The life and an accused person can quickly crumble, even if they’re totally innocent.
This is partly because individuals who are accused of a crime can be forcibly removed from society and tossed into a county jail – a concept that we only seem to be using in this modern age because of tradition.
Let’s face it, “jail” is a nice word for “a cage”. The question is do we really need to put people in cages when we have so many alternatives nowadays – like microchips that can track a person’s movements?
When someone is charged with a crime or arrested in the State of Utah, in most cases, they have a right bail.
Utah Code § 77-20-1 says the following:
(1) A person charged with or arrested for a criminal offense shall be admitted to bail as a matter of right, except if the person is charged with a:
(a) capital felony, when the court finds there is substantial evidence to support the charge;
(b) felony committed while on probation or parole, or while free on bail awaiting trial on a previous felony charge, when the court finds there is substantial evidence to support the current felony charge;
(c) felony when there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community, or is likely to flee the jurisdiction of the court, if released on bail; or
(d) felony when the court finds there is substantial evidence to support the charge and it finds by clear and convincing evidence that the person violated a material condition of release while previously on bail.
(2) Any person who may be admitted to bail may be released either on the person’s own recognizance or upon posting bail, on condition that the person appear in court for future court proceedings in the case, and on any other conditions imposed in the discretion of the magistrate or court that will reasonably:
(a) ensure the appearance of the accused;
(b) ensure the integrity of the court process;
(c) prevent direct or indirect contact with witnesses or victims by the accused, if appropriate; and
(d) ensure the safety of the public.
(3) (a) The initial order denying or fixing the amount of bail shall be issued by the magistrate or court issuing the warrant of arrest or by the magistrate or court presiding over the accused’s first judicial appearance.
(b) A person arrested for a violation of a criminal protective order issued pursuant to Section 77-36-2.5 may not be released prior to the accused’s first judicial appearance.
(4) The magistrate or court may rely upon information contained in:
(a) the indictment or information;
(b) any sworn probable cause statement;
(c) information provided by any pretrial services agency; or
(d) any other reliable record or source.
(5) (a) A motion to modify the initial order may be made by a party at any time upon notice to the opposing party sufficient to permit the opposing party to prepare for hearing and to permit any victim to be notified and be present.
(b) Hearing on a motion to modify may be held in conjunction with a preliminary hearing or any other pretrial hearing.
(c) The magistrate or court may rely on information as provided in Subsection (4) and may base its ruling on evidence provided at the hearing so long as each party is provided an opportunity to present additional evidence or information relevant to bail.
(6) Subsequent motions to modify bail orders may be made only upon a showing that there has been a material change in circumstances.
(7) An appeal may be taken from an order of any court denying bail to the Supreme Court, which shall review the determination under Subsection (1).
(8) For purposes of this section, any arrest or charge for a violation of Section 76-5-202, aggravated murder, is a capital felony unless:
(a) the prosecutor files a notice of intent to not seek the death penalty; or
(b) the time for filing a notice to seek the death penalty has expired and the prosecutor has not filed a notice to seek the death penalty.
Notice, that there are certain instances when an individual can be held without bail. These instances include when a person is charged with a capital felony, such as murder, or, more common, when someone is charged with a felony crime when they are on probation or parole for a previous felony, or when they are charged with a felony when another felony charge is pending. Commonly know as felony on felony.
The Utah Code also puts forth the reasons why bail is set. Those reasons are:
(a) ensure the appearance of the accused;
(b) ensure the integrity of the court process;
(c) prevent direct or indirect contact with witnesses or victims by the accused, if appropriate; and
(d) ensure the safety of the public.
In theory, if it appears that the accused will appear, the court process will be respected, there will not direct or indirect contact with witnesses or victims, and that the public safety will not be threatened, certain things should happen to protect the defendant – like a presumption of innocence.
And if bail is set, it should be a reasonable amount. At times, the person can be released on their “own recognizance”, too, which, means that they are released without having to post bail.
The unfortunate thing about the process is that the statute arguably does not consider the practical impacts of keeping an individual locked up. After all, when an individual is behind bars they are not working, not paying bills, not supporting their family, and are also not enjoying the many liberties that are guaranteed by the United States and Utah Constitution. In fact, at times, the “victim” of their crime is so terribly impacted financially (like a spouse or child), that they regret ever having called the police in the first place. We often hear things like this: “Hey, if I had had any idea that all this was going to happen, I never would have called the cops.”
It is not written anywhere that if an individual breaks the law they should lose everything, and be forced to give up the life that he worked so hard to obtain. However, that is often the result when a father, mother, brother, sister, or friend is incarcerated. They can lose their job, not be able to attend school, or other important functions.
Even if the accused is proven to be totally innocent later on, the person that was accused has a life that is often left in shambles. This is sad because a person is supposed to be presumed innocent, and the purpose of the system is supposed to be to deter and rehabilitate. Unless somebody is presently a serious risk to others, locking them up makes little, if any, sense at all. We have more people locked up right now in the United States that the USSR had at the peak of its power.
If an individual is released on their own recognizance, or can make bail, then a lot of collateral consequences can be avoided. But sadly, all too often bail cannot be made, or is not set.
This can be very frustrated because with today’s technology virtually everybody can be tracked by a microchip. So, is bail really necessary any more in non-extreme cases like homicide?
Some argue that “the system” can be a cruel unforgiving hand that smacks the lives of many in a way that the Founding Fathers of this great country never intended.