Jail inmates who cannot pay $75 to have their DNA samples analyzed should not be assessed the fee and the jail should implement a policy for determining one's "ability to pay" at the time the sample is taken, according to a judge's ruling.
Attorney Brian Barnard filed suit on behalf of two former Salt Lake County Jail inmates challenging the jail's practice of charging $75 for the DNA samples, which are required to be taken by state law.
If the person had $75 money in his "commissary account," the sum was deducted from that. If not, a "negative balance" was created and anytime a relative or friend put money into the inmate's account, the jail could confiscate it and apply it toward the $75 fee.
A "commissary account" is dependent on the largess of an inmate's friends or family, Barnard said, since jail inmates cannot work. When someone deposits money into an account, the inmate can use it to buy snacks and personal hygiene items, which they are required to buy themselves.
Third District Judge Timothy Hanson in a ruling released Thursday agreed with Barnard's argument that the language of one particular state law focuses on "ability to pay," which is different from examining whether someone is impoverished or indigent.
Hanson acknowledged that it would be impractical for jail officials to look at a six-month record of a particular inmate's financial situation before deciding if the person could pay the fee or not.
"However, there is nothing to preclude the defendants from reviewing the inmate's current commissary account balance as a possible benchmark for determining ability to pay," the ruling states. "In other words, the court is not persuaded by the defendant's argument that a snapshot review of each inmate's account cannot be performed given the circumstances of the jail."
Jail officials said Friday that until they can discuss the matter with with the Salt Lake County District Attorney's Office, they could not publicly comment on the ruling.
Barnard had argued that the jail's collection of the fee was flawed because jail officials did not determine whether the inmate was able to pay the fee prior to charging it.
Jail officials, on the other hand, argued that this was simply a practical approach since the inmate population fluctuates so frequently and the average inmate is in the jail 13 days. "The statute requires them to assess an inmate's ability to pay, but there's no waiver. My reading of the statute says there should be a waiver. At the time the DNA sample is taken and the $75 charge made, that should be the end of the story," Barnard said. "Instead, the jail says, 'No we're going to continue to assess it and if money comes in in the future, we'll take it.' Judge Hanson said there needs to be a one-time assessment of the ability to pay, and also for the jail to have a policy in place."
Barnard also has a similar lawsuit pending against the Utah Department of Corrections regarding prison inmates.
"We made an argument to 3rd District Judge Tyrone Medley for summary judgment. He said more facts needed to be developed and denied our motion," Barnard said. "We will renew our motion for summary judgment and provide Judge Medley with a copy of this ruling from Judge Hanson and see if we can build a ruling from there."
E-MAIL: lindat@desnews.com