GR9 COVER SHEET 

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

B.     Spokesperson: Matt Sanders, Larry Jefferson, Christie Hedman, and Jason Schwarz

C.    Purpose:  Revise CrR/CrRLJ 3.2 to clarify the confusing and broad language regarding “administration of justice” and replace it with the specific and clear inquiry into whether a person may unlawfully intimidate with or threaten a witness, victim or court participant, or tamper with evidence.

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

E.     Expedited Consideration: Expedited consideration is not requested.

F.     Supporting Material: Suggested rule amendment.

Introduction

The King County Department of Public Defense, the Washington State Office of Public Defense, the Washington Defender Association, and the Snohomish County Office of Public Defense propose changes to CrR/CrRLJ 3.2 to bring greater clarity to the factors that the trial court may consider when imposing pretrial conditions of release. Instead of an unduly broad criterion of “interference with the administration of justice”, the proposed amendment will ensure the trial court properly considers whether a person will seek to intimidate or threaten witnesses, victims, and court employees or seek to tamper with evidence.

Background

Under CrR/CrRLJ 3.2, a court may impose conditions of release when the court finds there is a likely danger that the accused… will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice,” but the rule does not define “administration of justice.” This lack of clarity undermines the presumption of release, as the State has successfully argued that factors as commonplace as past failures to appear constitute likely interference with the administration of justice.

We have seen the state argue and the court impose bail after finding that a person is likely to commit a nonviolent offense and thus violate release conditions, which would undermine the “administration of justice.” In addition, increasingly often, when examining the interference with the “administration of justice” prong, courts consider whether a person has previously violated conditions of release, even if the violations were unrelated to any behavior towards witnesses, court employees, victims or evidence.

While there is little appellate caselaw interpreting the “administration of justice” prong of CrR/CrRLJ 3.2, in State v. Rose, the Court of Appeals applied a broad interpretation, writing that “no evidence in Wentz's case supported that he would be likely to commit a violent crime or intimidate a witness…. Accordingly, the only remaining possibility is that the trial court found there was a likely danger that Wentz would ‘otherwise unlawfully interfere with the administration of justice’…. we presume that failing to attend a hearing is an unlawful interference with the administration of justice.” 146 Wn. App. 439, 454, 191 P.3d 83, 91 (2008).

By clarifying the “administration of justice” prong to focus on whether a person will seek to intimidate or threaten witnesses, victims or court employees, or tamper with evidence, the Court can focus the inquiry and mitigate the risk that conditions of release like unaffordable bail are unnecessarily imposed. This is critical because the harms of unaffordable bail and pretrial incarceration are well known, with research demonstrating that that short periods of incarceration frequently upend a person’s employment, housing, child custody, and access to health care.[1]

In addition, greater clarity regarding the “administration of justice” prong is also important because studies demonstrate that both the imposition and effect of bail are racially disproportionate.[2] The racial disproportionality of the bail system has additional, far-reaching impacts due to the deleterious impact that pretrial incarceration has on case outcomes.[3]

Conclusion

The “administration of justice” prong must be clarified given the known harms of pretrial incarceration that result when unaffordable bail is imposed. Through this proposed amendment, the trial court will still be able to consider whether a person is likely to tamper with evidence or intimidate or threaten witnesses, victims, or court employees.