Utah State Legislature

Senate Utah State Capitol Complex 320 State Capitol

PO BOX 145115 Salt Lake City, Utah 84114-5115
(801) 538-1035 fax (801) 538-1414

House of Representatives Utah State Capitol Complex 350 State Capitol

PO BOX 145030 Salt Lake City, Utah 84114-5030
http://le.utah.gov (801) 538-1029 fax (801) 538-1908

October 3, 2017

Chief Justice Matthew B. Durrant Administrator Richard Schwermer

450 South State Street, Fifth Floor 450 South State Street, Third Floor
Salt Lake City, UT 84114 Salt Lake City, UT 84114

Dear Chief Justice Durrant and Administrator Schwermer,

This letter addresses our concern that the Judiciary intends to require or authorize each state
district court judge to use a pretrial risk assessment tool to assist the judge in deciding the
disposition of pretrial detainees. Specifically, we urge you not to implement, or require the use
of, any pretrial risk assessment tool. We also request that you work with the Legislature and
other relevant parties to develop possible legislation for the 2018 annual general session that
implements, provides standards and requirements for, and directs the application of, any pretrial
risk assessment tool.

We understand that judges have discretion, based upon standards established by the Legislature,
to determine the disposition of pretrial detainees. We are also aware that several national groups
recommend providing judges with tools to allow them to make decisions about the disposition of
pretrial detainees. Those groups advocate providing judges with predictive criteria that have been
statistically demonstrated to provide conclusions about whether a pretrial detainee who is
released into the community will need to return to court, will harm the justice system, or will
endanger the community. Our research found that nine states have implemented pretrial risk
assessment requirements. In eight of those states, the legislature has authorized or directed the
judiciary to obtain a pretrial risk assessment tool and use its conclusions as one of the factors to
be used by a judge in determining the appropriate disposition of a pretrial detainee. In only one
state, Arizona, has the judicial branch implemented a pretrial risk assessment tool without
legislative or constitutional direction.

To us, the question of which branch of government has authority to mandate or direct the use of
a pretrial risk assessment tool raises separation of powers concerns. In general, the Utah Supreme
Court has analyzed questions like this one by determining whether the requirement is simply a
rule of procedure, which is generally a judicial function, or if it creates a substantive right or
establishes a policy, which is generally a legislative function. The Utah Constitution authorizes
the Utah Supreme Court to adopt rules of evidence and procedure to be used in the courts of the
State. Utah Constitution, Article VIII, Section 4. However, the Utah Supreme Court has also
stated that: Simply stated, legislative powers are policy making powers . . . . Carter v. Lehi
City, 2012 UT 2, 38, 269 P.3d 14 (internal citations and quotations omitted). In our opinion,
because the question of whether or not to use a pretrial risk assessment tool raises substantial
policy questions, the Legislature is the appropriate branch to decide if and in what form a pretrial
risk assessment tool should be used by Utahs courts.

Consequently, we request that the judicial branch, or either of you, not require or authorize the
use of any statewide pretrial risk assessment tool until the Legislature has affirmatively
authorized you to do so. We look forward to working with your representatives on possible
legislation that addresses a pretrial risk assessment tool.

Thank you for your consideration of our request.

Sincerely,

President Wayne L. Niederhauser Speaker Gregory H. Hughes