GR 9 COVER SHEET

Suggested Amendment to

WASHINGTON STATE COURT RULES:

CRIMINAL RULES FOR SUPERIOR COURTS

CRIMINAL RULES FOR COURTS OF LIMITED JURISDICTION

Amend TRIAL COURT RULE 3.2

RELEASE OF ACCUSED

Submitted by Judge Ronald Kessler (Retired)

_____________________________________________________________________

A.        Name of Proponent:          Judge Ronald Kessler (Retired)

B.        Spokesperson:                   Judge Ronald Kessler (Retired)

C.        Purpose:       CrR 3.2 and CrRLJ 3.2 pertaining to release of the accused directs that accused persons charged with non-violent crimes be released on personal recognizance; as it is currently written the rule is often not honored. The proposed amendments would provide for a specific obligation of the trial courts.

When an accused is charged with a non-violent crime and is either on probation or community custody or has been released on personal recognizance for a previous offense, the court (or DOC in some cases of community custody) has the power to detain on the previous offense pending a decision on whether or not the new charge violates the condition that defendant commit no crimes, CrR 3.2(k)(2), CrRLJ 3.2(k)(2). Thus, regardless of whether or not the defendant is released on the new offense, he or she can be appropriately detained on the older one pending a hearing.

This proposal would require trial courts to release anyone charged with a non-violent crime if he or she has not previously failed to appear on the new offense, is not on probation, and is not on pretrial release for an older crime. This clearly limits the discretion of the trial court which is the intent of the current rule. The proposal mandates release for most people charged with non­violent crimes, but maintains appropriate discretion for others.

Since many people on probation or pretrial release on earlier cases have those matters in other jurisdictions or court levels, it is difficult for those courts to learn that the defendant has been charged with a new offense. The proposal would result in more people being released without condition but also protect public safety for others.

I also propose that CrR/CrRLJ 3.2(b)(4), often called the 10% appearance bond, be repealed. The current rule permits a court to set a bail amount at 10% of the surety amount. The defendant then signs a bond agreeing to pay the court the remaining 90% if the defendant violates a condition of release. This does allow defendants to be released without buying a surety bond and paying a non-refundable premium. The flaw is that courts do not even try to collect the 90%. In King County, the Department of Judicial Administration decided that it is not worth the time and energy to collect this 90% since most defendants are indigent and judgment proof

The proposed alternative will allow the court to set an amount of surety bond as required by the Constitution, Const., art. 1, § 20, but also set a cash bail amount at less than the surety bond, in the court's discretion. As an example, the court could set a surety bond at

$20,000 or cash of $1000. If a defendant posts the cash and complies with all conditions, the money would be refunded in full.

The proposal also eliminates references to capital and noncapital cases since we no longer have a death penalty in Washington.

Some jurisdictions in the United States are working towards elimination of money bail. Washington cannot do that via legislation or a court rule absent a constitutional amendment. This is a bail reform proposal that maintains the required surety bond, requires courts to release more defendants, but maintains discretion for those who may have committed a new offense while an older one is still extant.