Lessons from Utah

 

As any reasonably educated fifth-grader will tell you, our form of government relies upon a system of checks and balances between the executive, judiciary, and legislative branches. As part of that system, the judiciary is allowed to set its own rules for procedures within the court, although in some states, this domain has been challenged. 

In Utah, for example, the Supreme Court, led by Chief Justice Matthew Durrant, had decided to employ a pretrial assessment tool as a means of providing judges with better information. This decision was the result of two studies from the Utah Judicial Council and the Office of the Legislative Auditor General which showed that judges lacked sufficient information to make fair or safe pretrial decisions.

Although the judiciary has signaled to and involved the legislature in its concerns about this issue since 2015, one month before the scheduled roll-out of the pretrial assessment tool lawmakers sent Durrant a letter requesting that the judiciary halt its proposed changes to get more input from the legislature. Durrant agreed to pause the process to encourage consensus among the branches of government, while noting that such changes were fully within the realm of the judiciary. He further noted in his letter of response:

Given the concerted effort of the national bail bond industry to influence this conversation, and given the misinformation that has been provided to the legislature, it is not a surprise that some legislators would like to better understand the rules, the risk assessment and the process, and we are pleased to provide that information.

The pushback was in the face of an especially mild improvement to pretrial decisionmaking. As Durrant pointed out in his letter, the judiciary did not seek to amend the state constitution, eliminate money bail or make the use of the pretrial assessment mandatory.

This is not the first time that the bail bond industry has attempted, through the legislature, to overtake the right of judiciary to set its own procedures. Recently in Maryland, the court’s proposed court rule change—which ensures that no person deemed eligible for pretrial release is held solely due to an inability to meet a financial condition—was briefly overshadowed by an attempt of some legislators, at the behest of the bail bond industry, to take control of this issue.

While changes to court rule 4-216 in Maryland ultimately prevailed, the bail bond industry sought to wield influence through high-level lobbyists, including a former Solicitor General, and campaign contributions. As Common Cause in Maryland noted, in 2016, Maryland legislators collectively received $87,000 in 2016 from the bail bond industry, a significantly higher amount than in previous years. In some cases, the contributions from the bail bonds industry made up over 10% of a legislator’s total campaign receipts.

Utah experienced a similar jump in campaign contributions according to the website, followthemoney.org, which is run by the National Institute for Money in State Politics; while the total amount was not as high, as the graph we generated shows below, there was a dramatic difference in 2016. A look into California’s politicians’ coffers will reveal a similar effort as SB 10 was moving through the legislative process this year.

The decision to release or detain a person pretrial has long been a responsibility for judges, although in the past, judges had to rely on limited information and “gut instinct” to make this critical decision. Pretrial assessments enable judges to make more fully informed decisions, based on factors that have been shown to be able to differentiate effectively among people who can be reasonably released with no conditions, released on some conditions, or should be considered for a detention hearing with full due process protections. Multiple jurisdictions have implemented pretrial assessments with positive outcomes in court appearance and public safety. As one judge stated in a Salt Lake Tribune article regarding the additional information, “That’s sort of a no-brainer. Why would you not want judges to have more information?”

Here’s what we know, from decades of doing this (and only this) work: no matter how incremental a change may be, or how inclusively it is designed or carried out, people working to improve pretrial justice in America can expect well-funded pushback from any quarter at any time. The key is to be ready for it, to be patient, but always persistent. Reducing pretrial detention is a major component to eliminating mass incarceration. There is no alternative but to keep moving this forward.

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