Utah’s Hard-Won Bail Reforms Are In Jeopardy

Originally published in The Appeal on March 19, 2021.
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Utah is on the verge of either rolling back or reaffirming a bail reform law that passed in 2020 with an unusual amalgam of supporters. Lawmakers from both parties—alongside prosecutors, public defenders, and advocates—backed the reforms, which passed the GOP-controlled legislature last spring and curtailed the use of cash bail. But almost immediately after the bill took effect in October, some Republican lawmakers and sheriffs began criticizing the changes as a threat to public safety, and the legislature passed a bill to repeal the measures this month.

Now the repeal will either be signed or vetoed by Governor Spencer Cox, a Republican, who has indicated that he’s on the fence about what to do.

The outcome will have implications for Utah residents awaiting trial, where cash bail has long been the most widely used pretrial tool. Nationwide, advocates have faulted the cash bail system for the disproportionate pretrial incarceration of poor people, especially people of color, who often face further consequences like job loss as a result. 

State Representative Stephanie Pitcher, a Democrat, says she has pushed to reduce the use of cash bail in Utah out of frustration that people charged with crimes either remain in jail or go free based solely on whether they have means to pay. “This came from my own experiences in court and realizing it’s such a nonsensical system that we decide pretrial release based on wealth,” said Pitcher, who is a prosecutor.

At the start of 2020, Pitcher introduced the bail reform—House Bill 206—which required judges to set the “least restrictive” conditions to ensure a defendant comes to court. In effect, the bill transitioned Utah’s judiciary away from the bail schedule courts had long used, which assigned a specific dollar amount to every offense. Cash bail could still be used under HB 206, but judges would have more discretion and obligation to consider other factors. The bill gained traction in the legislature, which was and remains Republican-controlled l, and ultimately passed; it took effect Oct. 1.

Utah’s bail reform did not go as far as states like Illinois and New Jersey, which in recent years have sought to virtually end the use of cash bail. Pitcher did not clarify if she supported eliminating cash bail but told The Appeal: Political Report that she does not see that happening in Utah  “anytime soon” because of the influence of the bail bond lobby. Still, local activists have said that despite its limitations, the new law is having a positive effect. Founders of the Salt Lake Community Bail Fund said they were able to free far more people after HB 206 took effect because bail sums dropped from the “astronomically large” amounts that defendants were held on before. 

HB 206 wasn’t the first time cash bail came under scrutiny in Utah. In 2015, a group of prosecutors, judges, defense attorneys, sheriffs, bail bond agents and academics prepared a report for the Utah Judicial Council on pretrial release best practices. A Republican state senator introduced a bill similar to Pitcher’s in 2016, though it didn’t make it out of committee. There have also been several legislative audits of Utah’s pretrial system over the last few years. And Shima Baradaran Baughman, a criminal law professor at the University of Utah, has been urging bail reform in her state since 2010.  She said she made the case that “conservative states should rely on bail reform to save money” to the Utah Commission on Criminal and Juvenile Justice. “Less people in jail means less money spent on jail beds. Since Utah ha[d] a problem with jail beds … this was compelling,” Baughman said.

Sim Gill, a Democrat who is the district attorney of Salt Lake County, has spoken against repealing the new bail law and pointed out that Utah has a history of embracing criminal justice reforms, particularly when they encourage fiscal savings. In 2019, Utah became the second state to pass a bill that would automatically clear criminal records of people convicted of low-level crimes, and taxpayer savings was one benefit of the law that proponents touted. 

Troy Rawlings, the chief prosecutor for Davis County,  has also vocally opposed the repeal. Rawlings, a Republican, told the Political Report he grew interested in tackling cash bail about four years ago, when he started to learn ofcivil lawsuits in other states brought by individuals who argued they had been unconstitutionally detained because of their inability to pay for release. These judgments prompted conversations among people in Rawlings’s office about cash bail-related issues.

Despite the growing bipartisan support for bail reform, criticisms started pouring in when HB 206 took effect—not just from those who opposed the new law, but also from advocates who say that it left too much room for prosecutors and judges to continue locking people up. Ben Aldana, a public defender in Utah County, said he noticed judges began holding more people without bail, even for low-level offenses. Although Aldana doesn’t inherently oppose holding people without bail, he says everyone should be afforded a hearing to call witnesses before any decision like that is made. “When my clients were denied the right to bail I was told to go pound sand and prosecutors would later come to them with a plea agreement if they pled guilty,” he said. “I was and still am very upset about this; it flies in the face of a fair system.” 

Leaders with the Salt Lake Community Bail Fund, which launched in September, say that although the monetary amounts of the bail requests they received decreased significantly after HB 206 took effect, the law was not applied retroactively, and it still allowed judges to include a lot of challenging stipulations for defendants, like electronic monitoring and requirements to show up at police departments at unusual times. “Yes, we saw more lower bails, but we still see high bails sometimes in excess of $5,000,” Emily Lyver, a co-founder, told the Political Report. “It’s purely discretionary.”

Meanwhile, a vocal campaign against the reforms emerged, led by the Utah Sheriffs’ Association and House Majority Whip Mike Schultz, who introduced a bill to repeal HB 206 in January. Opponents argued that the reforms had failed and resulted in too many violent offenders going free, though they had no credible data to back up their assertions. Some of the actions they complained about, like judges issuing penny warrants to keep jail populations low, were actually driven by COVID-19 concerns. “Penny warrants are 100 percent COVID-related and not at all anything to do with House Bill 206,” an assistant state court administrator testified in January.

Although no state-level data is yet available, Gill said data from his county showed the reforms were working as intended, with more low-level offenders released without cash bail and more violent offenders detained. Gill, Rawlings, and David Leavitt, the Republican chief prosecutor for Utah County, represent the state’s three most populous counties; they called efforts to repeal HB 206 “bad faith.” The executive director and president of the Utah Sheriffs’ Association did not respond to multiple requests for comment.

One Republican state senator, Todd Weiler, sponsored a bill this winter to amend HB 206 rather than repeal it. He convened a working group of stakeholders to craft agreeable language. Aldana was involved and supported the “fix-it bill,” which among other things would have ensured bail hearings. “That resolved a lot of the issues I had had, because instead of just willy-nilly denying someone the right to bail, a judge would have to really think about it and say well if I deny this person bail, the defendant will now have the right to subpoena witnesses,” Aldana said. Pitcher and the ACLU of Utah also supported the fix-it bill, but instead Schultz’s repeal bill passed and is now awaiting the governor’s signature.

Rawlings suspects that proponents of full repeal are doing the bidding of the bail bond industry, which has stayed conspicuously quiet this year. “Everyone knows it,” he told the Political Report. “They’re propping up sheriffs as surrogates, and it will be very interesting to see the campaign contributions to legislators who voted in favor of repeal.”

Governor Cox has said he is “not crazy” about approving the bail reform repeal bill, and is interested in convening a special session to address the issue. His deadline to make a decision on whether to veto is Thursday.

Supporters of HB 206 say one problem with repealing the bill is that the courts have already spent a year updating their rules and procedures, and eliminating the statute now would cause confusion. “It’s like unscrambling an egg,” said Aldana. “You can’t do it and you’ll be left with a mess.”

Rawlings said he thinks it would be tough to get consensus in a special session for a new bail reform bill, though he believes the judiciary will continue to consider risk factors and ability to pay regardless of what the governor decides. “We’re hearing from judges that they think this is the right thing to do, too,” he said.

Activists with the Salt Lake Community Bail Fund opposed the repeal effort, but say if it succeeds, then they will make every effort to be at the table for the next bill. “In some ways it would be a unique opportunity for us to be invited to the idea table,” said Lexie Wilson. “We want reforms to help build towards eliminating cash bail and not adding other carceral obligations.”

Newly Elected Michigan Prosecutor Will Stop Seeking Cash Bail

Originally published in The Appeal on January 4, 2021.
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Eli Savit, the new chief prosecutor of Washtenaw County, Michigan (Ann Arbor), announced today that his office will no longer seek cash bail. His policy is the latest victory for advocates nationwide who are working to eliminate financial conditions for pretrial release. It comes on the heels of similar announcements in December by prosecutors in California and Virginia.

Savit, the county’s first new prosecutor in 28 years, ran on ending cash bail during his 2020 campaign. “One’s wealth must never play a role in their detention,” he told The Appeal: Political Report in August.

He is issuing a 20-page policy directive today that cites several reasons for opposing cash bail, including that debtors’ prisons are illegal in all 50 states and that cash bail stands at odds with the country’s legal principle of “presumption of innocence.” 

“We’re very excited about Eli’s no cash bail policy,” said Twyla Carter, national policy director at The Bail Project. “We’d love to see other elected and appointed officials follow suit, and ultimately what we want to see is the decriminalization of poverty, mental health and addiction.”

According to a state task force report released last year, people detained pretrial have comprised roughly half of Michigan’s jail population in recent decades, often because they couldn’t afford their bail. And this sparks great disparities in incarceration. Preliminary analysis by the ACLU of Michigan found that Black people in Washtenaw County were 8.55 times more likely than white people to be incarcerated because they couldn’t pay bail. 

These trends are not unique to Michigan. Nationwide Black and Latinx people are more likely to be incarcerated pretrial than whites charged with similar crimes, and nearly half a million legally innocent people sit in local jails every day, according to an analysis by the Prison Policy Initiative. 

Researchers have found even brief periods in jail can hurt job and housing prospects, negatively impact children, and increase the odds that a defendant will plead guilty

Prosecutors don’t set bail themselves, but their recommendations and motions weigh heavily on what judges do. Over the last few years, prosecutors elected on progressive platforms have reformed the use of cash bail, including Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston, especially for lower-level offenses. Studies have found that jurisdictions that have experimented with bail reform have not seen an increase in crime.

“We know from our almost 16,000 bailouts, including in Washtenaw County, that when a defendant’s financial needs are met, when they have rides, text message reminders, child care, they show up to court,” said Asia Johnson, a communications associate at the Bail Project.

But only in January 2020, when Chesa Boudin became the district attorney of San Francisco, did a prosecutor announce that they would no longer request cash bail under any circumstance. 

Others have since joined Boudin. Sarah George, the prosecutor of Vermont’s Chittenden County (Burlington), rolled out a similar policy in September, followed in early December by George Gascón, the newly elected DA of Los Angeles. A few weeks later, Steve Descano, the chief prosecutor of Virginia’s largest county (Fairfax County), announced that his office would also not request cash bail, formalizing a practice he established after taking office a year ago.

“Simply put, cash bail creates a two-tiered justice system—one for the rich and one for everyone else,” said Descano in his recent announcement. 

Still, criminal justice reform advocates are wary of some limits of these prosecutorial reforms and of the continued reliance on pretrial detention, including for factors tied to money.

In Washtenaw County, according to Savit’s directive, prosecutors “can and will” still seek unsecured and surety bonds, which require payment from a defendant or third party if they fail to show up in court or otherwise break the conditions of their release.

Michigan law requires that in some cases judges must impose a cash or surety bond, though Savit’s directive also enables prosecutors to seek secured bonds more broadly. He told the Political Report this would be “very rare.” Surety bonds require a third-party to show they could afford to pay a bond if a defendant breaks release conditions, which hinders the ability of defendants with impoverished families to gain release. In some cases, surety bonds can even require a defendant to provide upfront payment to secure a third party’s intervention, but Savit said he is steering staff away from for-profit commercial bond agents. “It is not appropriate to require a defendant to secure a surety from a for-profit commercial actor,” his directive notes.

“I don’t want anybody to be put in a position where they have to pay upfront money—to the court or a third party—to secure their release,” Savit said. “If surety bonds are being used by courts to require such an upfront payment, we’ll re-evaluate and adjust as needed.”

Phil Mayor, a senior staff attorney with the ACLU of Michigan, says the “knee-jerk reaction” shouldn’t be a threat of financial penalty later in the legal process either. “We need to continue to be worried about the poverty trap that our criminal legal system easily devolves into,” he said, noting that defendants sometimes miss court hearings for fear of losing their jobs, or failing to find child care or reliable transportation. 

Savit’s prosecutors can also choose to recommend the denial of pretrial release for some serious offenses, including murder, armed robbery, and repeat violent offenses. Advocates worry that asking prosecutors to decide who presents a safety risk before they have been afforded a trial poses problems, especially when those determinations are made with algorithmic tools that researchers say are faulty and racially biased. Savit, however, is avoiding the algorithmic tools, and told the Political Report he “consciously chose not to go down that route” because he “read the studies and knows those can often reinforce human and racial biases.” 

Washtenaw  prosecutors will still be permitted to request nonfinancial conditions for pretrial release like drug and alcohol testing, GPS tethers, and in serious instances, oversight by a “responsible” member of the community, though Savit will encourage his staff to articulate specific reasons for seeking such conditions. 

In many jurisdictions the cost of GPS tethers is borne by the defendant, which can either lead to new forms of debt or an inability to leave jail altogether. Savit told the Political Report that while he sees a tether as “far preferable” to forcing someone to sit in jail, he does worry about the costs of the devices charged to the defendant. 

“We need to put our heads together and work collaboratively, and some of this probably will take changes at the state level,” he said. Michigan’s legislature recently enacted some reforms spurred by the state task force on pretrial justice, but lawmakers have yet to tackle bail.

Mayor, who consulted on the new Washtenaw policy, told the Political Report that he had urged Savit to make any pretrial restrictions limited and rare. “I think his new written policy reflects that, but the proof is going to be in the implementation,” he said. “I have strong optimism that it is Eli’s intent to implement things in a way that’s designed for pretrial detention to be the dramatic exception and not the rule, but the test will be in the buy-in from line prosecutors and judges.”

There have been similar concerns in Fairfax, Virginia, where advocates note that an end to cash bail—while positive—will not inevitably lead to justice or even pretrial release.

“What’s been more prevalent in Fairfax is the over-conditioning of release—like requiring a probation officer, mandatory drug testing or mental health treatment,” said Bryan Kennedy, a public defender in the county. “The judges definitely over rely on it, and prosecutors ask for it more than they should.” Kennedy says Descano has also stayed fairly quiet when judges send people back to jail for missing court hearings due to poverty-related issues, and there have even been times when Descano appealed a circuit court’s decision to release somebody pretrial. (Descano told the Political Report that’s “not something that happens regularly.”)

In Virginia, unlike other states, there is also no constitutional right to bail, which means the list of eligible offenses for detention without bail includes everything from driving without a license to murder. Kennedy says he and his colleagues worry that, without addressing that on the state level, judges might just detain more people if cash bail is not an option. 

Descano has called on the state legislature to reform the pretrial system and end cash bail, as did the association of progressive Virginia prosecutors in a letter released today.

Michigan organizers say they will keep an eye on how things unfold in Washtenaw as well.

Trische’ Duckworth, an organizer of anti-police brutality protests in Washtenaw County and the executive director of Survivors Speak, told the Political Report that she’s thrilled about Savit’s new cash bail policy and that she didn’t have to “twist Eli’s arm” to take it on. “He came in with a vision,” she said. 

“But I tell him all the time, ‘I’m watching you,’” she added. “I say, ‘Don’t get your first protest.’”