Presumption of Innocence? Not for these poor Utahns…

Justice demands equal treatment under the law, but that’s not happening in Utah’s courtrooms and jails. Those who can pay the government are able to maintain their freedom; those who can’t, don’t.

If you’re charged with a crime and bail is set, those who can afford to post bond are able to get out of jail while they await trial. But if you can’t afford it, you sit in jail.

And this isn’t happening to only a few people. According to 2013 data, 43% of inmates statewide were in jails because they were waiting for a trial. These are people who are supposed to be presumed innocent, and yet they remain incarcerated mostly because of a financial inability to pay money to the government to be released. In Salt Lake County, 60% of inmates were in jail awaiting trial.

Former U.S. Attorney Brett Tolman told a legislative committee earlier this week that “the facts support implementing a system where individuals accused of violent crimes cannot just purchase their freedom,” and he’s right. To that end, court administrators have begun exploring the use of a system that would provide judges additional information to determine a defendant’s risk in order to assess whether the person should be released before their trial or not.

In other words, more informed decisions can be made by the judiciary to better adhere to the presumption of innocence, rather than merely perpetuating a system in which those who can afford to “purchase their freedom” are treated like they are innocent (until guilt is proven at trial).

Not everybody supports this idea. Utah’s bail bonds industry advocated for a motion in a legislative law enforcement committee to object to the court’s adoption of this change in policy, and it narrowly passed. But the courts are moving forward anyway.

Their decision to do so is in line with a performance audit by the legislature’s own auditors, published earlier this year. Among other relevant conclusions, here’s what the audit says:

Basing pretrial decisions on inadequate information negatively impacts public safety, taxpayer resources, and defendant outcomes. When judges have inadequate information about a defendant’s risk, it is difficult to identify and detain defendants who pose a public safety concern.

Likewise, over-incarceration can result when those who can be safely released are not, because of a lack of risk data. Maximizing the number of defendants who can be safely released saves taxpayer resources by freeing up jail space and reducing the costs associated with incarceration.

Finally, even short amounts of time in jail for low-risk defendants are correlated with poor pretrial outcomes such as lowered court attendance and new criminal activity. Basing pretrial release decisions on risk mitigates these undesirable consequences while simultaneously promoting better outcomes and public safety.

If two people are arrested for the same crime, justice demands they be treated fairly. If both pose no flight risk, they should both be released prior to trial—not just the one who can fork out money to the state. And if one defendant has a prior criminal history along with past failures to appear in court, a judge would be justified in holding that defendant while releasing the other who has no criminal past.

Holding presumably innocent people for weeks or months before trial causes significant harm. As Chief Justice Durrant told the legislature earlier this year, it means “separation from their family and often a loss of their employment, with the accompanying loss of income.” If you’re wrongly charged with a crime, being forcefully separated from your family, job, and life for weeks or months is not just difficult—it’s unjust.

And that’s the long and short of it: what the courts are doing will increase and improve the administration of justice, better ensuring that presumably innocent people are treated as such, whether they have money or not.