Justice and Due Process

Jail is not for the presumed innocent

The following op-ed was published this weekend in the Salt Lake Tribune.

Fairness and equity are intended to be two cornerstones of our justice system, but in many instances, these principles appear to be conveniently forgotten. Indeed, it seems that many Utahns have slowly become accustomed to a system where people are presumed guilty until proven innocent. One glaring example is the state’s pretrial bail system.

New data shows that nearly two-thirds of Americans in jail have not yet been convicted of a crime. This is a grave concern because incarceration is meant for criminals, not for suspects. In Utah, much of this problem could likely be attributed to the pretrial bail system where judges simply don’t have enough information about individuals accused of a crime to accurately predict their flight risk. Without this data, judges have to instead rely on setting bail amounts based on a fee schedule.

Imagine you’re arrested for a crime you didn’t commit. After you are charged with committing the crime, the judge sets your bail. If you can’t afford bail, you can be incarcerated for weeks, months, or more as you await your trial — your opportunity to assert your innocence in court.

Meanwhile, significant financial pressure mounts against you — you’d probably lose your job and fall behind in rent or mortgage payments — inducing you to eagerly accept whatever plea deal the prosecutor offers, despite your innocence, merely so you can get out of jail and move on with your life.

Bail is a tool that should be used for the sole purpose of incentivizing individuals to show up for their trial. The premise is simple: A judge looks over the charged individual’s case and sets cash bail at what is supposed to be an appropriate amount (if any) based on their individual circumstances and risk they may not show up for trial. If the individual pays bail, or 10 percent of the full amount for a bond, they can walk free until their court date. If not, they sit in jail. If those who paid show up to court on the assigned day, their bail money is returned to them.

This system allows those with financial means to purchase their freedom, while low-income, low-flight risk Utahns stand to lose their jobs and housing while they’re locked up, simply because they don’t have enough money. In short, the status quo doesn’t adequately ensure fairness and equity, nor does it protect the presumption of innocence.

A 2017 performance audit of Utah’s monetary bail system revealed that in most courts, “little reliable information about a defendant’s risk of flight or danger to the community is provided to judges” when pretrial release decisions are made. Without this information, judges are forced to make arbitrary bail decisions based on the what they themselves know, which is often very little aside from the alleged criminal charge. As a result, they resort to relying on the standardized list of bail amounts instead of the flight risk of the specific individual.

Many states and cities have begun to address this knowledge problem by embracing the expanded use of non-cash bail options for low-level criminals. They have done this by implementing risk assessment tools into their pretrial systems. Arizona and New Jersey, for example, use a tool carefully developed by the Arnold Foundation that compares multiple different factors about the defendant and their circumstances to determine his or her flight risk.

If the person is determined to have a very low flight risk the judge may not even need to require cash bail at all. The low-risk defendant is then permitted to wait and prepare for their trial from home rather than inside a jail cell. This saves the taxpayers and the defendant unnecessary costs while ensuring fairness and equity.

If Utah courts adopted this tool, judges would be able to use additional information to make a more knowledgeable decision about whether bail should be required, and if so, how much. Such a system would presume all Utahns innocent—not just those who can pay the state to purchase their pretrial freedom. And although this may be only one small change in the entire criminal justice system, it is one that will have meaningful and substantial outcomes for presumably innocent Utahns awaiting their day in court.