony suspects.

Kane County Attorney Robert Van Dyke, representing the Statewide Association of Prosecutors, told lawmakers, “We like this shift in looking at the specific risks of individuals instead of pretrial bail amounts.”

Davis County Attorney Troy Rawlings told the committee that he and his counterparts in Salt Lake and Utah counties “loved” HB 206 because it allowed them to file motions arguing for pretrial detention.

Before, he said, “If you go straight to the bail schedule, if you have someone who’s dangerous and they have the means to pay, they’re out before we can file a motion to detain or do anything about it.”

He said the three attorneys share guiding principles of defendants’ constitutional presumption of innocence, the constitutional doctrines of equal protection and due process, “then balance in the public safety factors that you have to consider.”

Reed Richards, a deputy Weber County attorney representing the State Council on Victims of Crime, said bail laws should ensure victims’ constitutional right to be free of harassment or abuse during the pretrial process. If a suspect can be shown to be a clear threat to a victim or the community, judges should have the authority to keep the accused behind bars, Richards said.

Utah Association of Professional Bondsmen president Wayne Carlos said his industry feared HB 206 “would create bail elimination and not true bail reform,” and “our concerns were realized.” He said bonds written outside of Salt Lake County declined by 90% after HB 206 took effect. He claimed the bill restricted judges to “release everyone or hold everyone,” which Rawlings said was inaccurate.

Marc Ebel of Aladdin Bails Bonds said bail schedules “are constitutional as long as you review them” frequently. He said the use of bail between the time of jail booking and the first court appearance “is an important release valve for the system.” He said bail “is not an arbitrary number meant to punish poor people” but rather a tool to ensure that suspects bailed out will make their court appearances.

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