No one was happy with the level of guesswork involved in Utah judges’ decisions on whether to release, jail or grant bail to criminal defendants.
For instance, even with a high bail amount set, a well-off felony suspect often could buy his way out of custody, free to commit more crimes.
On the other end of the spectrum, a low-income shoplifting suspect might spend two months in jail awaiting resolution of a $2 theft case because she couldn’t afford a $500 bail bond.
But state officials say they’ve come up with a new pretrial risk analysis tool, called the Public Safety Assessment, that will help judges make more broadly informed decisions on bail.
It means courts will be better able to control the risks to public safety posed by dangerous suspects during the pretrial phase. Meantime, more low-risk people will be released pending trial with a judge having higher confidence a suspect will appear for his court dates.
Jail populations will decline and the state and counties will spend comparatively less money on managing pretrial defendants, officials say.
That report concluded also that “screening for low-risk defendants and keeping them out of jail allows them to contribute to the tax base rather than be housed at taxpayer expense.”
In common practice, Utah judges have based most bail decisions on an often brief probable cause statement filed by an arresting police officer, with the judge adhering to a standard bail schedule depending on the level of offense.
But in a 2015 Utah Judicial Council study, 60 percent of judges surveyed said they did not have enough information about defendants before trial. Little reliable information about a defendant’s risk of flight or danger to the community was provided to judges, the report said.
That led to the adoption of the evidence-based risk assessment program, which the courts began using in May this year.
Now, judges get a report on a suspect that also contains information from state and federal criminal identification databases, plus court records from Utah and other states. Factors such as prior violence and failures to appear in court are covered.
“It’s a huge step forward,” said Josh Baron, a criminal defense attorney. “There is a change in focus and approach, and it is exactly what we need.”
The compiled data is used to generate a score on a six-point scale gauging a suspect’s threat to the community and likelihood of showing up in court.
“It builds a clearer picture of the defendant,” said Geoff Fattah, spokesman for the Utah Administrative Office of the Courts.
It improves the chance that non-violent defendants can be released without bail because judges know the person is at low risk of skipping a court date.
That’s good news for jail crowding, because a Texas Law Review study quoted by the Judicial Council determined that about 25 percent of pretrial detainees are low risk to the community and could be safely released.
BREAKING UP THE ASSEMBLY LINE
Baron said half of his clients are Spanish speakers, something that only adds to the likelihood of no flexibility in the handling of their cases individually.
In most parts of Utah, many such suspects are treated based on the standard bail schedule, with little deviation by judges.
“In my opinion, pretrial incarceration of nonviolent criminal defendants is a waste of money, time and energy,” Baron said. “It is bad.”
But with evidence-based assessment, judges now can better tailor pretrial releases. While some people can be let go on their own recognizance, others can be subjected to levels of pretrial monitoring, such as periodic check-ins, ankle monitors or drug testing.
Under the new Utah system, judges retain discretion in bail decisions. It also reflects the importance of the state constitutional mandate that says a criminal suspect must be considered for bail.
“I am overjoyed about it,” Baron said. “It’s going to be a real step up.”
The Judicial Council report said an estimated two-thirds of jail inmates nationwide were those awaiting trial.
PRETRIAL DETAINEES WHO DIE IN JAIL
Of eight people who died in the Davis and Weber county jails in 2016, six were pretrial detainees.
They all died after a few days in jail — one by suicide, another in a fall, two in substance abuse withdrawal and the other of heart failure possibly due to the deprivation of a prescription medication.
Family members of at least two of those people said they weren’t able to raise bail.
“A lot of people don’t realize that just being charged with a crime can derail your life, and cause some of the problems that cause some to think about suicide,” Baron said.
Stuck in jail, people lose jobs and undergo family stresses.
“It is super, super destructive,” Baron said. “There is a debt to be paid, in jail or not, but all they have been is accused of a crime, and maybe they are not even guilty.”
He said jailings on minor charges sometimes have the opposite effect intended.
“The effect we want is people to learn from their mistakes, and that we have a safe and stable community,” Baron said. “But when bad stuff happens, the kids don’t have dad, they don’t get food, and there is even more instability than the original crime.”
A 2017 National Center for State Courts report said the current generation of bail reform, including Utah’s, seeks to “craft bail provisions that allow for purposeful release and detention unobstructed by outside forces, such as money.”
Basing pretrial release decisions on assessed risk mitigates undesirable consequences, according to the Judicial Council’s study. The study showed that even short amounts of time in jail correlated to lower court attendance and new criminal activity by suspects because of lost jobs and housing.
Jail data provided by Utah County shows the average length of stay for pretrial detainees is 35 days, including those who are released on bail, the Judicial Council said.
Those not released on bail typically spend “... a minimum of 60 days ... even with an almost immediate plea resolution,” according to the report.
In Davis County, those with misdemeanor charges spend an average 22 to 27 days in jail and those with felony charges spend between 50 and 77 days, the Judicial Council said.
Tad Draper, an attorney pressing a wrongful-death suit against Davis County, applauded the advent of better bail practices and said problems behind bars are the best evidence of their value.
“If I were arrested, I would want every chance on the planet to get out of going to jail, to have any shot not to have to be at the whim and mercy of inept captors,” Draper said. “It’s a tough, dangerous place to be inherently, with the crowd in there and the people who are in charge.”
Draper represents Cynthia Stella, the mother of Heather Miller, 28, who died after suffering a ruptured spleen in a fall from her cell bunk on Dec. 21, 2016.
Miller was booked on a misdemeanor drug charge and died less than two days later. Jail personnel said in investigative documents they assumed Miller was withdrawing from drugs. Stella’s suit accuses the jail of not adequately checking her for injury after the fall and then not monitoring her condition as she underwent catastrophic internal bleeding.
RISK PREDICTION SCORES
The Public Safety Assessment, or PSA, generates two risk prediction scores — one for failure to appear in court and another for the potential for committing a new crime. The assessment also includes a "violence flag," indicating whether the defendant poses an elevated risk of committing a new violent crime if released.
The PSA was created by the Laura and John Arnold Foundation.
“The current criminal charge has become a proxy for public safety risk, and money has become the primary means of securing release independent of risk,” says a court system document explaining the need for the program.
“Those who can afford to post bail are able to secure release from jail, but those who cannot must remain locked up,” it says. “High-risk defendants who pose a significant public safety risk are able to post bail and go on to commit other crimes, while low-level, nonviolent defendants, who are unlikely to commit a new crime, are kept behind bars. This disparity does not benefit public safety. Providing judges with more information can only result in better, more informed decisions.”
Fattah said some county sheriffs were alarmed by the new program during its formation, but he said objections were resolved after discussions with the courts office.
“The only group unhappy is the bail bonds industry, which is concerned this is going to drive them out of business,” Fattah said. “But we haven’t seen any evidence to substantiate that.”
Marshall Thompson, Utah Sentencing Commission director, called the evidence-based assessment “a really important key to improving the way people are treated in our criminal justice system.”
2018 UTAH UNIFORM BAIL SCHEDULE
First degree, $20,000-$25,000
Second degree, $10,000
Third degree, $5,000
Class A, $1,950
Class B, $680
Class C, $340
Infractions, $100 *
* On an infraction, a defendant cannot be held in jail in lieu of posting bail.
Source: Utah Administrative Office of the Courts