Are Washington’s rules for bail unfair? WA Supreme Court hears arguments

Washington’s state Supreme Court is considering major rule changes that could lead to lower, and less, bail set for criminal defendants. 

Public defenders support the changes. Public prosecutors don’t. The two sides made their cases to the court’s justices Tuesday. 

Defense attorneys argue the current bail system disproportionately keeps people of color jailed and doesn’t help keep the community safe, as proponents maintain. 

Prosecutors, judges and bail bonds agents are opposed, saying the proposals limit judicial discretion and could lead dangerous people to commit further crimes when they could be confined.

Months ahead of the hearing, the proposed changes generated hundreds of comments to the high court from interested parties.

“All across the state, indigent people are being kept in jail for low-level offenses typically associated with poverty,” King County’s Department of Public Defense wrote.

“My father used to say, never underestimate the stupidity of large groups of people,” Pierce County criminal defense attorney Bryan Hershman wrote in opposition to the rule changes. “I assure you, no single person on this committee could have suggested something so silly as what is suggested in these changes.”

The justices pressed both sides with numerous questions over a nearly three-hour-long hearing at the Temple of Justice in Olympia. They wanted data to back up the myriad claims from both sides. They asked for more clarity regarding geographic disparities in bail approaches and a sense of why change is needed when the presumption in current court rules already favors release.

The U.S. and Washington constitutions prohibit excessive bail.

Many arrestees must post bail to be released from jail pending a trial on the charges they face. Bail is usually set immediately after arrest or arraignment. Judges typically impose higher bail, sometimes into the millions, for severe crimes such as murder, but people accused of misdemeanors may also have to pay to get out of jail. Time spent in jail before trial is usually credited as time served for a longer sentence, if found guilty.

Many people arrested by police are released from jail without having to post bail under the condition that they will appear at future court hearings. However, a defendant with a history of missing court appearances could face more expensive bail. 

Under current rules in Washington courts, the standard for a judge to set bail is a “likely failure to appear” for future court hearings. Judges also look at prior convictions and the risk to public safety when making bail decisions, among other factors.

The proposed rule change would raise that standard to a “high likelihood of willful flight from prosecution.” Illinois has moved to the latter standard.

The public defense proposal would also define willful flight as “intentional conduct with a purpose to thwart the judicial process to avoid prosecution.” 

Backers of the rule change contend that people usually miss court appearances for reasons other than trying to flee proceedings, such as transportation problems or conflicts with personal responsibilities like caregiving.

The plan would also cap bail at $200 for misdemeanor offenses, save for domestic violence and driving under the influence, unless the suspect is found to be likely to flee prosecution under the new standard. Vermont has imposed a similar $200 limit. 

Public defenders also want the accused to be able to post 10% of their bail amount with the court to secure release, with the promise they’ll get the money back so long as they don’t miss hearings. In essence, a $200 bail would require $20 for release. While allowed currently, public defenders rarely request the concession. The proposed rule change would set it as the starting point. 

The rules would also guarantee defendants a chance to appear for a hearing on their case while out of custody at least once before a judge can set bail based on the risk of flight. Judges could still impose bail for other reasons.

Courts usually order defendants to post either the full bail amount or a surety bond, which generally means paying 10% to a bail bond company to post the bond on their behalf. That 10% isn’t returned at the end of the case.

There is no timeline for a decision from the justices.

The arguments

The proposal’s proponents say the state’s current system is keeping people behind bars despite a presumption of release.

“For people with money, bail is a condition of relief,” said Katie Hurley, of the King County Department of Public Defense. “For people without money, it becomes an order of pre-trial detention. When bail becomes detention, we must ask ourselves what justifies taking away a person’s freedom.”

Some advocates, including multiple justices, suggest people plead guilty to charges they didn’t commit because they want to get out of jail but can’t afford to post bail. 

Rachel Sottile, president and CEO of the Washington-based Center for Children and Youth Justice said the harm that comes from pre-trial detention “may be the determining factor in a young person’s ability to achieve long-term stability and positive outcomes.”

Jailing people is also expensive. In King County, it reportedly costs more than $11,000 per month to detain someone before trial. Supporters of the rule changes say there are cheaper ways to get people to show up to court hearings, such as through text message reminders. 

Defendants can often appear virtually or waive their right to appear, but locales with fewer resources don’t provide remote access. In rural areas, hearings can mean a lot of travel, which leads to more people failing to appear. 

Prosecutors fear people released before trial will commit crimes that could be avoided if they were locked up. Justice Theo Angelis noted judges have an incentive to keep people confined so they don’t “commit a terrible crime that could effectively force you off the bench.”

“There’s no free lunch,” said Jefferson County Prosecutor James Kennedy. “You commit a crime, there’s going to be repercussions for it. You’re going to be inconvenienced for it.”

Some judges also said the “willful flight” standard could be impossible to apply in practice without a sense of what constitutes a “high likelihood.”

Some opponents also said the rule changes should be enacted through legislation, not by the court, as in other states, noting that more money would be needed for pre-trial services, such as electronic home monitoring.

“The dollars are not growing in availability, but in fact the fight is getting harder and harder,” said Snohomish County Prosecutor Jason Cummings, on behalf of the Washington Association of Prosecuting Attorneys.