The following article was published in August 2019 Utah Justice Coalition newsletter
The United States has created a debtor’s prison among the nation’s indigent, it is this nation’s poor that goes to jail. You are getting the justice you can afford in America. The Utah legislation has made some changes to the bail system in the last few years with the intention to improve the system. The most recent change was House Bill 428 in the 2019 general legislative session. The bill was sponsored by Rep. Karianne Lisonbee in the House and Curtis Bramble in the Senate. The bill passes through the Utah house and senate and was signed into law by Governor Gary Herbert March 27, 2019. The bill has a delayed activity date and will not come into effect until October 1, 2019.
In the Utah criminal justice system, when a person is accused of committing a crime they are taken to jail while they await their trial date. The judge can set a bond dollar figure in which the accused would need to pay in order to wait for the trial date outside the jail. The 2019 law change states that judges no longer have discretion with the dollar figure they set and must follow what the formula recommends. Unfortunately, we don’t know
how the formula is derived and there is a lack of transparency of how the actual formula works.
In order to understand the effects of the most
recent changes to bail bond law, we need to first understand what the law had been previously. Before the changes were made if a person committed a crime that required them to wait in jail for the trial, the judge in the case would set a bond amount. Many bail bond fine amounts are large enough most people are unable to come up with the funds on their own thus requiring the use of bail bondsmen services. The bail bond fine schedule can be viewed by clicking here. Bail bondsmen usually require a form of collateral which is used to secure a loan to the accused, the bondsmen then pay the bail bond figure to the court and works with the accused to make sure they attend their required court hearings.
Utah courts had been encroaching into bail bondsmen territory by allowing people who can prove they are in a difficult financial situation to pay only a portion of the bail bond figure. Additionally, the court would return
the funds if the accused attends all required hearings contrasted by bail bondsmen who typically only give a portion of the funds or collateral back if the accused is acquitted or all charges are dropped.
With the changes to bail bond law made first by SB 167 from the 2017 (sponsored by Senator StuartAdams/Rep. Dan McKay in the House) legislative session and latter reinforced by HB 428 from the 2019 legislative session, Utah courts can no longer offer discounted cash bond figures unless the accused has an extreme financial hardship. Unfortunately, there’s not a specific guide line available to determine who falls within extreme financial hardship.
In the case of SB 167, bail bondsmen were successful at getting the court to eliminate discounted bond rates, making their profits skyrocket. The second change gave the courts a perverse monetary incentive, now the courts make a percentage of the bail fee. The 2017 law is creating regulatory capture which requires bail bonds offers to be inflexible forcing more people to use bail bondsmen services. This bad news for the indigent, who are frequently the accused.
The new law HB 428 requires the courts to use an undisclosed formula which creates a lack of transparency and the public needs clarity as to who is setting the formula and what is it based upon. These laws effectively increase the cost of being accused of a crime, even if you are not guilty. People who are indigent are going to be hurt more by the change as they will have a harder time coming with funds or collateral to pay a bail bondsman. At one time, the standard for criminal charges in the United States was innocent until proven guilty. Changes in the law have been moving in the opposite direction of this belief, making it more difficult for people to prove their innocence and stay out of jail.
Unfortunately, most enforcement and punishment from the state continues in the direction of overcriminalization. First- time offenders or low-level offenders that are a low flight should not require bail in the first place. The court should try having the accused check-in with probation officers or ankle bracelet monitors if there is a mild flight risk. We would like to see the cash-bail system eliminated for nonviolent offenders and it continues to prey on the poorest and vulnerable among us.