Justice and Due Process

We Suck at Bail

This op-ed was originally published in City Weekly on December 21st, 2022.

Utah is terrible at deciding who should be kept in jail prior to trial.

Over a third of all people who are released prior to trial will fail to appear in court at least once. Those who fail to appear tend to do so repeatedly, averaging 3.5 missed court hearings each. Each time they do so they delay justice for victims and waste court and police resources. 

Missing court isn’t the only problem. More than a third of those who are released will commit an offense while their original case is still pending. On average, those who commit a new crime pick up 4.7 new charges. 

Because people are legally innocent until proven guilty, they should generally not be kept in jail unless and until they are found guilty. However, the justice system owes a duty not only to defendants, but also to the public. If someone has factually committed a crime and there is a strong likelihood that he will continue victimizing others, something should be done to mitigate that risk. 

This isn’t to say that the only options are releasing the accused or keeping him in jail until trial. Courts can release people with conditions. Those conditions can be financial—monetary bail is granted—or nonfinancial—a judge can order someone to wear a GPS monitor, have no contact with an alleged victim, etc.

Unfortunately, those tools are either inherently ineffective or are not being applied correctly. Of those released with a financial condition, 40 percent still miss at least one court hearing. This holds true for 30 percent of those released with nonfinancial conditions and 34 percent of people released without any conditions. The numbers regarding crimes while on pretrial release are equally abysmal. Nearly 40 percent of those released with a financial condition will commit a crime as will 27 percent of those released with nonfinancial conditions and 39 percent of those released with no conditions. 

Clearly, we are terrible at predicting the future. Currently, judges are making decisions using a Public Safety Assessment (PSA). The PSA attempts to quantify the risk that a defendant will fail to appear or commit a new crime. It considers nine simplistic factors relating to criminal history and prior failures to appear and assigns a score between one and five. Conditions are then recommended: Level 1: remind the defendant of court and call once a month; Level 4: electronic monitoring and/or drug testing. 

This approach is too simplistic. Many other factors are at play. If a defendant doesn’t have a stable residence, judges may need to make alternative arrangements for notifying him of hearings. If someone is an alcoholic, he might need continuous alcohol monitoring to prevent additional episodes of driving drunk. And if someone keeps breaking into cars every time they are granted pretrial release, there may be no way to protect the public other than keeping him in jail. The PSA might be informative, but judges need to consider other factors and tailor conditions to address those specific concerns. There also needs to be meaningful consequences for missing court and continuing criminal behavior. This is apparently lacking now given that defendants are failing to appear multiple times. 

Given the data above, it’s clear that what we are currently doing isn’t working. Unfortunately, the current data isn’t granular enough to help us formulate a solution. It doesn’t tell us what types of crime defendants are committing while on pretrial release. It doesn’t tell us if there are any patterns that would help us better predict continued criminal behavior and failures to appear. 

When Utah’s Justice Reinvestment Act (JRI) passed in 2015, it promised evidence-based solutions. But in the seven years since it has been implemented, we have failed to gather data that would make this possible. Instead, we’re still operating based on anecdotes, gut feelings, and inaccurate prediction tools. It’s time we put the “investment” in JRI and gather the evidence needed to make better decisions. Maximizing liberty for defendants who have not yet been proven guilty while keeping the community safe from continued crime are too important to leave to chance.