2023 Top Issues

Bail

Much of our time and efforts were put towards passing this bail reform bill. This bill represents several years’ worth of work from bail stakeholders, including defense, bail bondsmen, law enforcement, and prosecution groups. The original bill included a presumption for bail bonds in cases where the defendant has failed to appear multiple times. This was strongly opposed by select legislators and groups, and so was removed in the final language. It passed on the last night of the session.

Passed:

HB 317 Pretrial Release Modifications also passed on the last day. This is a significant, and very defense-friendly bill that we pushed for much of the year. We hope that the language in this bill will help defense attorneys more effectively argue to get their clients released. It will also provide more opportunities during a case to address release. One bail bondsman-friendly provision may increase the use of monetary bail in some situations, but on the whole, it is a very helpful bill for indigent and private defendants. Specifically, the bill included the following provisions:

  • Adds a definition for “material change in circumstances” as it relates to when a court should re-examine a person’s detention status.

    • Currently, a judge is supposed to have a hearing and decide within 7-14 days whether to release a defendant while his or her case is pending.  After that, the judge is not supposed to change that decision unless there has been a “material change in circumstances,” but the definition of that term is currently unclear, so it is being interpreted differently by different judges.

    • This provision specifically says a material change in circumstances exists when there is:

      • Unreasonable delay in prosecution not attributable to the defense.

      • A material change in risk that the individual poses due to passage of time or other relevant factors.

      • A material change in the conditions of release or services reasonably available to the defendant.

      • A willful or repeated failure to appear at court proceedings.

      • Or other change materially related to risk of flight or anticipated criminal conduct on release. 

  • Clarifies what factors should be considered when deciding whether an individual would constitute a substantial danger to the public.

    • Clarifies that a judge is supposed to consider what conditions and restrictions could be put in place to reduce a person’s risk when deciding whether to release that person.

      • Judges should already be doing this and many are, but the language is being strengthened and clarified.

    • Clarifies that a judge shouldn’t base their decision to hold or release someone solely on the offense for which they are charged.

      • Judges should already be doing this as well, but the language is being strengthened and clarified.

      • The offense charged should be one of the factors in the decision, but it shouldn’t be the only thing the judge considers.  The judge must consider at least one other factor (except in death penalty cases).

  • Provides that if a judge sets a bail amount when someone is arrested, if that person still hasn’t posted bail after being in jail for seven days, the judge should presume that the bail amount is unaffordable for that person.

    • This applies when the judge or sheriff sets a bail amount to allow someone to be released by posting bail but that person can’t come up with the money after seven days.  If the person is still in jail after seven days, they can ask the judge to reconsider the amount of bail.  The new provision then tells the judge they should presume that the original bail amount was more than the person could afford.  The judge must then decide whether to reduce the bail or keep it the same amount.

  • Allows a judge to issue a pretrial status order at a person’s initial appearance if appropriate, or delay it until a more thorough hearing can be conducted.

    • Currently, if a judge issues a no bail warrant and a person finds out about it the person can call the court and schedule a court date to come in and take care of the warrant.  However, when the person voluntarily comes into court for their court date the judge has no choice but to arrest the person and schedule the detention hearing 7-14 days later. 

  • Allows expedited appeal of a judge’s detention decision pending trial.

    • This provision is intended to signal to the courts that if a person is held in jail and appeals his or her denial of bail, the courts should expedite the appeal in those circumstances. We expect the courts will then adjust the appellate rules to effectuate those expedited appeals. 

  • It provides that the county sheriff or the sheriff’s designee is the person who sets bail at the time of booking.

    • Currently, the statute requires the counties to use a “bail commissioner” to set bail amounts which in practice ends up being the sheriff or someone selected by the sheriff.  This bill simplifies the process and aligns the statute with current practice.

  • It states that if a person was already released without bail and then failed to appear, then the judge should consider whether imposing a bail bond would increase the likelihood that the person will come to court.

    • This provision only applies when a person is initially released by a judge without having to post bail, and then that person intentionally misses court or misses court more than once.

Competency/Mental Health

Competency was a big issue this session. Many legislators believe that incompetent individuals are being released without the proper treatment, which allows them to continue to commit crime, and even that individuals may be declared incompetent without appropriate evaluation.

Passed:

HB 330 Civil Commitment Amendments passed. The bill does a number of things: first, it limits the number of competency evaluators to one except in cases charging Capital offenses or where the court feels that two evaluators are necessary. The bill also specifies that the parties stipulation to the existence of a bona fide question as to a defendant's competency, standing alone, is not sufficient to warrant a competency evaluation. The bill reiterated the standard for competency and factors the evaluator may consider, where applicable, in assessing competency. The bill also allows the parties to retain their own evaluators, at the parties expense, to conduct competency evaluations.

HB 380 Competency to Stand Trial Amendments passed, prohibiting a court from granting a petition of incompetency based solely on the defendant having previously been released from custody due to incompetence in an unrelated criminal action. It adds certain things that must be considered in competency determinations, including the probable cause statement, prior health evaluations, and criminal history. We worked with the sponsor to add specific changes, one of which allows a court to rely on the competency determination of another court during simultaneous cases with the same individual. Another change we made removed the requirement that courts review the probable cause statement in competency determinations. 

We worked extensively on HB 385 Mentally Ill Offenders Amendments, which passed. The bill significantly modified the procedures associated with “Guilty and Mentally Ill” pleas. Under the new procedure, evaluators examine the defendant's state of mind at the time of the offense to determine whether the defendant suffered from a “mental condition” which was defined to focus primarily on psychotic disorders and intellectual disabilities. If the defendant is found to have suffered from a mental condition then, assuming competency, the defendant can enter a plea  of guilty with a mental condition. The court then stays imposition of sentence for 1 year and orders the defendant to participate in treatment. At the time of sentencing, in addition to traditional sentencing factors, the court is to consider the defendant's progress in treatment as well as whether any imposed sentence will place the defendant at risk for decompensation. The bill represents an improvement to Utah’s guilty and mentally ill statutory scheme and, along with bail, may be one of the most significant pieces of legislation passed this session.

Juvenile Justice Reform Rollback

Passed:

HB 304 Juvenile Justice Revisions was one of our high priority issues. This bill designates existing funds for a juvenile gang and other violent crime prevention and intervention program; requires courts to notify schools and SROs about students that have committed violent felonies, weapons offenses, or are placed on probation; requires schools to create a reintegration plan for every student they receive a notification from court for; expands when a school can refer a case directly to law enforcement or court; allows for detention to be used for class C offenses and contempt of court for the substantive offense happening on school property; makes it a class B misdemeanor for a juvenile to possess a machine gun attachment; emphasizes reporting requirements on weapons brought to school; and modifies non judicial eligibility requirements, including adding to the list of offenses not eligible of NJ through probation. The original bill allowed detention to be used for status offenses (truancy) and the valid court order exception, allowed tobacco and truancy to be referred directly to law enforcement and court, and restricted NJA eligibility.

Preliminary Hearings

Preliminary hearing reform is consistently a top priority for UACDL membership. After extensive negotiation during the interim, prosecution and victims’ advocates groups remained against any reform in this area. We ran two bills, one of which attempted to establish witness depositions with many guardrails in place for victim witnesses. These failed to gain enough support on the Senate floor. However, we did succeed in passing two reform bills this session and we are confident that we can do more work in this area.

Passed:

The final version of SB 87 Criminal Prosecution Modifications became a data tracking bill, which requires the Administrative Office of the Courts to collect the following data on cases involving individuals charged with class A misdemeanors and felonies: the number of cases in which a preliminary hearing is set and placed on the court calendar; the median and range of the number of times that a preliminary hearing is continued in cases in which a preliminary hearing is set and placed on the court calendar; the number of cases, and the average time to disposition for those cases, in which only 1102 statements are submitted as probable cause at the preliminary hearing; the number of cases, and the average time to disposition for those cases, in which 1102 statements and witness testimony are submitted as probable cause at the preliminary hearing; the number of cases, and the average time to disposition for those cases, in which only witness testimony is submitted as probable cause at the preliminary hearing; and the number of cases in which a preliminary hearing is held and the defendant is bound over for trial.

The final version of SJR 6 Joint Resolution Amending Rules of Procedure and Evidence Regarding Criminal Prosecutions provides that the findings of probable cause may be based on hearsay, but may not be based solely on hearsay evidence admitted under Rule 1102(b)(8) of the Utah Rules of Evidence. It requires that a prosecutor must disclose all evidence used in the information within five days after the prosecutor receives a request for discovery from the defendant. It also prohibits a prosecutor, or any staff for the office of the prosecutor, from drafting an 1102 statement for a witness or tampering with a witness in violation of Utah Code section 76-8-508, although they are still allowed to assist in drafting.

Youth Expungement

Passed:

One of our top priority bills for our juvenile attorney this session was HB 60 Juvenile Justice Modifications, which amends statutes related to juvenile records. Specifically, it prohibits public employers from excluding applicants from initial interviews due to a juvenile delinquency adjudication; requires the State Board of Education to include information about dangerous weapons in an annual report on school discipline and law enforcement action; provides that a juvenile may petition the juvenile court for vacatur of the adjudication if the adjudication was for a violation of prostitution, aiding prostitution, sexual solicitation, or human trafficking for labor if the petitioner engaged in the human trafficking for labor while subject to force, fraud, or coercion; clarifies the court can expunge records of arrest, investigation, detention, delinquency petitions, and non judicial adjustments; allows for expungement of a petition found not true 30 days after the judicial decision; requires the court to consider certain factors before expunging if the person is a restricted person creates automatic expungement for records consisting solely of successful non judicial adjustments completed on or after October 1, 2023. The court received $566,100 in funding for implementation.