GR9 COVER SHEET

 

A.    Name of Proponent: The King County Department of Defense and the Snohomish County Public Defenders Association.

 

B.     Spokesperson: Matt Sanders and Kathleen Kyle.

 

C.    Purpose:  Revise CrR/CrRLJ 4.1 to reduce the timeline for in-custody arraignment hearings from 14 days to 3 days; similarly, revise the timelines in CrRLJ 3.2.1 to ensure timely Arraignment hearings.

 

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 and the Snohomish County Public Defenders Association propose changes to CrR/CrRLJ 4.1 to reduce the timeline for in-custody Arraignment Hearings from 14 days to 3 days.

In addition, these organizations proposed changes to CrRLJ 3.2.1 to both ensure that a preliminary hearing occurs within 48 hours and to also ensure that a felony complaint is filed in Superior Court within three days of a felony probable cause finding in District Court.

By changing the timelines, incarcerated individuals will more quickly have an Arraignment hearing where they can both enter a plea and address conditions of release, including bail.

Background and justification for the proposal

In theory, those who are detained pretrial have an opportunity to be released at their preliminary court hearing. However, those hearings happen quickly and without full discovery. In addition, there are times when a person allegedly ‘refuses’ their preliminary appearance hearing and so do not have a hearing before their Arraignment hearing.  As a result, individuals are frequently incarcerated in jail on unaffordable bail until their Arraignment Hearing. For example, King County jail data (as of 9/26/24) shows that of the releases in the last 14 days, 13.7% of people had been incarcerated for 4-10 days and 16.4% for 11-30 days.[1]

Throughout Washington State, counties and cities schedule arraignment hearings for incarcerated people on different timelines. For example, in Pierce County, a person is generally arraigned on felony charges within 24 hours of booking but it can be up to 72 hours of booking.

In Snohomish County, felony complaints are regularly first filed in District Court and then filed into Superior Court two Fridays later; the District Court felony complaint hold (on unaffordable bail) is generally about 14 days, with variation to account for the second Friday filing deadline. After the State files a felony complaint into Superior Court, the accused individual has an Arraignment Hearing within 3 days. Snohomish County engages in this practice routinely- in 2023, Snohomish County filed 2,729 felony complaints into district court in 2023 and statewide, 3,705 were filed total.[2] The practice results in many accused persons sitting in jail due to the District Court hold (on unaffordable bail) and there is no access to discovery, speedy trial, or other rights provided for by Superior Court rules.

State v. Dowdney illustrates the practice well. In that case, Mr. Dowdney was booked into Snohomish County jail on March 11, 2016. On March 13, a district court commissioner ex parte found probable cause and set bail at $500,000. In addition,

 

the district court further ordered that, ‘if a Complaint is filed in District Court-Everett Division by 5:00 p.m. on March 15, 2016, the conditions of release including bail shall remain in effect until the Felony Dismissal Date as listed on the Complaint.’.

On March 14, Dowdney appeared before the district court, where the judge maintained the bail amount and conditions of release….

The next day, March 15, the State filed a felony criminal complaint in district court, with a felony dismissal date of April 1. Dowdney was not arraigned at this or any point before a district court judge, nor did he have any type of preliminary hearing pursuant to CrRLJ 3.2.1(g)(1). It is undisputed that this practice regularly occurs in Snohomish County.

On April 1, the State filed a new felony information in superior court, in which Dowdney was charged only with First Degree Robbery, and the district court charges were dismissed.

On April 4, Dowdney appeared before a Snohomish County Superior Court judge for arraignment…. 26 Wash. App. 2d 1002, review denied, 537 P.3d 1026 (Wash. 2023) (emphasis added).

 

The Court of Appeals, in an unpublished decision, analyzed the above practice and related objections and found that “without any comment as to the wisdom of this practice as a matter of policy, we conclude that the county's charging practice does not violate the equal protection clause as presented and argued in this particular case.”. Id.

 

As the above fact pattern demonstrates, Snohomish County’s regular practice results in presumptively innocent people being booked into jail and then not coming to court for an Arraignment hearing for up to 24 days (in the above example, the arrest occurred on 3/11/16 and the Arraignment Hearing occurred on 4/4/24).

 

Similarly, in King County Superior Court, due to the timelines in CrR 4.1, incarcerated individuals generally languish in jail for 14 days after charges are filed before their Arraignment Hearing. That is even true for individuals who are arrested pursuant to a warrant and who do not have a preliminary appearance following their booking into jail.

Here are some examples of how presumptively innocent people languished in jail for weeks in King County before their arraignment hearings in September 2024:  

n  24-1-06228-5 -- a person was booked for possession with intent to manufacture on 9/4/24 and he did not have a preliminary appearance due to an alleged refusal. Charges were filed on 9/9/24 with a warrant issued on 9/9/24 for $25,000.  The arraignment hearing was set for 9/23/24, and the accused was released on personal recognizance with a less restrictive alternative 19 days after arrest.

n  24-1-02843-5 -- a person was booked for residential burglary and criminal impersonation in the first degree on 9/3/24 with a warrant issued on 9/6/24 for $10,000 (the amount ordered at the preliminary appearance) after the case was filed. The arraignment hearing was set for 9/19/24, where enhanced alternative CCAP programming was ordered, and the person was released 16 days after arrest. 

n  24-1-06419-9 -- a person was booked for motor vehicle theft on 9/1/24 and a warrant was issued on 9/5/22 for $5,000 (the amount ordered at the preliminary appearance) after the case was filed. The arraignment hearing was set for 9/19/24, where the person was released on personal recognizance with basic alternative CCAP programming ordered, and the person was released 18 days after arrest. 

n  24-1-04295-1 -- a person was suspected of forgery on June 1, 2023, and was stopped and released by police. Over a year later, on 5/21/24 a single forgery charge was filed, and a notice of arraignment was sent to the person’s old address, and the notice was returned as ‘unclaimed mail’. On 6/3/24, a bench warrant was issued, and bail was set at $5,050. The person was booked on 9/16/24. The arraignment hearing was set for 9/30/24, where the person was released on personal recognizance 14 days after being jailed.

 

States with shorter timelines between a person’s booking into jail and their Arraignment hearing include Oregon, where an incarcerated person’s arraignment is held within the first 36 hours of custody (excluding weekends and holidays). Or. Rev. Stat. Ann. § 135.010. In New Hampshire, incarcerated people’s arraignments are held within 24-36 hours of arrest (excluding weekends and holidays). In New York State, a “delay of arraignment of more than 24 hours is presumptively unnecessary and, unless explained, constitutes a violation of CPL 140.20(1),” entitling the incarcerated person to immediate release. If the person is held on a felony complaint and cannot pay the bail set at arraignment, the State has six days to indict them or else they get released. N.Y. Crim. Proc. Law § 180.80.

 

The proposed changes to CrR/CrRLJ 4.1 will ensure that an incarcerated person timely appears before the Court for their Arraignment Hearing so they may properly address release conditions, including bail, and so that the time for trial commences. Defense counsel cannot effectively address release conditions at a preliminary hearing because it is only after charges are filed that they can review the initial discovery in the case.

 

Similarly, the proposed changes to CrRLJ 3.2.1, will ensure that when a felony compliant is filed in District Court, that the preliminary hearing to determine probable cause will be held within 48 hours. In addition, the changes will ensure that if the court finds probable cause and binds the defendant over to the superior court, an information must be filed within 3 days to ensure that the defendant is not languishing in jail while waiting for charges to be filed.

 

Timely Arraignment hearings for incarcerated individuals help ensure that the accused is informed of the specific charges, can respond with a plea, and can address conditions of release. In addition, a timely Arraignment Hearing helps protect the right to speedy trial and prevents excessive delays since the timeline for a speedy trial starts at Arraignment.

 

The harms of 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. See Lisa Foster, Judicial Responsibility for Justice in Criminal Courts, 46 Hofstra L. RevV. 21 (2018).

 

Timely arraignments (following timely filing of felony charges in Superior Court), where defense counsel can effectively address bail, are also important because studies demonstrate that both the imposition and effect of bail are racially disproportionate.[3] Black defendants face higher bail amounts than white defendants charged with the same crimes.[4] The racial disproportionality of the bail system has additional, far-reaching impacts due to the deleterious impact that pre-trial incarceration has on case outcomes.[5]

 

Conclusion

Under these proposed amendments incarcerated individuals would have an Arraignment Hearing within three days of charges being filed and, moreover, felony charges would need to be filed in Superior Court within five days of a person’s arrest.

Presumptively innocent people should not be forced to languish in jail for up to 14 days (if not longer, in Snohomish County) before defense counsel can address their release conditions from a discovery-informed perspective.  Pretrial detention has a disproportionate racial impact and has life-changing effects on one’s employment, housing, child custody, and access to health care. Ensuring timely arraignments will help safeguard the accused’s fundamental rights and reduce the excessive and harmful detention of individuals on unaffordable bail.