| OCR Text |
Show O?or O Against () Proposition No. 1 BAIL AMENDMENT Vote cast by the members of the 1988 Legislature on final passage: HOUSE (75 members): Yeas, 63; Nays, 4; Absent or not voting, 8. SENATE (29 members): Yeas, 26; Nays, 0; Absent or not voting, 3. Official Ballot Title: Shall the Utah Constitution be amended to allow bail to be denied to persons charged with a serious crime if the person may be a danger to another person or to the community, or is likely to flee the court's jurisdiction if released; and to clarify language regarding necessary evidence evi-dence to deny bail? IMPARTIAL ANALYSIS The state constitution presently allows judges to deny bail to persons who have been charged with: (1) a capital offense; or (2) a felony while on probation or parole or while free on bail awaiting trial. Proposition 1 adds one more circumstance under which bail may be denied: (3) persons who have been charged with a crime when there is clear and convincing evidence that the person would constitute a substantial danger to others or the community, or is likely to flee the court's jurisdiction if released on bail. Proposition 1 also requires the Legislature to designate the specific crimes for which bail may be denied under this third condition. The Legislature has already passed legislation designating felonies as the only crimes for which bail may be denied. This legislation is not effective unless the voters approve Proposition 1. Proposition 1 clarifies the constitutional bail language in two additional ways: (1) It changes the phrase "accused of the commission" of a crime to "charged with" a crime. The second phrase is more commonly used. (2) It changes the phrase "when the proof is evident or the presumption strong" to "when there is substantial evidence." The second phrase is more commonly used and understood by the courts and attorneys. Proposition 1 also adds to the state constitution the Legislature's current power to statutorily provide or deny bail for convicted persons. The current state constitution does not address the issue of bail for convicted persons awaiting an appeal. Current statute, however, allows judges to detain convicted persons if the person would constitute a danger to others or the community, or is likely to flee the court's jurisdiction if released. Effective Date Proposition 1 takes effect January 1, 1989. The implementing legislation takes effect on that same date if Proposition 1 is approved by the voters. Fiscal Impact There is no impact on state revenues but there may be some additional county jail costs of up to $13,000 statewide. Arguments For The right to bail of criminally accused persons granted by the Utah Constitution goes far beyond the bail rights guaranteed guaran-teed by the U.S. Constitution. The current bail provision of the Utah Constitution guarantees bail to ALL prisoners except those charged with capital murder, parolees, and probationers. As a result, almost any prisoner charged with a crime has the constitutional right to bail in Utah regardless of the seriousness of the crime charged and without regard for the fact that the person may be a danger to the community if allowed to roam free. These provisions of the Utah Constitution are far more liberal than the bail rights guaranteed in the U.S. Constitution. The Utah Constitution does not give judges the ability to deny bail when warranted. The present bail provisions of the Utah Constitution do not give Utah judges the discretion to deny bail for charges involving serious offenses such as second degree murder, criminal sexual abuse, rape, and other felonies. As a result, many dangerous persons charged with serious violent crimes are allowed to roam the streets of our cities. Judges should be allowed to deny bail to persons who present a clear and present danger to the community. While the rights of criminal defendants are important and should continue to be considered, the general public and victims also have rights that must be protected. Persons who have been charged with serious crimes should not be allowed to continue to commit crimes against innocent victims while awaiting trial. Judges should be allowed to deny bail to persons who are likely to flee the jurisdiction of the court. The Utah Constitution currently guarantees the right to bail for nearly all persons charged with a crime, even if those persons have shown in the past that they are likely to flee the jurisdiction of the court at the first opportunity. Judges should be given the discretion to deny bail in these cases in order to prevent circumvention of the I criminal justice process. I In addition to the arguments stated, Proposition 1 would also: I 1. Give judges the right to deny bail only if certain factors and I criteria are present. Bail for most offenses would still be allowed. 2. Remove unreasonable restrictions on the discretion of judges I by allowing bail to be set in Utah in a manner similar to that I used by federal judges. I A vote for Proposition 1 is a vote for the victimsof crime and I for judicial restraint and efficiency in the criminal bail process. Vote FOR Proposition 1! Senator Winn L. Richards 5301 Old Post Road Ogden, Utah 84403 Senator Darrell G. Renstrom 1145 East 1675 North North Ogden, Utah 84404 7 Rebuttal to Arguments For Proposition So. J Proponents of Proposition 1 beg the fundamental issues, and err in argument. Right to bail in Utah does not go "far beyond the bail rights guaranteed by the U.S. Constitution." The Eighth Amendment simply states that "Excessive bail shall not be required, nor excessive fines imposed..." The Fourteenth Amendment applies this guarantee to the states, so that Utah, as well as Alabama, South Carolina, and Texas, must meet this minimum standard. States are free to give the accused more protection than the federal minimum. What is of concern here is the new language, not addressed in proponents' argument, as to how a "substantial J evidence" standard affects our fundamental right to be free from j incarceration while still presumed innocent. 1 Proponents appear to support a "police state" mentality i where anyone the "authorities" deem "dangerous" can be j locked up indefinitely in crowded, unwholesome, and often j violent jails, away from their families. Often the decision to 1 incarcerate lies more with the accused's non-conformity, poverty, I appearance, or other arbitrary reason. Let's not let our fundamental freedoms get diluted any more. Utah has too many problems with a backward image already, even though its existing constitution and appellate courts are probably of national envy. Let's not regress to the level of the pre-sixties American South. A vote AGAINST Proposition 1 is a vote for liberty; for constitutional law; for our great republic; and most of all for the best Utah has to offer. R. Clayton Huntsman, Attorney 1 2 West St. George Boulevard jS Ancestor Square, Suite 31 g St. George, Utah 84770 j i Arguments Against i The right to reasonable bail goes back to our revolution. I The cavalier manner in which the British arrested and confined I our people aroused such resentment that when we finally got free we said, "never again" and confirmed the right to bail in y the Eighth Amendment to our new constitution. State v. Boyle defines bail's purpose: "to assure the I presence of the accused at trial." Not "criminal," "guilty party," j or "prisoner" but "accused." Our courts still try to maintain I what is often forgotten: the presumption of innocence. I Louisiana recently tried to abridge the right to reasonable j$ bail. The U.S. Supreme Court, in the landmark case of Duncan v. '4 Louisiana, held that Louisiana's refusal to accept certain f property pledged as bail was unlawful, "in bad faith and for Pj purposes of harassment." Every year someone tries to erode our fundamental 'f- freedoms. Police want to abridge our right to bear arms. The i giant insurance companies would deny us access to the courts through "tort reform." And now, in a topsy-turvy Alice-in-Wonderland scenario, some would have the punishment first and then trial for accused fj citizens, by denying bail, tj Read the proposed bill carefully, jj! Consider Sec. 8(1 )(a), where "substantial evidence" re- places "proof is evident or where the presumption strong." fi What is "substantial evidence?" Words can be manipulated $ to mean whatever anyone judge, dictator, general wants H them to mean. As another odd character from Alice said before g his celebrated fall, "When I use a word, it means exactly what I ; want it to mean no more and no less." f' Humpty-Dumpty articulates a court's power to invent meaning capriciously: guilty is innocent, jail before trial I even while the accused is still presumed innocent. Why? This standard is not only vague, but is also less rigorous than !(; "beyond a reasonable doubt." $ What is "substantial evidence?" Possession of a hunting $ weapon? Being a passenger in a vehicle carrying improperly jjjj tagged deer or untaxed jewelry? I, Also alarming is the prospect that one can be denied bail for any crime if the court also finds by "clear and convincing evidence that the person would constitute a substantial danger !ti to any other person or to the community or is likely to flee the P jurisdiction if released on bail." (J Adequately high bail already deters flight from the jurisdiction for most crimes. But should we all be at risk just to make it slightly more difficult for a suspect to flee? Should the possibility that the accused, when arrested, may have been in II possession of a fishing knife, deer rifle, prescription pills, or il other "evidence" of "destructive tendencies" toward others, be ' used as pretext to incarcerate in an overcrowded jail until trial, i which may be next year or in ten years? :' And with Utah's financial resources dwindling along with our constitutional rights, can we really afford increased pre- ) trial detention? i Don't let the state further erode your fundamental rights, ' and increase your tax burden. I Vote AGAINST Proposition 1! If R. Clayton Huntsman, Attorney jjj 2 West St. George Boulevard i -l Ancestor Square, Suite 31 j 'j St. George, Utah 84770 i i-nimiirmnmriin mm rrrmmiiuiii mm otwi imm i im FOTfflninr!rffr"" """""""'l Rebuttal to I Arguments Against Proposition A'o. 1 t I Proposition 1 protects the rights of victims! While we ijj should all be concerned with preserving the right to bail of accused persons, we must also protect the rights of victims. Certainly a victim of violent crime, who is scheduled to be a witness in an upcoming trial, deserves the right to be free from ! fear and intimidation. Mandatory bail for the accused often ? results in the infringement of this right. Also, what is "reasonable" bail for one person may not be "reasonable" for another. To prevent an accused from fleeing the court's 1 jurisdiction, one thousand dollars may be unreasonably high for someone whose total resources are the clothes on his back. But one million dollars may not be high enough for a person involved in drugs or organized crime. I Proposition 1 revises the Utah Constitution to bring it in 1 line with bail practices allowed under federal law. Under f federal law, judges can deny bail for accused persons who are I dangerous. Proposition 1 simply gives Utah judges the same power. i Proposition 1 provides clear standards of evidence that j do not infringe upon the presumption of innocence. Under Proposition 1, in order to deny bail a judge must find "substantial evidence" to support the charge and "clear and 1 convincing evidence" that the accused is dangerous. These are much more clear standards than the present "proof is evident or 1 presumption strong" standard. Also, by requiring both standards 1 to be present, the presumption of innocence is protected. Vote FOR Proposition 1! 1 Senator Winn L. Richards 1 6301 Old Post Road 1 Ogden, Utah 84403 1 Senator Darrell G. Renstrom 1145 East 1675 North North Ogden, Utah 84404 i I I COMPLETE TEXT OF PROPOSITION NO. 1 f) BAIL AMENDMENT 'J A JOINT RESOLUTION OF THE LEGISLATURE PROPOSING TO AMEND THE UTAH CONSTITUTION; RELATING TO BAIL; SUBSTITUTING THIS RESOLUTION FOR A RESOLUTION PASSED AT THE 1988 GENERAL SESSION OF THE 47TH LEGISLATURE; AND PROVIDING AN EFFECTIVE DATE. THIS RESOLUTION REPEALS AND WITHDRAWS ENROLLED COPY S J.R. NO. 3 PASSED AT THE 1988 GENERAL SESSION OF THE 47TH LEGISLATURE AND REPLACES IT WITH THIS RESOLUTION, RES-OLUTION, AND PROPOSES TO CHANGE THE UTAH CONSTITUTION CON-STITUTION AS FOLLOWS: AMENDS: ARTICLE I, SEC. 8 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each of the two houses voting in favor thereof: Section 1. It is proposed to amend Article I, Sec. 8, Utah Constitution, to read: Sec. 8. fJJ All prisoners 1 persons charged with a crime shall be bailable by sufficient sureties, except forj: (a) persons charged with a capital offenses offense when the proof is evident r the presumption strong of where a person is accused of the commission of there is substantial evidence to support the charge: or (b) persons charged with a felony while on probation or parole, or while free on bail awaiting trial on a previous felony charge' and where the proof is evident or the presumption 3troitg when there is substantial evidence to support the new felony charge 91 (r ) persons charged with any other crime, designated hystatnto as one for which bail may be denied, if there is substantial evidence to support the, charge and the court finds by clear and convincing evidence that the person would constitute a sub; stantial danger to any other person or to the community nr it likely to flee the jurisdiction of the court if released on hail (2) Persons convicted of a crime are bailable pending apjwal only as prescribed by law. Section 2. Enrolled copy S.J.R. No. 3 passed at the 1988 General Session of the 47th Legislature is repealed and withdrawn in its entirety from the next general election. Section 3. The lieutenant governor is directed to submit in hen thereof this proposed amendment to the electors of the state of Utah at the next general election in the manner provided bylaw Section 4. If approved by the electors of the state the amendment proposed by this joint resolution shall take effect nn January 1, 1989. ))) |
