Utah Judicial Council Uses Former Enron-Billionaire’s Algorithm To “Fix” The Criminal Justice System as San Francisco Pushes Back

The Utah Judicial Council recently upended criminal justice in Utah by enacting a new statewide bail schedule that became effective on October 1, 2020.  The bail schedule used to be based on the severity of the crime.  Now it is based solely on two factors—how much annual income a person makes and the numeric risk score of the Arnold Foundation Public Safety Assessment, a bail algorithm crafted by a former Enron billionaire and hedge fund manager.

What the crime is or how much damage was done to a victim is simply not a consideration.  In fact, with the enactment of the new schedule, Utah is now only one of five states that do not allow for consideration of public safety for purposes of setting bail.  In addition, the Utah Judicial Council has capped the maximum bail at $5,000 in Utah, with most bails to be $500 or lower, even for the most severe or violent felonies, including forcible rape, assault, or prior felons in possession of firearms.

While prosecutors could theoretically attempt to deny bail, it just doesn’t happen in Utah, and it is not going to happen.  Utah Representative Eric Hutchings asked the Judicial Council this precise question on July 2, 2020: “When considering the dangerous or violent nature of the individual, how difficult is it to do a no-bail hold? It is my understanding that release is required except under the most egregious circumstances. There is a Constitutional right to be released from incarceration.  How do we communicate information about whether or not someone is dangerous? We ran into this when we first started screening individuals under JRI. Law enforcement was extremely upset and felt that people were getting out of jail that shouldn’t be. How do we manage that concern and do we have the constitutional authority to broadly issue no-bail holds?”

The answer, from Judge Harmond, to the concern was: “The matrix will not prevent a no-bail hold.”  Which is a non-answer.  Of course, Rep. Hutchings then pointed out that, “I am not concerned about the visceral part, I am concerned about when a murder occurs after someone is released on a low bail amount causing a policy shift based on anecdotal stories - the scary factor. We received a lot of angry feedback from law enforcement after JRI [Justice Reinvestment Initiative]. Some included real life stories. We will be dealing with reality and perception.”

In other words, Judge Harmond did not answer the question, can the courts broadly issue no bail holds?  We’ll answer for him: judges cannot do broad-based no-bail holds in Utah, meaning the most “egregious” of offenders will get out for $5,000 or less.  Jeffrey Epstein and Harvey Weinstein come to mind, as does Bill Cosby, who would all be counted as low risk by the Arnold Foundation Public Safety Assessment tool.

The Judicial Council’s lawyer, Keisa Williams, also answered Representative Hutchings question, by not answering, but instead admitting that Representative Hutchings was correct—that the new bond schedule and process was indeed fatally flawed: “The matrix is putting a Band-Aid on a broken system. We need start transitioning to a better system.”  But rather than transition to a “better system,” the Judicial Council decided to implement this “band-aid” solution instead.  Why?

The new “reality” is as Representative Hutchings forecasted: that hardened offenders are already walking free on bails that could be collected by simply searching for coins in the couch cushions.  Donald Kingston, arrested and charged with three Felony-1 counts of aggravated sexual assault of a minor on October 9, 2020, had bail set at $1,000 ($100 bail premium), and he promptly walked out of jail to go out and do it again pending trial.  You have the Utah Judicial Council’s new bail schedule and John Arnold to thank.

And what about this Public Safety Assessment (PSA)?  The Arnold Foundation Public Safety Assessment is now under the microscope in none other than the crime ridden city of San Francisco, where the push back on it has begun in light of a statewide ballot initiative.  A recent commentator called the results of the Arnold Foundation in San Francisco a “destructive experiment” that is “incentivizing the criminal trade.”  Somehow the Utah Judicial Council, Representative Stephanie Pitcher, and Judicial Council’s lawyer Keisa Williams believe the results in Utah will be different.  We don’t think so, but sadly law-abiding citizens are now going to be part of this social experiment.

How does the Arnold Foundation Public Safety Assessment work in Utah?  The Judicial Council, as a matter of pride, has allowed the Arnold Foundation unfettered access to the FBI’s NCIC (National Crime Information Center) database through the Utah Courts portal.

Basically, the FBI’s crime files track every arrest and police contact in the United States.  Utah is the first and only state which has allowed the Arnold Foundation to do automated data pulls from the FBI’s crime files to profile people in Utah for purposes of offering them bail.  It is doubtful this is being done in a legal fashion, and no one seems to worry about a private foundation that has a specific agenda then being able to pull and store data from the FBI’s database about potentially every human being living or working in the State of Utah.  The Utah Judicial Council, in fact, thinks it is a great idea, which is why they signed a sole-source contract with John Arnold to give him the direct access.  Originally, the Judicial Council contracted out judicial discretion—requiring state judges to follow what John Arnold’s tool said 80% of the time, but they later removed that provision to protect judicial discretion when faced with criticism from us.  Now, there is no judicial discretion whatsoever—the  Arnold Tool will decide who gets out of jail before they even see a judge.

Once the FBI data is pulled, a score is generated based on nine factors that the Arnold Foundation say will help us predict what is going to happen in the future.  In other words, will someone show up for court or commit a new crime?  John Arnold thinks he can accurately predict human behavior before anyone sees or talks to a criminal defendant.  And apparently so does the Utah Judicial Council, who is making the results of this criminal scarlet letter test mandatory as to what bail will be set in Utah.

In California, however, a recent commentator pointed out that John Arnold has a serious conflict of interest—he’s funding a ballot initiative to force the State of California to use his Public Safety Assessment.  In fact, John Arnold has spent $3.5 million to force judges to use his algorithm statewide by contributing to the campaign to pass Proposition 25.  There’s no reason to think if the Utah Legislature, Governor, or Attorney General were try to stop him, he would do the same thing to the State of Utah.  As has been pointed out, in San Francisco, he is the sole-source provider as he is in Utah.  They didn’t take it out to bid or have any competition.  John Arnold simply got the contract.  It’s also important to point that the Arnold Foundation was turned into a for-profit corporation, Arnold Ventures.  Of course, then John Arnold donated nearly another $1 million to the City of San Francisco.  So, it’s no wonder they like him in the City on the Bay.  Money talks.

In Utah, it’s the same old song and dance for John Arnold, and you can bet if he doesn’t get his way, he’ll write an enormous check and force his way to become law.  He’s already shown that in Utah.  In fact, John Arnold has already donated $6,533,761 in Utah to various groups, including $435,000 to “ensure an accurate vote count” on Proposition 4 in 2018, which was the proposition on redistricting.  Thus, it should come as no surprise that state government bureaucrats love John Arnold and his money.  He’s paying them right now to do the job that judges should be doing, which is even more peculiar since John Arnold has spent over $50 million to eliminate public pensions for government employees throughout the United States.

In short, the Utah Judicial Council has embarked on an experiment that is destined to fail as their lawyer Keisa Williams points out.  It is a band-aid solution in search of a problem.  Lawsuits will be filed, people will be hurt, and a former Enron Billionaire, sitting in his large mansion in Houston, will feel no pain or discomfort when it is shown that it didn’t work.  He’ll just call up the Judicial Council and remind them what Keisa Williams told the Judicial Council: “You know the Arnold Foundation is pushing and they require us to do some sort of a community and media outreach plan and so how we do that delicately without getting some crazy litigation or legislation passed, not sure, but we're working on that.”

So, if you hear the Judicial Council or state judges defend John Arnold, keep one thing in mind—they are required to defend him and his tool by the contract they signed.  Why the legislature, law enforcement officers, the Governor, and local officials are putting up with this is beyond us.  It’s time for the legislature to step in and put an end to the destruction of criminal accountability and put the Utah Judicial Council on notice that these computer generated soft-on-crime policies will not stand in Utah.