Prosecutors and Judges in Washington State may soon be setting reasonable bail amounts in criminal cases. The United States Justice Department recently admitted that holding defendants simply because they can’t afford bail is likely unconstitutional.
Criminal Rule 3.2 – Bail
Washington Criminal Rule 3.2 creates the general presumption that a criminal Defendant shall be released from custody without having to post bail. The court is to examine whether the accused is likely to commit more crimes, or intimidate witnesses, or otherwise interfere with the administration of justice. The court should release on personal recognizance defendants who are likely to follow the rules.
A judge may impose no bail, or a reasonable bail. The purpose of bail is to ensure that the defendant will appear in court. Bail is also supposed to protect the community. If the court can impose a significant bail if it determines that the accused is a danger to the community, or is a flight risk.
Unfortunately for many Pierce County criminal defendants, some judges have set bails that are so high that the accused cannot reasonably expect to be released. These cases include people who aren’t accused of violence, and aren’t at risk of skipping out on their court case.
The Constitution
The USDOJ brief stated that “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.” The Constitution guarantees equal protection and when similarly situated people have bail set with no regard to ability to bail out, then some people are being treated differently.
The USDOJ brief was filed in the case of Maurice Walker of Calhoun, Georgia. Mr. Walker was arrested for being drunk in public. His bail was set at $160, which Walker was unable to post. As a result, he was held in jail for six nights following his drunken walk. There is no indication that Mr. Walker was a risk to the public, or a flight risk unlikely to return for court. As he could not afford to bail out, it seems clear that his bail was too high for this situation.
USDOJ lawyers argued that “Fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for the ability to pay,” the government said, “unlawfully discriminate based on indigence.” The Federal judge hearing the case agreed ordered to the city create a fairer system for defendants in minor criminal cases. The city appealed.
The city expressed concerns that without requiring bond, many people would have no incentive to return. It’s troubling that the city thinks it better to keep people jailed in petty offenses for which they have not been convicted, than to set a reasonable bail amount and run the risk that a small percentage of people might miss a future court date.
The city, not surprisingly, was joined by law enforcement and a group representing bail bondsmen. They advocated that indigence should not be considered in setting reasonable bail.
An Old Man and His Truck
Our firm recently represented a nice old man who was frustrated with a police officer. The officer accused the old man of not having a valid license. The old man was sure – and correct – that his license was fine. The officer didn’t like our client’s “bad” attitude.
The cop threatened to arrest the old man and tow his car. The old man pleaded that he wouldn’t be able to retrieve his vehicle and wouldn’t be able to bail out. The cop laughed – it was videotaped – and told the old man, “too bad”. The judge did not order a reasonable bail amount, and the old man sat in jail.
As it turned out, his license was good. The charges were eventually dropped but as a result of the arrest, he lost his job as well as his truck. He simply couldn’t afford the towing fees and impound charges once he was released.
Excessive bail can break up families, costs the accused his or her job, and it creates a host of other social issues. It’s nice to see the government finally accepting how destructive some of its policies can be.
For more info see the ABA article here.