WA bail reform proposal sparks controversy, public safety concerns
The Washington state Supreme Court is currently fielding comments from the public concerning proposed bail reforms.
Proponents argue that the suggested court-rule changes are needed to rebalance a criminal justice system that disproportionately ensnares people from marginalized groups.
Critics say they have concerns about the implications for accountability and public safety.
Four public-defense organizations — the Washington State Office of Public Defense, Washington Defender Association and the King and Snohomish county departments of public defense — put forward the proposal.
A document from the public-defense groups explaining the idea says that the government frequently requests bail on the sole basis that someone likely won’t appear for court hearings, even if they haven’t had the opportunity to appear voluntarily and there is no evidence that they plan to “flee from prosecution.” The coalition says that trial courts often set high bail amounts for misdemeanor crimes that lead to “wealth-based pretrial incarceration.”
Today in Washington, judges can impose bail when there’s a likelihood that a person won’t appear, said Coreen Schnepf, chief criminal deputy for the Pierce County Prosecutor’s Office. Judges also weigh myriad other factors such as financial circumstances, prior convictions and whether someone presents a public-safety risk.
The new proposal would change some of the bail rules, including by having prosecutors prove a “high likelihood of willful flight to avoid prosecution” — a standard that Schnepf called “impossible.”
The proposal would:
- Change the standard under Criminal Rule (CrR) and Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 3.2 from “likely failure to appear” to “high likelihood of willful flight from prosecution,” in part defined as “intentional conduct with a purpose to thwart the judicial process to avoid prosecution.”
- Create a presumption that a person can post 10% of the set bail with the clerk of the court instead of through a bondsman.
- Impose a $200 cap on bail for most misdemeanors; exceptions would include DUIs and domestic violence.
- Require a person to have at least one failure to appear on that particular case before a judge can find that there’s a likelihood they’ll miss court.
- Strip a provision that currently allows judges to deny bail on capital offenses, meaning the presumption of release would also now apply to capital offenses.
In a recent opinion piece in The News Tribune, Pierce County Prosecuting Attorney Mary Robnett and Tacoma Business Council Chair Kristen Wynne offered an example of the 10% change. The hypothetical: If a fentanyl dealer faces a $250,000 bail, they could be released if someone posted $25,000, with no meaningful duty to pay the other 90%.
The public-defender group wrote in the cover sheet that such proposed amendments would work to advance justice. Pretrial detention disproportionately affects people of color, the public defenders said, citing research suggesting that bail is often applied in a racially uneven way.
“Too often, cash bail functions as de facto pre-trial incarceration, which disproportionately harms poor people, people of color, and people with disabilities,” their statement continued.
Sen. Nikki Torres, a Pasco Republican, sees things differently.
“I don’t really think it’s an equity issue. I think it’s either a criminal or a victim issue,” said Torres, who is Latina. “As far as I’m concerned, when there’s a victim, I don’t see color: It’s a person.”
Earlier this month Torres spearheaded sending a letter to the state’s high court, along with dozens of her GOP colleagues, expressing strong opposition to the proposed changes. The lawmakers argued that the ideas should instead be debated through the legislative process.
Torres worries that the suggested rules could discourage the public from reporting crimes. She has concerns about how this would alter the judicial system as a whole, and how it’d look to victims.
“It sets that precedent that we are lax on crime,” she told McClatchy, “and we don’t want to be having that reputation in Washington state.”
Others also opposed the proposal via written comments to the court, including the District and Municipal Court Judges’ Association. The victims’ advocacy organization Crime Victims United warned the changes would endanger victims, communities and witnesses.
Aleksandrea Johnson, a Snohomish County public defender, urged the state Supreme Court to embrace the proposal in a comment submitted earlier this month.
Johnson wrote that she’s seen her clients’ lives upended by needless pretrial detention. That includes losses to jobs and housing, she said.
The document about the proposal refers to research indicating that people held in pretrial detention are 25% likelier to plead guilty because that often leads to immediate freedom. Conversely, maintaining their innocence could at times take months or years of sustained pretrial incarceration, the coalition wrote.
Johnson underscored what she called a “major disproportionality between those accused of a crime who have the means to post bail and those who do not.”
“This disparity does not make our communities safer,” she continued in her email to the court. “To the contrary, it shows how our current rule and practices keep people accused of crime who are already under resourced and served in poverty through unnecessary pretrial detention.”
In their argument, the public-defense groups behind the proposal cite similar changes made in other states, including New York, which ended bail for most cases involving misdemeanors and non-violent felonies.
Lawmakers in that state have since made revisions to the 2019 law amid worries about worsening crime, according to The Brennan Center for Justice. The center noted that there isn’t evidence linking rising crime rates to bail reform.
Courtney Wimer, president of the Washington State Bail Agents Association, in an opinion piece for The Seattle Times pointed to a similar Philadelphia system allowing pretrial release on 10% of bail. Courts reportedly struggled to collect the remaining 90% from those who failed to appear — ultimately leading officials to wipe out roughly $1 billion in owed debt.
Wimer argued in a call with McClatchy that lowering the misdemeanor bail amount to $200, which would become $20 under the 10% change, would mean that folks have little incentive to return to court.
The state ranks last for the number of police per capita and counts the third-highest property crime in the nation, she said. In her view, this proposal would make the latter statistic worse while further burdening understaffed police departments.
“It removes accountability,” Wimer said, adding: “It’s kind of a slap in the face to victims and to people that care about the criminal justice system and the crime rate.”
The public has until April 30 to submit comments about the proposed rule change by emailing supreme@courts.wa.gov. After the deadline has passed, the state Supreme Court will review input and weigh whether to adopt, reject or alter the amendments, spokesperson Wendy Ferrell said via email.
Ferrell continued that “the proposal is receiving by far the most public comments of any proposed rule change that is currently pending for public comment.”
.jpg)