Two fundamental underpinnings of our nation’s legal system are that everyone is innocent until proven guilty and has the right to be treated equally under the law. Discriminatory cash bail systems contradict these two tenets, forcing people, most of whom have not been convicted of a crime, to wait in jail because they cannot afford to buy their freedom.
Washington now has an opportunity to change this.
Public defenders have proposed changes to the court rules that govern the use of bail. These changes are now under consideration by the Washington State Supreme Court.
Under the current rules, judges can impose bail in most circumstances. These include when someone misses their court appearance through no fault of their own — hospitalization or car trouble, for instance — or even before the person has had the chance to voluntarily return to court for their case. Under the current system, judges can also set high bail amounts for low-level offenses. This routinely results in people being held in jail simply because they are poor. Often, people are forced to turn to the bail bonds industry, which profits from this coercive and unjust dynamic.
These proposed changes would alter the way judges determine whether bail should be imposed pretrial. The changes are long overdue, bringing Washington closer to the standard set by other states that have reformed their bail systems. They will move our own system closer toward realizing greater justice, community well-being and efficiency of resources.
The proposals would require that a failure to appear in court must be intentional before bail can be imposed. These provisions would prevent bail from being imposed because someone had a medical or other emergency and could not make their court date. This incentivizes courts to help people appear rather than defaulting to unnecessary incarceration.
The proposed changes limit the amount of bail that can be imposed to $200 in misdemeanor cases, excluding more serious cases like domestic violence, sexually motivated offenses and DUIs. They would prevent the imposition of $5,000 bail for the theft of $20 worth of food.
Imposing bail in these types of cases is unfair and punitive for Washingtonians with lower incomes. Unable to post bail, many are forced to grapple with pleading guilty instead of exercising their constitutional rights. These types of offenses likely result in only a short jail sentence, but even a short stay can have massive impacts on someone’s life, including family separation and loss of employment, property and public benefits. These repercussions are further amplified by a conviction, resulting in more collateral consequences like legal financial obligation debt, possible immigration consequences, and loss of driver’s licenses. This means the poorest and most vulnerable people in our community are made even poorer and less stable by the imposition of bail.
Finally, these proposals also allow people to post 10% of bond amounts directly with the court, which they get back after they come to court, instead of paying that amount to bail bondspeople.
Because these proposals threaten the ability of the bail industry to take advantage of people who are desperate to get out of jail and their loved ones, bail bondspeople naturally oppose them. The industry attempts to capitalize on fear of crime and the stigmatization of people involved in the criminal legal system to make the claim that bail reform leads to more crime.
Importantly, much of the fearmongering is unrelated to anything this provision does. The changes have no impact on a judge’s ability to impose bail if they think someone is likely to commit a violent offense, severely undercutting the arguments against these proposed changes.
Similar reforms have worked nationwide in places as demographically and culturally different as Kentucky and Vermont. Robust empirical studies prove that bail reform works and does not cause a rise in crime. A comprehensive survey of 33 cities across the country found there was no reason to believe that bail reform led to an increase in crime.
If bail doesn’t actually deter people from failing to appear in court or pretrial crime, what is its use, other than harming communities of color, perpetuating poverty and punishing people presumed innocent?
These commonsense reforms are fair and will help our entire community.
