Supreme Court of Atah 450 South State Street P.O. Box 140210 Salt Lake City, Wah 84114-0210 Telephone (801) 238-7937 Chambers of Chiet Fustice Matthew B, Burcant October 12,2017 The Honorable Wayne Niederhauser President of the Senate P.O. Box 143115 Salt Lake City, Utah 84114 ‘The Honorable Greg Hughes Speaker of the House P.O. Box 145030 Salt Lake City, Utah 84114 Dear President Niederhauser and Speaker Hughes; ‘Thank you for your letters dated September 26 and October 3, 2017 regarding proposed changes to Rule 7 of the Utah Rules of Criminal Procedure. While we believe that the dialogue between all branches to which your letter refers has occurred, we welcome further conversations. ‘And while we may not share the same view of whether such a rule, describing what information a judge may consider in making a release decision is procedural or not, our decision to pause implementation of that rule and the changes to the pretrial process obviates the need to resolve that issue just now. With respect to Rule 7, sufficient questions were raised as to the imminent need for the rule that last Wednesday, prior to our receipt of your September 26" letter, the Supreme Court voted to delay adoption of the rules. While these are entirely procedural rules over which the Utah Constitution gives the Court jurisdiction, we acknowledge that the more productive route would be to proceed, if possible, with a consensus among all three branches. While the vast majority of the rule addresses issues other than pretrial release, we will nonetheless put the rule change on hold until we have had a sufficient opportunity to discuss its merits with you, Concomitantly, at the direction of the Judicial Council the impending implementation of the Public Safety Assessment will also be paused in order that a similar dialogue can occur. iven the concerted effort of national bail bond industry representatives to influence this mn, and given the misinformation that has been provided to the legislature, it is not a surprise that some legislators would like to better understand the rules, the risk assessment and the process, and we are pleased to provide that information. convers:‘Though the Legislative Auditor General did a thorough job of objectively evaluating the issues of pretrial release and pretrial risk assessment, and I would direct you to a careful consideration of the audit report, its findings and recommendations, I would also direct you to the similar evaluations and synopses of the pretrial issue conducted by the Pew Charitable Trust, National Conference of State Legislators, the Council of State Governments, and the National Center for State Courts, The clear consensus of those without a financial stake is that reliance on monetary conditions of release should be reduced, and that validated risk information should be provided to judges. Using an evidence-based risk prediction can only increase public safety, not reduce it. We now ask judges to make release decisions without giving them any information about the accused other than the offense with which they have been charged. This leads to the unnecessary incarceration of low risk persons who cannot afford monetary bail, and the unnecessary unsupervised release of dangerous recidivists. The more information available to judges about individual arrestees the better they can make appropriate pretrial decisions about them. Using an evidence-based risk prediction will also reduce the cost to county jails to house those who cannot afford monetary bail, and will allow judges to impose appropriate release conditions on those with a high risk of failing to appear, or to deny release altogether. Because ‘many Utah counties have little or no pretrial supervision resources, monetary bail and the services of commercial bondsmen will continue. The Uniform Bail Schedule will remain in place. ‘The predictions of grave consequences for jurisdictions that adopt the risk assessment approach are puzzling, since Salt Lake County has had this process in place for several years. The tool currently in use has been validated, and information is passed to judges who use it now, every day. Yet there have been no systemic pretrial release aberrations, and bail bond companies seem to be financially viable, even in Salt Lake. The Supreme Court and the Judicial Council have proceeded slowly and cautiously in the pretrial arena, We included legislators in our initial study committee two years ago, and on our standing committee, CCI has been a full partner in guiding this work, it recently reaffirmed its support of these changes to the pretrial process, and has significant legislative membership. We spent many hours with legislative audit staff on not one but two audits of these issues, and we have considered and implemented legislative feedback throughout the process of developing our plan to provide judges with more information, Our efforts to orient and educate our judges and partners on the appropriate use of pretrial risk information have yielded valuable feedback, and those education efforts will continue in the interest of gaining additional feedback from legislators and others so that thoughtful adjustments to the process can be made. We have not sought, as have other states, to amend the state constitution, or to make the use of the PSA mandatory, or to eliminate monetary bail. We havetaken half steps, and while we have done so in partnership with prosecutors, defense counsel, the department of Public Safety, CCJJ, the Sentencing Commission and others, we commit, because of the respect we have for the legislature, to pause mid-stride to answer any and all questions you might have prior to moving forward with final implementation. In addition, as an added measure of transparency and accountability the courts are working with the Access to Justice Lab at Harvard Law School to conduct various studies, ot randomized control trials, to determine what benefit the PSA provides to the public and defendants in Utah. ‘The courts will also be tracking pretrial outcomes to ensure the PSA, and pretrial release and supervision programs overall, are successful in advancing faimess and public safety. Please understand that the only interests of the judiciary in this endeavor are fairness and public safety. We look forward to advancing those interests with you, and I would be pleased to meet with you individually at your earliest convenience to discuss this further. Sincerely, 242, Matthew B. Durrant Chief Justice