Law Enforcement and Criminal Justice Interim Committee passes motion requesting courts hold off implementing new policy

Upon review of the House Interim Rules, the Office of Legislative Research and General Counsel (LRGC) has determined that a motion voted upon by the Law Enforcement and Criminal Justice Interim Committee on Wednesday, calling upon Utah’s Courts to delay implementation of using Public Safety Assessment tools, did actually pass.

Representative Paul Ray expressed concern during the committee meeting and made a motion requesting that the courts wait to make such a major policy change until the Legislature would have time to review it. Rep. Ray’s motion passed the House by a majority vote and tied in the Senate, 2-2. Initially, the LRGC ruled that the motion had failed.

In January, the Utah Judicial Council approved use of a bail-alternative process which establishes a public-safety assessment (PSA) score based on an algorithm. Under the new rule, judges are permitted to determine to use the PSA score instead of using the probable cause statements that are filed by the arresting officer when deciding if a suspect should be released.

It is scheduled to go into effect on Nov. 13, 2017, although the Utah Legislature won’t have had a chance to review this policy change prior to the next general session in January 2018. 

“Courts should come to the legislature when considering a drastic policy change,” said Rep. Ray. “The court’s authority is to ensure the law is being upheld not create new laws that could have an adverse effect on our community without public hearings and debate.”

Article VIII, Section 4 of the Utah Constitution states, “The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature.”

A PSA score is a computer-generated scoring system created by the Texas-based foundation of billionaire John Arnold and his wife Laura. The foundation advocates for criminal justice reform and other social issues and provides its PSA tool to any jurisdictions that request it. Nine risk factors are plugged into it, including criminal history, age, current charges and past charges. The tool then creates a score for a judge to consider.

The foundation says the algorithm generates gender-and-race-neutral “evidence-based data” on which defendants should be released before trial offering judges “reliable, predictive information about the risk that a defendant released before trial will engage in violence, commit a new crime, or fail to return to court.” Judicial systems in two states and 29 counties — including Chicago, Houston, San Francisco and Phoenix — are using the Arnold Foundation PSA scoring tool.

The algorithm has generated plenty of controversy in the wake of its implementation, however, most recently in San Francisco, where opponents are blaming it for the murder of a professional film and TV scout during a petty robbery. The PSA tool recommended that one of the man’s two assailants was a candidate for pretrial release despite his being a convicted felon and a two-time parole violator, who had also been arrested for gun possession only five days prior to the killing.