Since graduating from Brigham Young University Law School in 1998, I have spent the majority of my career in public safety. In 2006, I was extremely honored to be appointed the U.S. attorney for Utah. At the time, our state prosecuted countless dangerous criminals, including Brian David Mitchell and Wanda Barzee, the kidnappers of Elizabeth Smart. Based on my experiences, I learned what works in our justice system and, just as importantly, what doesn’t.
Since leaving public office, I have focused on fixing what’s broken. This journey recently brought me home to Utah to testify before an interim state legislative committee in favor of badly needed changes to our bail system.
Most states and municipalities require people awaiting trial to post bail before they can be released. The system gives more weight to the defendant’s financial standing than it does to the likelihood he or she will break the law. Sadly, that gives wealthy people accused of violent crime and drug dealers with access to cash the ability to purchase their freedom pretrial while forcing poor people accused of low-level, nonviolent offenses to languish in jail cells just because they cannot afford bail.
Fortunately, many court systems are moving away from that standard, and Utah will soon join the club. The Utah court system adopted a new risk-assessment tool earlier this year to give judges more information about the defendant’s risk to his or her community. Cash bail won’t be eliminated, but judges will now have more data to make their pretrial determinations.
Sadly, critics of this new tool — led by the bail bondsmen who continue to profit from the current system — are trying to prevent Utah from implementing this modest, common-sense reform. They forced the hearing at which I testified to try to block the courts from employing this additional safeguard — all because they worry it will take a big bite out of their pocketbooks.
The truth is that bail bondsmen are running a business, and it’s a very successful business worth more than a billion dollars. Shifting to a system that is not entirely based on the wealth of the accused may cost them some money. I felt the need to speak up when bail bondsmen falsely claimed money bail is safer than a system in which judges base their pretrial decisions on risk. Data from other states that have moved to a risk-based system prove these claims objectively false.
Salt Lake County has been using a similar tool for decades, so this isn’t even new to our state. Even under the change, judges still have total discretion to determine bail or release. This system just gives them more information on which to base their decisions. The bail bondsmen have claimed that the new system opens the floodgates to release everyone pretrial. Again, this is false: Even with the tool, 60 percent of inmates in Salt Lake County remained in jail as they awaited trial, according to data from December 2013 compiled by Measures for Justice.
Perhaps most compelling are data from other states that have adopted this new system. Overall crime dropped by more than 3 percent in New Jersey after the Garden State implemented these changes. Violent crime fell by a staggering 12 percent. And if New Jersey doesn’t move you, just look at numbers from Kentucky, where bail bondsmen were considered so corrupt they were eliminated decades ago. Kentucky judges began using risk assessments in certain jurisdictions in 2013, and in an early evaluation, crime in those areas decreased by 15 percent among individuals on pretrial release, with no drop in appearance rates when defendants were due back in court.
Perhaps the most detailed data come from Lucas County, Ohio, where the risk-assessment tool was implemented in January 2015. More than a year later, pretrial crime is down: The percentage of pretrial defendants arrested for other crimes while out on release was cut in half — from 20 percent during the old money-bail system to 10 percent. In addition, the percentage of pretrial defendants arrested for violent crimes while out on release decreased — from 5 percent before the county began using the risk-assessment tool to 3 percent. Data also showed a significant increase in people reporting for court hearings, with the percentage of pretrial defendants who skipped their court date falling from 41 percent during the old money-bail system to 29 percent.
At the Utah state legislative hearing, Brent Johnson, general counsel for the Utah court system, reassured the assembled legislators that Utah judges want this additional information to help them decide what to do with defendants before their trials. Judges view the tool as additional evidence to help them make a decision, Johnson told the committee. He warned them not to be swayed by misinformation from the other side.
Opponents of this change tried to scare lawmakers by citing examples of people who committed atrocious crimes after they were released without bail. But there are so many more examples of people who committed similarly violent crimes after paying for their release. In 2013, a Utah man convicted of rape killed someone after being released on bail. More recently, a man charged with trafficking in child pornography was released on money bail only to sexually assault a child.
No system will ever be perfect, but the data show that pretrial decisions focused on risk are far preferable to a system that allows defendants to purchase their freedom, regardless of the danger they pose to society. And while the bail bondsmen have plenty of money and political sway, the public safety benefits of risk assessments has been compelling to many legislators. Ultimately, the committee refused to support any legislation to block these risk assessments.
The courts are now free to move forward with this risk-assessment tool, and as a former federal prosecutor and a father raising his family in Utah, I couldn’t be more grateful.
Brett Tolman is the former U.S. Attorney for Utah