About Bail and Pretrial Detention in Utah: A Focus on HB206

Imagine you have just been arrested and have been accused of committing a crime. Under the United States Constitution, you are considered innocent until proved guilty. However, it is still legal for you to be held in jail until the date of your plea hearing/arraignment. This is a court appearance where you enter your response to the charges brought against you as guilty or not guilty. The amount of time between your arrest and your hearing is known as pretrial detention.

The court system has a practice in place that will release individuals before their plea hearing on good faith that they will appear in court. When faith isn’t sufficient for the arraignment judge, the court will impose a fee on the individual to ensure their appearance — this is known as cash bail. This bail is then returned to the individual once their case is closed by the court.

The cash bail system is designed to work against people of limited means. Two people could commit the same crime, have the same risk level, be assigned the same bail amount by a judge, and one could be released days after arrest due to their financial standing alone, since they can afford their bail.

What happens to the other individual? In Utah, on average, this individual waits 154 days in pretrial detention — over five months. If you didn’t show up to work for 5 months, would you still have a job? If you didn’t pay rent for 5 months, would you still have a place to live? If you didn’t see your kids for 5 months, would you still have the same relationship with them? This person of limited means is poised to lose this and much more.

Representatives Stephanie Pitcher and Todd Weiler sponsored HB206 to address these ongoing cash bail and pretrial detention issues. The bill was passed by the Utah Legislature and went into effect on October 1, 2020. Under this bill, judges much now consider a defendant’s ability to pay before making a recommendation for the “least restrictive, reasonably available” bail requirements. This is not limited to cash bail and can also include protective orders, drug tests, ankle monitors, or other pretrial supervision orders.

The bill created a new “Ability to Pay Matrix” that judges are encouraged to consider before setting a cash bail amount. Defendants are asked about their annual income by the court and it is entered into record. This is used in conjunction with a Failure to Appear (FTA) risk assessment that should be completed for the defendant before their initial appearance at their plea hearing. The maximum bail amount recommended by the Ability to Pay Matrix is $5,000, but judges are not required to be held to the standards of this matrix and can set higher bail at their discretion. “We should be making our decisions based on the risk of the individual and not their ability to pay,” said Senator Daniel Thatcher, R-Salt Lake City. “Again, this bill does not release dangerous or violent [suspects] or those who are likely to flee.”

The judge can still detain without bail under this legislation. If this request is granted, a detention hearing will be held, which does not argue innocence or guilt, but rather argues whether an individual should be detained pretrial. A detention hearing may occur for cases involving:

• “Substantial evidence to support the charge”
• “Capital offenses,” “criminal homicide,”, or “offenses for which the term of imprisonment may include life”
• Probation or parole violations

In most places where they have been implemented, risk assessment tools have not, on their own, reduced the numbers of people jailed pretrial. Risk assessment tools reflect the racial and class disparities inherent to the criminal justice system. A risk assessment is not an empirical measure of one’s “risk” — it’s merely a count of an individual’s prior FTAs and criminal charges. And, at the end of the day, the judge still has the ultimate say on whether a person is detained in jail or is released on their own recognizance.

This bill is a step in the right direction but doesn’t fix the problems associated with cash bail. Even with relatively low bail amounts ($500 or less), 40% of people stay in pretrial detention for the full term while awaiting their plea hearing due to an inability to afford their bail. This problem has be exacerbated due to COVID-19, which not only places an individual’s health at risk, but also has led to Utah rescinding 6th amendment rights to a speedy trial for the duration of the pandemic. Currently, jury trials are not being held in the state. This will lead to an increase in pretrial detention times, with many inmates currently being held for over a year without a court appearance.

What could you accomplish in a year? Think about it. Think about how having a year connected with your community would change your life. Now think about how having a year of disconnection would change your life. And for what? Money? How is that an appropriate exchange?

In a prison system that’s built upon money, you need a monetary solution to make a statement about how the entire institution of cash bail is inherently broken. If there was a huge pot of money that everyone to whom bail is issued could access, then bail becomes powerless. This is the aim of the Salt Lake Community Bail Fund (SLCBF). Through donations from those in the community, money is raised to post bail for those who cannot afford it. This fund is revolving as bail is returned, so the fund is a sustainable solution and the money donated can change the lives of as many people as possible. HB206 does lower bail amounts, and while this allows the SLCBF to touch more people than ever before, it doesn’t end the unjust bail system.

If you would like to help, you can make a tax-deductible donation.

If you know of someone who could benefit from this fund you can make a bail request.

The Salt Lake Community Bail Fund aims to eliminate the harm caused by cash bail to Salt Lake communities by posting bail for people who cannot afford it. HB206 helps us achieve this goal by reducing the cost of bail, but it doesn’t lessen the amount of work needed to be done before we can dismantle the pretrial systems that cause lasting community harm.

Author Bio: Kati Chachere, Salt Lake City, is a local air quality scientist and activist. She obtained her M.S. in Atmospheric Science from the University of Utah.