A Limited Review Of The Use Of Cash Bail In Utah District .
REPORT TO THEUTAH LEGISLATURENumber ILR 2016-BA Limited Review of the Use ofCash Bail in Utah District CourtsFebruary 2016Office of theLEGISLATIVE AUDITOR GENERALState of Utah
STATE OF UTAHOffice of the Legislative Auditor General315 HOUSE BUILDING PO BOX 145315 SALT LAKE CITY, UT 84114-5315(801) 538-1033 FAX (801) 538-1063Audit Subcommittee of the Legislative Management CommitteePresident Wayne L. Niederhauser, Co–Chair Speaker Gregory H. Hughes, Co–ChairSenator Gene Davis Representative Brian S. KingJOHN M. SCHAFF, CIAAUDITOR GENERALFebruary 1, 2016TO: THE UTAH STATE LEGISLATURETransmitted herewith is our report, A Limited Review of the Use of CashBail in Utah District Courts (Report Number ILR 2016-B). We will be happy tomeet with appropriate legislative committees, individual legislators, and other stateofficials to discuss any item contained in the report in order to facilitate theimplementation of the recommendations.Sincerely,John M. Schaff, CIAAuditor GeneralJMS/lm
REPORT TO THEUTAH LEGISLATUREReport No. ILR 2016-BA Limited Review of the Use ofCash Bail in Utah District CourtsFebruary 2016Audit Performed By:Audit ManagerDarin UnderwoodAudit SupervisorJesse MartinsonAudit StaffDerek Olson
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Office ofLEGISLATIVE AUDITOR GENERALState of UtahReport Number ILR 2016-BFebruary 2016A Limited Review of the Use ofCash Bail in Utah District CourtsUtah’s Second, Fourth, Seventh, and Eighth District courts haveused cash bail in an effort to better assure appearances at courthearings. We were asked to perform a limited review of FourthDistrict Court’s cash bail collection from defendants to determinewhether cash bail was used appropriately and if bail proceeds wenttoward restitution for victims.To answer this question, we examined 35 cases from the FourthDistrict Court for which misuse of cash bail was alleged. We found 78percent of cash bail postings were refunded to the payee in full. Noneof the postings were applied toward victim restitution; however,restitution was infrequently ordered in examined cases. State statuteallows the courts to decide whether bail proceeds will be applied tovictim restitution. Our limited review of the Second, Fourth, Seventh,and Eighth District courts found the courts do not frequently use cashbail, but use bonding on a more frequent basis. Statute also enablesjudges to use cash bail in their courtrooms and set the amount of bailto be paid.To determine theeffectiveness of cashbail and its associatedcosts, a full auditapproved by theLegislative AuditSubcommittee wouldbe required.Near the end of our survey work, we were given two additionalquestions about cash bail. We were asked whether cash bail is aneffective tool to ensure a defendant’s court appearance when comparedwith bonding. We were also asked what costs are incurred when usingcash bail versus bonding. However, these questions proved to bebeyond the limited scope of this review. Answers to these questionswould require a more involved, full audit. If desired by theOffice of the Utah Legislative Auditor General-1-
Legislature, further in-depth analysis could be performed to determinethe effectiveness of cash bail use compared to bonding.Second, Fourth, Seventh, and Eight DistrictCourts Use Cash Bail InfrequentlyThe Second, Fourth,Seventh, and EighthDistrict courts do notuse cash bail often.Allegations arose that some Utah district courts were using a cashbail-only option in lieu of bonds. We looked at four district courtsalleged to have improperly used the cash-bail-only option: the second,fourth, seventh, and eighth districts. We found the districts in questionuse cash bail less frequently than bonds. Figure 1 shows how oftencash bail and bond were posted in these districts during January 2015.We looked only at counties within the districts that have largerpopulations.Figure 1 In January 2015, the Second, Fourth, Seventh,* andEighth District Courts Used Cash Bail Less Frequently thanBonds. District courts encompass multiple counties; we reviewed asample of cases in the counties with larger populations.Cash BailBondPercentCash BailSecond District (Weber County)5499%Fourth District (Utah County)138913%Eighth District (Uintah County)203636%District Court***Note: Seventh District Court data was not included in Figure 1 because it was insufficient. However, SeventhDistrict judges reported that they do not frequently use cash bail.**Note: The totals noted for the respective districts do not represent totals for each district as a whole. Thetotals are from courts within the districts that serve larger populations.Source: Second District, Fourth District and Eighth District courts’ recordsFigure 1 shows that the second, fourth, and eighth district courts usedbonds more frequently than cash bail during January 2015. In sum,we found these districts used bonds 82 percent of the time and cashbail 18 percent of the time. The Seventh District Court was notincluded because its cash bail and bonds are not tracked beyond sixmonths. For example, if cash bail or bond was issued, in this case, inJanuary, and a prosecutor did not file within 120 days, then the bondwould have been destroyed because the bail was no longer valid or thecash bail would have been fully refunded. However, Seventh Districtjudges we spoke with indicated that they infrequently use the cash bailoption.-2-A Limited Review of the Use of Cash Bail in Utah District Courts (February 2016)
Cash Bail Collected in Fourth District CourtAppears to Be Set and Used AppropriatelyWe found that the Fourth District Court uses cash bail, but doesnot misuse the bail proceeds it collects from defendants. During ourreview of Fourth District cases, 35 of which were provided byinterested stakeholders, we found all refunded bail was returned to therespective payees in full. We did not find any instances where bailmonies went toward victim restitution. State statute allows the courtsto apply bail toward restitution, fines, and fees incurred by thedefendant. Statute also allows judges to use cash bail and enables themto set the amount of bail to be paid by defendants.Review of Fourth District Court CasesRevealed No Misuse of Cash Bail MoniesThe Fourth District Court was accused of not applying bail moniestoward restitution, fines, and fees assessed against defendants.Interested stakeholders provided 35 Fourth District Court cases aboutwhich they were concerned whether collected cash bail was being usedappropriately. We reviewed the cases involving cash bail postings andfound no evidence of misuse of cash bail monies. Figure 2 shows thenumber of cases for which cash bail was posted at least once.We found no evidenceof misuse of cash bailamong the FourthDistrict Court casesreviewed.Figure 2 Twenty-Five of the Cases Provided to Us Had CashBail Posted at Least Once.CasesCases ProvidedCases Did NOT Exist or Bail was NOT PostedCases in Which Cash Bail Was Posted at Least OnceCount35-1025Source: Auditor Analysis of Fourth District CasesWe found that cash bail was posted at least once in 25 casesprovided by the stakeholders. We were unable to find cash bailpostings for the remaining 10 cases. These cases either did not involvebail postings or were not actual Fourth District Court cases. Of the 25cases for which cash bail was posted at least once, 27 postingsoccurred. Bail posting counts differ from case counts because a casecan have multiple instances where a defendant (or someone acting ontheir behalf) posts bail. For instance, we identified two cases in whichbail was posted twice by someone on the respective defendant’s behalf.Office of the Utah Legislative Auditor General-3-
These 2 cases brought total bail postings to 27 for the 25 cases. Figure3 shows how many of the 27 postings were refunded to the payee.Figure 3 Twenty-One of the Twenty-Seven Cash Bail PostingsWere Refunded to the Payee.Bail PostingsCountCash Bail Postings*27Cash Bail Postings NOT Refunded-6Number of Cash Bail Postings Refunded21*Note: Bail was posted twice in two cases.Source: Auditor Analysis of Fourth District CasesIn the cases reviewed,roughly 78 percent ofcash bail posting hadbeen refunded to thepayee.-4-As shown in Figure 3, 21 of the 27 bail postings were fully refundedto the payee, for a refund rate of approximately 78 percent.Conversely, 6 of the 27 bail postings were not refunded, though oneposting of the six was belatedly refunded after a clerical error wasdiscovered. Refunds were not provided for the following reasons: Two Bail Forfeitures Occurred. Two postings were declaredforfeitures by the court, and the funds were transferred to theState of Utah General Fund. In both instances, the defendantsfailed to appear for hearings, prompting the forfeited bail. Two Bail Refund Checks Returned to Court. The court sentbail refund checks to payees for two separate bail postings. Thechecks were returned to the court because the payees no longerlived at the addresses provided. The postings are currently heldin the Fourth District Court’s trust account and will enterunclaimed property proceedings if unclaimed. One Bail Post Initially Not Refunded Because of ClericalError. One bail posting had not been refunded because of aclerical error by court staff. Our inquiry into the case led to thediscovery of the error. We found that the court clerk had notinformed court accountants that the defendant had beensentenced and bail needed to be refunded. Court staffeventually corrected the error, with bail proceeds being fullyrefunded to the payee; this late refund is not included in the 21cases that were initially determined to have been paid in full tothe payee.A Limited Review of the Use of Cash Bail in Utah District Courts (February 2016)
One Case Still Pending. One bail posting has not beenrefunded because the case is pending. The defendant failed toappear for a court hearing, which led to a warrant being issuedfor the defendant’s arrest. The warrant is currently active.Cash Bail Proceeds Were NotApplied Toward Victim RestitutionThe Administrative Office of the Courts claims that cash bail isadvantageous because bail monies can be applied to victim restitutionand court fines. We found that all 21 bail postings previouslydiscussed were refunded in full to the payee and not applied towardvictim restitution. However, restitution was not ordered in themajority of cases involving the 21 postings. We identified fourinstances where restitution was ordered by the judge; in all fourinstances, proceeds from the postings were not applied towardrestitution. We also reviewed the cases to determine if bail was appliedto fines incurred by the defendants. We found fines were ordered bythe judge in the majority of the cases, but in every instance, bail wasnot applied toward the payment of the fine.Bail proceeds were notapplied to victimrestitution in the casesreviewed; however,restitution wasinfrequently ordered.The postings discussed above were from cases provided by thestakeholders. These cases were hand-selected by the stakeholders andoccurred throughout 2014. As a result, we found it necessary toconduct an independent review of Fourth District Court cases fromUtah County to better determine if cash bail proceeds were appliedtoward victim restitution and fines incurred by defendants. We found13 cases for which cash bail was posted once per case during January2015. Restitution was ordered in two cases, but bail proceeds werenot applied toward restitution. Fines were ordered in six cases withone instance where bail was applied toward the fine.Results of our limited independent review of cases were similar toresults for the cases provided by the stakeholders. Bail proceeds werenot applied to victim restitution; however, restitution was notfrequently ordered by judges. A full audit would be needed to furthervalidate the results of this limited review.Courts Are Not Required to ApplyCash Bail Proceeds Toward RestitutionThe courts are under no legal obligation to apply the proceeds ofcash bail toward victim restitution and fines imposed on defendants.Office of the Utah Legislative Auditor General-5-
Regarding the application of cash bail toward restitution and fines,Utah Code 77-20-4 states:Utah Code does notrequire the courts toapply cash bailproceeds towardrestitution, fines, orfees owed by thedefendant.(5) Before refunding bail that is posted by the defendantin cash, by credit card, or by debit card, the court may[italics added] apply the amount posted toward accountsreceivable, as defined in Section 76-3-201.1, that areowed by the defendant .Accounts receivable, as defined in Utah Code 76-3-201.1, consist of“ unpaid fees, overpayments, fines, forfeitures, surcharges, costs,interest, penalties, restitution to victims .” According to statute, thecourts may apply refunded bail toward the defendant’s restitution,fines, and fees, but are under no legal obligation to do so. The Officeof Legislative Research and General Counsel (OLRGC) confirmed ina legal opinion that judges can apply cash bail towards accountsreceivable but are not required to do so (see Appendix). Therefore, weconclude that the Fourth District Court’s handling of cash bail in thesecases was consistent with state statute.Judges Are Allowed to UseCash Bail Under Utah CodeCash bail is an alternative that judges can use in addition tobonding. A prosecutor can request the option of cash bail, then thejudge can choose to utilize this option. Bail can be used to allowaccused individuals to be released on their own recognizance asindicated in Utah Code 77-20-3:Utah Code allowsjudges to use cash bailand set the amount tobe paid.(1) Any person who may be admitted to bail maylikewise be released on his own recognizance in thediscretion of the magistrate or court.(2) After releasing the defendant on his ownrecognizance or admitting the defendant to bail, themagistrate or court may:(a) impose bail or increase or decrease the amount ofthe bail Therefore, the court can determine the amount of bail required toallow an accused individual to be released. State statute grants theability to use cash bail under Utah Code 77-20-4: “(1) Bail may beposted: (a) in cash .” According to the legal opinion we receivedfrom OLRGC, cash bail is allowed under this provision (see-6-A Limited Review of the Use of Cash Bail in Utah District Courts (February 2016)
Appendix). The Administrative Office of the Courts corroborated thisopinion as well. The judge is given the authority to determine theamount of bail and can accept cash as an alternative. We conclude that,despite allegations that cash bail is disallowed, judges can exercise theirdiscretion by using cash bail.Unknown Impact of Cash Bail Use on CourtAppearance Rates and Court System CostsBecause of the limited nature of our review, we were unable toanswer the questions that were raised toward the end of our surveywork. These questions are whether cash bail is effective at ensuring adefendant’s appearance in court, and what is the cost of cash bail useon the court system and law enforcement. Our review of casesinvolving cash bail provided conflicting results regarding itseffectiveness at ensuring court appearance. We were also unable todetermine if cash bail use increased court and law enforcement costs.To answer these questions, a full audit could be performed if it is thewish of the Legislative Audit Subcommittee. The Utah JudicialCouncil produced a report that assessed the effectiveness of bonds atensuring court appearance, but not the effectiveness of cash bail. Itappears the Council wants to strengthen the efficacy of bonds.Effectiveness of Cash Bail at EnsuringCourt Appearance Could Not Be DeterminedWe attempted to review the efficacy of cash bail at ensuringdefendants appear in court. Concerns exist that increased use of cashbail escalates the number of failed appearances by defendants, therebyincreasing costs to the court system and law enforcement to locatemissing defendants. As mentioned, we received 35 cases selected bythose alleging the ineffectiveness of cash bail to ensure a defendant’sappearance in court. These cases were identified as having been filedand adjudicated in the Fourth District Court. Our review found that32 of the 35 cases had indeed been filed and adjudicated in the FourthDistrict Court, as shown in Figure 4.Office of the Utah Legislative Auditor GeneralInterestedstakeholders gave us35 hand-picked cases,alleging that cash bailwas ineffective atensuring courtappearances.-7-
Figure 4 Twenty-Five of the 35 Cases We Reviewed Had atLeast One Cash Bail Posting.CasesCountCases Provided35Cases NOT Verified as Fourth District Court Cases-3Cases Verified as Fourth District Cases32Cases Where Bail Was NOT Posted-7Cases Involving at Least ONE Cash Bail Posting25Source: Auditor analysis of Fourth District Court casesWe were unable to verify three cases because case numbers andcourt records were not found. Cash bail had been set in all 32 verifiedcases, but defendants in 7 cases did not post bail. Two defendantswere released on their own recognizance, while the others may nothave had funds available to post bail. Conversely, defendants (orsomeone acting on their behalf) posted bail in 25 cases.Most of the handpicked cases hadinstances where thedefendant did notappear in court.-8-We assessed the 25 cases involving cash bail postings to determineif cash bail ensured court appearances. We found that most cases hadinstances where the defendant did not appear for scheduled court datesafter posting cash bail. However, these cases were hand-selected by thestakeholders to demonstrate this fact and were dated throughout the2014 calendar year. We did not review all the cash bail received in2014 to determine the rate of appearance. To determine if failures toappear consistently occur, we independently reviewed cases from theFourth District for which cash bail was posted during January 2015.As seen in Figure 5, our review of the hand-selected cases and casesthat we independently verified produced conflicting results. The casesprovided by the stakeholders suggest cash bail is ineffective at ensuringcourt appearance, while the cases from January 2015 suggest cash bailis effective.A Limited Review of the Use of Cash Bail in Utah District Courts (February 2016)
Figure 5 Defendants Who Posted Bail in Utah County duringJanuary 2015 Appeared for Their Next Court Date 100 Percentof the Time.PostingsDefendant Appeared inCourt After PostingAppearanceRateCash Bail1313100%Bond8977Type87%thNote: The totals listed are from Utah County courts in the Utah 4 District CourtSource: Fourth District Court recordsThe appearance rate for cash bail was actually higher than bonds. Wefound 13 instances where cash bail was posted for defendants. In eachinstance, the defendant appeared for a court meeting scheduled shortlyafter bail was posted; those who posted bonds had a lower appearancerate than those who posted cash bail. We must note that we did notreceive or review any bond appearance rates for 2014, thus making acomparison between the two unfeasible. As our review was limited,we were unable to conduct a more intensive assessment of casesinvolving cash bail. Therefore, a more in-depth review is needed todetermine the efficacy of cash bail at ensuring defendant appearance incourt.Those who postedcash bail appeared incourt more frequentlythan those who postedbonds.Costs of Cash Bail Use on Court System andLaw Enforcement Could Not Be DeterminedStakeholders expressed concerns that increased cash bail use wouldincrease costs to the court system and law enforcement as a result ofmore defendants failing to appear in court. Because of the limitednature of our review, we were unable to determine the financialimpact of cash bail use on the court system and law enforcement. Sucha study would require robust analyses of potential costs to bothentities.Our limited review didnot allow us todetermine the fina
the effectiveness of cash bail use compared to bonding. Second, Fourth, Seventh, and Eight District Courts Use Cash Bail Infrequently Allegations arose that some Utah district courts were using a cash-bail-only option in lieu of bonds. We looked at four district courts
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