Cache County Prosecutors and local law enforcement are seeking for revisions to newly instituted, potentially unconstitutional bail guidelines they say could endanger the public.
The guidelines, which went into effect on Oct. 1, are the result of House Bill 206. The law provides to defendants eligible for pretrial release “the least restrictive reasonably available conditions” to ensure court appearances and public safety.
Cache County Attorney James Swink said judicial interpretations of the legislation vary; some judges are requiring a “motion for detention” in order to hold defendants in jail, while other judges are detaining circumstantially.
“It’s caused a little consternation around the state,” Swink said. “Judges are interpreting it differently from place to place, from courtroom to courtroom.”
Swink said a defendant must have “many violent felony convictions” to be held under the new guidelines, otherwise they are released on their own recognizance.
“It really defaults to ‘let everyone out,’” Swink said. “The concern that public attorneys have, states’ attorneys, is that it is releasing people who are dangerous.”
Additionally, Swink said the bill may be unconstitutional. Utah’s constitution states if there is substantial evidence for capital charge or if one is charged with a felony while on probation, parole or awaiting trial for a prior felony charge, they are not entitled to bail.
“This provision is saying, ‘Hey, you’ve got to go through and find substantial evidence to support charges, but then, if there are reasonable measures to release someone, you could do that,’” Swink said. “That’s in opposition to the Utah State Constitution.”
The Cache County Sheriff’s Office has similar concerns of public safety and judicial confusion regarding the bill but has additional disquiet with the lack of ability to enforce the conditions of release.
According to Lt. Doyle Peck, for example, if a defendant is ordered to be placed on an ankle monitor and refuses to do so, or violates the terms of the ankle monitor, probation services have “no teeth” to enforce the court’s order.
“We have no ability to enforce any of the conditions that are ordered by the judge,” Peck said. “Nowhere in House Bill 206 does it give us, or anyone else, the authority to go do something if a person violates their conditions.”
Peck said this is of particular importance regarding violent misdemeanor cases where the defendant may be released and has the potential to reoffend. Peck said while many defendants with numerous violations receive “no consequence at all,” several haven’t even checked in with probation services despite the court’s order.
Swink said the only mechanism for enforcement is in front of the judge after the court has been notified of the alleged violation.
“They don’t arrest them immediately — they can’t,” Swink said. “It’s a little slower process, and I think some people are frustrated with that.”
Peck said there are positive aspects to the bill. Specifically, the 21 conditions of release included the commencement of an education program, required employment and the forfeiture of firearms.
“That is a huge, huge deal because now you’re dealing with the Second Amendment,” Peck said. “In some cases, though, it could be a very beneficial thing.”
For Peck the solution, save a massive overhaul of the bill, is clear — “teeth.”
“If nothing else, give Probation the ability to enforce these pretrial orders so that we can help keep people safe,” Peck said. “Law enforcement is not trying to be against letting people out of jail if they can be out of jail. We’re simply saying, if you want us to watch these people that you’re letting out, you’ve got to give us the ability to do something.”
House Bill 206 passed on March 11 during the Utah State Legislature’s general session. Bill sponsor Sen. Todd Weiler, R-Woods Cross, said during the session the former bail schedule only took into consideration the charged offenses and not the defendant’s individual circumstances.
With over half of inmates statewide being pretrial detainees and not convicted of actual crimes, Weiler said, those without money are left to sit in jail longer than their well-to-do counterparts.
“House Bill 206 preserves monetary bail as a condition of release, but also expands the tools available to judges to adequately address an individual’s public safety risk,” Weiler said. “What this bill does is provide that judges should make pretrial release determinations using the least restrictive, reasonably available conditions.”
Though there are many instances where an own-recognizance release is appropriate, Swink said, if there are crimes involving victims or serious property damage, the judge should have the discretion to make decisions on release. But for Swink, the bill does not provide that discretion.
“I don’t know that it empowers judges with any more additional tools,” Swink said. “Judges had actually, I think, more discretion before House Bill 206.”
Swink said setting the new legislation in line with the constitution — which denies bail for certain crimes and circumstances — and addressing the own-recognizance-default would not favor the wealthy being held in jail.
“This is saying, ‘It doesn’t matter who you are or how much money you have — you are not entitled to bail,’” Swink said.
For Swink, the hope is that discretion will be given back to judges and the growing pains of new legislation will eventually soothe. He said his office is working with the Utah Attorney General’s Office and others in regards to clarifying the language in the bill.
“There’s still some uncertainty,” Swink said. “We hope to clarify and clean some of that up. I think over time things will settle down, and I think the legislature will be amenable to fixing some of the problems.”