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Prosecutors, defense attorneys condemn ‘bad faith’ bill to repeal bail reform

In final days of 2021 Legislature, dueling measures seek to either repeal or tweak law

SHARE Prosecutors, defense attorneys condemn ‘bad faith’ bill to repeal bail reform

Salt Lake County District Attorney Sim Gill, right, speaks to reporters as prosecutors and defense attorneys gather at the Salt Lake County District Attorney’s Office building to denounce what they say is a bad faith attempt to repeal bail reform by some legislators in Salt Lake City on Monday, March 1, 2021.

Scott G Winterton, Deseret News

SALT LAKE CITY — A legislative effort to repeal last year’s bail reform would leave Utah vulnerable to costly legal challenges and would walk back progress that’s made the state safer, top prosecutors and defense attorneys from Utah’s three most populous counties said Monday.

The county attorneys and public defenders from Salt Lake, Davis and Utah counties denounced what they call a “bad faith” proposal to undo the law that now keeps suspects in jail based mainly on the risks that they pose and not whether they can afford bail.

Their announcement comes during the final week of 2021 legislative session. The repeal measure, HB220, from House Majority Whip Mike Schultz, R-Hooper, awaits a vote in the Senate.

“A lot of work gets done in the last week,” Salt Lake County Attorney Sim Gill, a Democrat, said in a news conference at his Salt Lake City office Monday. “And if we didn’t feel an existential threat of going backward and losing on the gains that we have made — which would end up in unjust outcomes — we wouldn’t be here.”

The lawyers are instead backing a different measure from Sen. Todd Weiler, R-Woods Cross, SB171, that they say would tweak certain shortcomings of the law that took effect in October.

The 2020 law directs judges to release people accused of low-level crimes using the least restrictive conditions needed, like ankle monitors. When they do set bail, judges must consider a person’s ability to pay.

The changes passed last year with widespread support from police, prosecutors, public defenders and others. But the Utah Sheriff’s Association this year has advocated for its repeal, saying the moves have allowed dangerous offenders to be released, and pointing to several cases as examples.

Gill and his colleagues say those examples can’t be traced back to the law. They said it’s in fact helped them to hold higher-risk offenders for longer.

Attorney Crystal Powell, with the Utah Crime Victims Legal Clinic, noted there’s now a presumption a person will be held in the most serious cases, first-degree felonies.

“This is one of the key parts of the bill that helps to protect crime victims and to remove that would be a very sad thing,” Powell said.

The attorneys called the attempt at repeal a “bad faith” effort but said they believe the sheriff’s association has good intentions and is seeking to protect the public, albeit based on misinformation.

Representatives with the association weren’t immediately available to comment Monday.

Attorney Ben Aldana, a public defender in Utah County, previously advocated for repeal. He said judges there were ordering his clients to be held without the possibility of bail under the new law, but denied the defendants any hearings where they could make their case for release.

Aldana said Weiler’s pending proposal would address that issue.

Others have voiced frustrations over judges’ varying interpretations of the law in different courthouses across the state. But Richard Mauro, executive director of the Salt Lake Legal Defender Association, said the difference is “an indication that we are being heard on certain issues” as judges review defendants’ detentions one by one.

In some cases, top law enforcers are at odds within their own counties over the shift. Utah County Attorney David Leavitt acknowledged that Utah County Sheriff Mike Smith is among those who favor a repeal.

But Leavitt said a cash bail system requiring people to pay their way out of jail goes against the idea that defendants are presumed innocent until proven guilty, and the legal system will benefit from more time to adjust to the law.

If the state reverts to the old system, it could open itself up to legal challenges that have targeted other states’ systems, said Davis County Attorney Troy Rawlings, a Republican.

“Why would we do something that’s stupid when we took the move last year that was smart?” Rawlings asked. While no one has sued Utah over its cash bail system, several organizations were ready to do so in the past, he noted.

The U.S. Supreme Court hasn’t assessed whether cash bail for indigent criminal defendants is constitutional, according to the Congressional Research Service. Lower courts are split on the issue, with some concluding it’s suspect and others ruling it’s tied to legitimate government interests like having a person appear in court.

Utah Senate President Stuart Adams, R-Layton, told reporters Monday that the “functionality” of the reform has been “difficult, and so I think there is a desire to look at repeal. It’ll be interesting to see what the debate is on the (Senate) floor.”

Adams said those involved in discussions about potential changes disagree about what they should look like, and the Senate GOP caucus hasn’t talked about the issue yet.

Sen. Derek Kitchen, D-Salt Lake City, said last year’s changes require some “tuning up,” but “stepping backward and repealing would not be the best way forward.”