CrRLJ 3.2 - Release of AccusedComments for CrRLJ 3.2 must be received no later than January 29, 2010.
GR 9 COVER SHEET
(C) Purpose: CrRLJ 3.2 is entitled “Release of Accused” and establishes a bail schedule for 25 enumerated criminal offenses as conditions of release from custody in criminal matters. Bail amounts range from $100 to $500.
CrRLJ 3.2 (o) also provides for forfeiture of bail as a final disposition in some criminal matters. The Legislature has not provided for or defined bail forfeiture as a final disposition in criminal matters except in the limited context of violation bureaus established under RCW 3.30.090, RCW 3.50.030, and RCW 77.15.050. It is unclear what effect bail forfeiture as a final resolution has on individuals’ criminal history or whether it can be used to enhance a subsequent offense or penalty.
The rule also includes a schedule of criminal penalties. The Washington legislature has enacted criminal penalties for gross misdemeanors and misdemeanors at RCW 9.92.020 (up to 1 year in jail and $5,000 fine for gross misdemeanors) and 9.92.030 (up to 90 days jails and $1,000 fine for misdemeanors). The legislature has not delegated authority to the Supreme Court to modify or otherwise revise those penalties. Various executive branch agencies or commissions charged with regulation and enforcement in specific areas have requested the Supreme Court to enact criminal penalties in court rule. The penalty amounts set in court rule have little if any relationship to the penalties set by the legislature. There have also been practical problems with keeping schedules current as the agencies and commissions have not always been timely in notifying the court of needed changes, which has resulted in and discrepancies between agency/commission expectations and published information.
Bail: The bail amounts set in CrRLJ 3.2 have not been revised since the rule was originally published. The amounts and listed offenses were apparently adopted based on the City of Seattle bail schedule in effect at the time of adoption. There is no currently recognized rationale behind the offenses listed. Bail amounts do not reflect current dollar values and do not adequately respond to current perceptions of crime severity. It is recommended that the court establish a simplified bail schedule for misdemeanors and gross misdemeanors of $500 and $1,000 respectively. It is anticipated that the court rule schedule will be a default schedule and that local jurisdictions will enact bail schedules that reflect local conditions and priorities; the default amounts will provide some guidance in determining locally appropriate bails amounts.
Forfeiture: Bail forfeiture has been used as a final disposition in criminal matters probably arising out of the old Justice of the Peace system that concerned a requirement that bail be posted before a defendant could request a jury trial on a speeding ticket. Under that system if the defendant failed to appear for trial, bail was forfeited and the case finally resolved. This antiquated system has been used for many years as a way to resolve criminal charges as diverse as DUI, assault and communication with a minor, but most often for misdemeanor charges such as DWLS3rd, Unlawful Recreational Fishing, or Transporting a Loaded Weapon. Bail forfeiture as a final disposition in criminal matters is problematic for a number of reasons. First, the legislature has provided no definition of bail forfeiture (for example, Is it a conviction? Can it be used as criminal history for sentencing considerations?). Confusingly in at least two instances the legislature has equated bail forfeiture to a conviction (RCW 46.20.270(4) concerning traffic matters provides that if money is paid, including bail forfeiture, DOL will consider the matter a conviction. RCW 77.15.050 concerning Fish & Wildlife matters provides that if money is paid, including bail forfeiture, F&W will consider the matter a conviction. In either case, the designation of ‘conviction’ may result in impingement of substantial rights including immigration consequences.) Second, the AOC computer system automatically changes a Bail Forfeiture (BF) code to Guilty (G) if the bail forfeiture is not paid and the case is sent for collection, thus imposing a conviction for a person who may not have been adequately advised of his Constitutional rights in that regard. Third, the legislature has not delegated authority to the Court to enact bail forfeiture in amounts that differ from misdemeanor and gross misdemeanor penalties set in statute. Fourth, if bail forfeiture is defined as or results in conviction of a criminal charge, allowing that forfeiture of bail without a finding of guilt and constitutionally mandated colloquy is inappropriate. The proposed revision would eliminate the allowance of bail forfeiture as a final disposition in criminal matters. (Bail might however still be forfeited for a failure to appear in a case, in that event, the case is not closed but remains open for resolution until the defendant appears before the court.)
Penalties: The Washington legislature has not delegated authority to the court to enact criminal penalties. The legislature should create penalties for all criminal charges, either through direct legislation or by delegated rule-making authority. The legislature has created executive agencies and commissions that are charged with regulation and enforcement in defined areas. The legislature has delegated rule making authority to those agencies or commissions within their areas of responsibility. The legislature has also provided procedures for exercising rule making authority.
By asking the Supreme Court to enact criminal penalties, the agencies and commissions have effectively substituted Supreme Court rule making procedures for the requirements of the Administrative Procedures Act (APA), Chapter 34.05 RCW. One purpose of the APA is to ensure that interested parties have an opportunity to be heard on proposed rules, including penalties. While the Supreme Court rule making process provides the openness and opportunity to comment anticipated by the APA, it may not be apparent to interested parties that they need to watch the Supreme Court rule making process in order to participate.
The proposed revision would shift adoption of penalties back to the legislature or to the agency/commission charged with enacting rules in the defined area.
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