H.B. 206, superseded in 2021, required courts to impose the least restrictive means necessary to reasonably ensure public safety and appearance in court. It also required judges to determine an individual's ability to pay.

Although we originally supported this bill, the implementation of H.B. 206 precipitated several problems. Judges interpreted and implemented the provisions of this bill very differently throughout the State, but in general, they severely limited the use of bail when making release decisions. Because of this, prosecutors began making motions to detain without bail instead of asking for large bail amounts and these motions were usually granted. Additionally, prosecutors were often leveraging someone’s release to compel plea deals. Statistics in Salt Lake County showed that prosecutors were winning 96% of detention hearings.

On the other end of the spectrum, prosecutors believed that low-level offenders were being released without much thought and jail was no longer an effective deterrent.

Although there were discussions on amending the bill, ultimately the involved stakeholders compromised on repealing H.B. 206 with HB 220 Pretrial Detention Amendments during the 2021 General Session, and continuing bail discussions over the next several years.

H.B. 317 provides more opportunities during a case to address release. Specifically, the bill does the following:

• Adds a definition for “material change in circumstances” as it relates to when a court should re-examine a person’s detention status, which includes: unreasonable delays in prosecution, risk factor changes, conditions of release or services available, and a willful or repeated failure to appear in court. 

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

• 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.

• 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.

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

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

• 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.