WA judges must uphold legal principles for all — including granting pretrial release | Opinion

The pretrial criminal justice system is the focus of much discussion in Washington and nationally. Almost five years ago the Washington Pretrial Reform Task Force issued a report promoting a statewide legal and evidence-based path for improving pretrial systems.

Pierce and Thurston Counties have, independent of each other, been engaged in a collaborative process for the past several years to examine our pretrial system and make smart, effective and fair improvements that achieve the best outcomes for our communities. Both counties formed a team with representatives from law enforcement, the prosecutors’ offices, public defense, the courts, pretrial services leaders and others.

Why the focus on the pretrial system?

Because it is the front door to the criminal justice system. How a person’s case moves through this phase can have significant consequences for the people charged and our communities.

The pretrial phase often starts with a person’s first contact with law enforcement. It ends at the final case disposition.

As the process proceeds, charges may be dismissed or amended, the person may plead guilty, or the case can go to trial and conclude with a verdict. Sentencing would then follow a guilty verdict or a plea.

Law enforcement, jail staff, prosecutors, public defenders and pretrial services staff make important decisions that impact how a person moves through the pretrial phase. While everyone is committed to upholding the law, judges bear a heavy responsibility to ensure legal and constitutional principles are upheld.

Among these is the right to physical liberty, a foundational principle of the U.S. Constitution. The U.S. Supreme Court is unequivocal in stating, “In our society, liberty is the norm, and detention prior to or without trial is the carefully limited exception.”

The Washington Constitution provides a broad right to pretrial release. The options include, but aren’t limited to, electronic home monitoring, drug and alcohol monitoring and court-ordered behavioral health treatment. Our courts have stated that release before trial “... serves to recognize and honor the presumption under the law that an accused is innocent until proven guilty.”

There are significant impacts on people who are detained before trial. Research shows they are more likely to be found or plead guilty, receive a sentence to serve time in jail or prison, and receive a longer sentence. Pretrial detention is disruptive, causing people to lose their jobs, housing, family ties and custody of their children. Research shows that any time in jail before trial contributes to an increase in the likelihood of future arrest.

At the same time, judges always consider the well-being and safety of the community. They must make decisions that are case-specific. A variety of factors must be weighed to balance the presumption of innocence and the right to liberty before trial along with protecting community safety.

Judges can’t predict the future. They apply the law, consider all the information, and make a decision, including imposing conditions of release that reduce the risk of a future arrest for a serious crime. However, national data show that most people released pretrial are successful during this phase, meaning they attend their court hearings and remain arrest-free. Pretrial system stakeholders in Pierce and Thurston are working to collect data to monitor pretrial outcomes and use it to identify what is working and where improvements can be made.

To show support for law enforcement or to hold a person accused of a crime “accountable,” some argue that people should be in jail. American legal principles do not allow detention for those reasons.

Judges have tremendous respect for the work of state and local law enforcement agencies. But judges must make decisions considering the law and the facts about each case and the person before them.

There is a growing recognition that pretrial practices can be improved and achieve better results for people, systems and communities. Pierce and Thurston remain committed to cross-agency collaboration, using data to inform practices, and ensuring decisions are consistent with the law, including the presumption of innocence and community safety.

We encourage thoughtful discussion and debate.

We can uphold the letter and the spirit of our laws while also working to advance safe, healthy communities and upholding the rights of people accused of a crime, survivors and their families — as well as the integrity of pretrial justice in Washington.

Judge Timothy Ashcraft serves as presiding judge for the Pierce County Superior Court. Judge John Skinder serves as presiding judge for the Thurston County Superior Court.

This story was originally published February 1, 2024 at 5:00 AM with the headline "WA judges must uphold legal principles for all — including granting pretrial release | Opinion."