GR9 COVER SHEET

A.     Name of Proponent: The King County Department of Defense, the Washington State Office of Public Defense and the Snohomish County Office of Public Defense

B.     Spokesperson: Anita Khandelwal, Larry Jefferson, and Jason Schwarz

C.     Purpose: Ensure that when the court imposes bail that an accused person can deposit 10% of an ordered bond amount with the court and that such deposit is returned at the conclusion of the case if the conditions are followed (consistent with current CrR/CrRLJ 3.2(b)(4)).

D.     Public Hearing: A public hearing is not recommended.

E.     Expedited Consideration: Expedited Consideration is not requested.

Introduction

The proposed amendments seek to remedy one of the inequities the bail surety system imposes on indigent persons accused of crimes. The current surety bail system unjustly deprives indigent litigants of their bail deposit. The proposed amendment to CrR 3.2/CrRLJ 3.2, Release of Accused, will ensure that courts will accept multiple bail payment options, including a 10% cash deposit of the bail amount to be returned to the accused at the conclusion of their case. This proposed amendment will enable indigent people to obtain their release from jail without losing their cash deposit.

Background

To secure an accused person’s release, Washington courts currently accept the deposit of 10% of an ordered bond, the posting of the full bail amount, or a surety bond. Courts overwhelmingly order the posting of the total bail or a surety bond in lieu of full bail rather than allowing the option of depositing 10% with the court. As a result, an indigent accused person unable to post the entire full bail amount is required to use a private bail bonds company to post a surety bond on their behalf. These low-income people must generally pay 10% of the bail amount to the bail bonds company for the surety bond. Unlike 10% deposited with the court, which can be returned to the accused upon conclusion of the case, the money used to purchase a surety bond from a private bail bond company is never returned, regardless of whether they return to court for the remainder of their case or even have the charges against them dismissed.

The wealth extracted from low-income communities across the country due to this practice is significant: the ACLU and Color of Change estimate that the private bail bonds industry generates as much as $2.4 billion nationwide every year. See Color of Change and American

Civil Liberties Union’s Campaign for Smart Justice, “Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System” (Oakland, CA: 2017), available at https://www.aclu.org/report/selling-our-freedom-how-insurance-corporations-have-taken-over- our-bail-system.

Several other states have adopted procedures similar to this proposal, including Kentucky, Wisconsin, Massachusetts, Oregon, and Nebraska. These jurisdictions vary in the amounts they charge an accused person for posting 10% of bail set in order to secure their release pretrial, ranging from a specified fee to a percentage of the deposit. See KRS 431.510; Wis. Stat. § 969.12(2); Kahn v. McCormack, 299 N.W. 2d 279 (Ct. App. 1980); M.G.L. ch.276 §61B; ORS

135.265; NRS 29-901(3)(c)(1).

By amending CrR and CrRLJ 3.2, Washington can mitigate the harm the criminal legal system inflicts on people with low incomes who are charged with crimes and presumed innocent.

Conclusion

In sum, the proposed rule change would create a fairer criminal legal system where people of low incomes don’t end up paying more for their freedom than the wealthy. Allowing people to pay the 10% deposit with the Court will assure more equal access to justice without imposing any significant administrative burden on Washington’s courts. For these reasons, we urge the Court to adopt this proposed rule change.