Photo: Utah Department of Corrections/Flickr

When a magistrate denied bail for a man in Kearns, Utah, last summer, he had no choice but to go to jail. He had no money to make bail: His only collateral was his fiancée’s car. After spending a week behind bars—and, in one case, picking up a roommate—he was eventually released with $2,000 bail, leaving him a third of the way to not being forced to pay back a loan from payday lenders—himself.

The arrest sparked a debate over whether or not bail should be available to jailers—on whether the credit-card companies that offer these loans are making the system inequitable.

Responding to the man’s lawyer’s request, the Supreme Court of Utah issued a ruling in a recent case that basically said “we don’t care what you think.” Bail money belongs to the borrowers, so when judges refuse bail, they must provide enough bail to make sure the accused shows up for trial. If they don’t, the court’s ruling effectively prevents them from collecting money, forfeiting the bail money for good. (If you ask me, this ruling should be overturned.)

In a letter written this week to constituents, Rep. Julie Fisher-Brambleton of Murray, Utah, a Republican, wants to make sure bail is paid for by the loan companies that take money from borrowers. In her HB 42 bill, Fisher-Brambleton is calling for a lending fee to be tacked onto borrowers’ bail amounts. She suggests that every payday lender that takes money from a person jailed should be liable for the entire debt.

This approach is backed by a Utah lawmaker who introduced a similar bill, too. District Representative Brad Daw, who is also a Republican, supports a fee on payday lenders that collects for the jail and appeals court systems that take the money.

Meanwhile, on a national level, a common borrower has discovered that even if bail is posted, many payday lenders simply demand payment of the full amount of the loan before their borrowers can be released from jail. People who don’t have access to funds that can easily be arranged through a temporary employer might not know about these requirements.

And, Fisher-Brambleton’s bill doesn’t address that problem: A borrower named Juan would not receive a $36-a-day fee and be allowed to pay it back over 20 installments with the help of the state’s Department of Corrections.

Fisher-Brambleton says that Juan had tried to pay the $1,500 he owed but couldn’t without having to declare bankruptcy. Her bill aims to make sure that those who can’t pay the $36 a day could return to court on an upcoming date, instead of seeing the state seize their money. In many jurisdictions, if a first felony isn’t prosecuted or if the defendant is sentenced to probation or a jail term, the state has no legal way to seize the money collected from the loan.

Some might call the bill an unjust move to make sure the poor are able to get bail money. The low-income people of this nation need bail reform, but I’d encourage Rep. Fisher-Brambleton to keep a few details in mind about how she might affect their access to bail.

The principle of it still stands. A large percentage of those charged with a misdemeanor are poor. It’s tough to collect on a bad credit score.

The question isn’t what kind of sentence defendants get for failing to pay bail: It’s what kind of justice we think in a free society.

Fisher-Brambleton’s bill has already drawn criticism. It’s being met with argument that it would punish people on the wrong side of a law—as opposed to people who flout a law in the first place—and that it could be manipulated.

During her visit to the local FOX 13, Sen. Luz Robles, a Democrat, introduced an amendment in the Senate State and Local Government Committee that would prevent bail amount requirements. It failed. Fisher-Brambleton’s bill is going forward to the appropriations committee.

And the payment requirements seem unfair when it affects innocent people. The bill could easily be added to the state’s forfeiture policy for bank and credit card transactions. If you want to ensure that no one who has done anything wrong can be sued for paying bail, support the bill.

Ken Schwencke writes about economics, politics and the law for Fiscal Times.