Rules of Criminal Procedure – Comment Period Closed September 1, 2019

Comment: Proposed Criminal Rules 9 and 9A
Judge Derek P. Pullan
Fourth District Court Judge

Problems with Rule 9

The proposed rule requires that a person who remains in custody 24 hours after a warrantless arrest must be charged by information “without delay, and no later than the fourth calendar day after [he] was arrested.” URCrP 9(c)(3). The old rule imposed a consequence for not filing timely–the arrested person was released on his own recognizance. The new rule eliminates this language.

The new rule then adopts a five-calendar day failure to file deadline in subsection (d). The rule provides if a person is incarcerated on a warrantless arrest and cannot post bail, “he shall appear before the court that issued the warrant within five calendar days after the person was arrested. If an information has been filed, initial appearance is conducted. If no information has been filed, the person is released.

So there is an inherent conflict in the rule. Subsection (c)(3) imposes a four-day failure to file deadline, with no consequence for not filing timely. Subsection (d) then imposes a five-calendar day failure to file deadline, this one with the “teeth” of own recognizance release for violating it. As a practical matter, the proposed rule extends the failure to file deadline from four calendar days to five. The effect of this extension is to permit low-risk offenders to be held in jail for one additional day without any charge being filed.

The proposed rule also creates additional problems. When combined with Rule 9(c)(4)—(which allows the deadline to be extended to “5:00 p.m. on the next business day” when the failure to file deadline expires on a weekend or legal holiday)—the new rule permits a person who cannot make bail to remain in jail uncharged for up to nine days. A person arrested on the Monday before President’s Day at 6:00 a.m. will remain in jail, uncharged until the next Tuesday before appearing before the Court and being released. During this period of time, low-risk offenders—many of whom will appear in justice courts on minor offenses—who pose no threat to public safety will lose their jobs, lose their housing, and go off prescribed medications intended to treat mental health conditions. All of these life disruptions starkly increase the risk of recidivism. We can do much better than this.

There is no persuasive reason why the failure to file deadline cannot be two calendar days after the date of arrest. Yes, there will be complex cases in which more time will be needed to screen the case and file. But these cases are relatively rare and the rule allows for an extension of time for good cause. Rules should be drafted to deal with what commonly occurs in most cases, and then provide narrow exceptions for the rare case.

Problems with Rule 9A

The proposed rule requires that when a person is arrested on a warrant and cannot post bail, “the court must conduct an initial appearance or arraignment within three calendar days after the person was “booked.” URCrP 9A(b)(1). The rule defines “booked” to mean not only that the arrested person “has been processed into a jail” but also that “notice of the incarceration has been provided to the court that issued the warrant.” URCrP 9A(a)3).

The problem is in the definition of “booked.” The definition of “booked” is written in the passive voice which means that no one is specifically tasked with the duty to provide the Court with “notice of the incarceration.” Who does this–the arresting officer, booking staff at the jail, the prosecutor? With no one identified as the person responsible for notice, notice will not be given and a person–who is physically incarcerated–will languish in jail because he has not been “booked” for purposes of Rule 9A.

Rule 9A also permits an arrested person to be incarcerated for seven days before initial appearance. This is so because, if the three calendar day deadline for initial appearance “expires on a weekend or legal holiday” the time is extended to “5:00 p.m. on the next business day.” URCrP 9A(b)(2). This means that a person arrested on the Wednesday before President’s Day at 6:00 a.m. will not have her initial appearance until the next Tuesday. Again, during this week of incarceration, low risk offenders—many of whom will appear in justice courts on minor offenses—who pose no risk to public safety lose their jobs, lose their housing, and go off prescribed medications intended to treat mental illness. These losses significantly increase the likelihood of recidivism. We can do much better than this.

Absent the need for transportation to the warrant-issuing jurisdiction, there is no persuasive reason why persons arrested on a warrant cannot appear for initial appearance on the next court day.

In some parts of rural Utah, criminal first appearances may be held on only one or two days per week. But this practice needs to change. In many areas of the state, judges can now conduct initial appearances by telephone, video-conferencing, closed circuit television, or other electronic means. Given the availability of this technology, there is no reason why court cannot be conducted on every day of the work week in almost all court sites statewide.

There may be remote jurisdictions that do not presently have access to these technologies. But the answer for this problem is to provide access, not to adopt a rule that grounds pre-trial release and filing deadlines on procedures followed in the least-resourced areas of the state.

The District Court Board’s Prior Recommendation And What Followed:

In May 2015, after conducting a state-wide survey of the procedures followed in each district, the District Court Board unanimously recommended that the judiciary adopt a uniform process for reviewing probable cause statements, setting bail, and scheduling initial appearances. One of the Board’s recommendations was that informations be filed within 72 hours of booking. The Board’s findings and recommendations were presented in a memorandum directed to the Chief Justice.

The Court ultimately adopted Rule 9 which required informations to be filed by 5:00 p.m. on the fourth calendar day after a warrantless arrest. URCrP 9(c)(3). If this deadline was not met, the release conditions automatically reverted to own recognizance release. The Court adopted Rule 9A which required that people arrested on a warrant to be presented to a magistrate within 24 hours after arrest. URCrP 9A(b). The magistrate could modify the release conditions. If the arrested person remained in custody after this review process, he or she had to be seen by the court issuing the warrant no later than the third day after the arrest. URCrP 9A(d).

The 5:00 p.m. deadline in Rule 9 created procedural havoc because courts close at 5:00 p.m. There was no mechanism for automatic release if the deadline was not met. Clerks were reluctant to issue orders of automatic release. With no information filed, there was no case file in which such orders would be kept. As for Rule 9A, no accommodation was made for people arrested on a warrant far from the issuing court. In such instances, personal appearance within 3 days before the issuing court proved impossible. These and other concerns made rules 9 and 9A unworkable and both rules were temporarily suspended.

The Board’s endorsement of proposed Rules 9 and 9A is a good faith effort to address some of these important concerns. But the endorsement perpetuates the original decision to depart from the Board’s first recommendation. Whatever rule we adopt should place a high priority on getting arrested people before the Court sooner, not later. Failure to achieve this fundamental goal means that the criminal justice system is creating the very criminogenic risk the system is intended to prevent.

In light of the failure of the proposed rules to meet this critical objective, I recommend that both rules be resubmitted to the Utah Supreme Court’s Advisory Committee for further review and consideration.