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When can a Washington court impose bail in a criminal case?

Posted by Brian C. Zuanich | Jun 17, 2019 | 0 Comments

A person charged with a crime is presumed innocent until proven guilty, which means that we shouldn't put people in jail until they're found guilty.

The State should put dangerous people in jail to protect the public.

All Americans probably agree with one of those two statements and I bet that most Americans probably agree with both statements.

So, when allegedly dangerous people are charged with crimes—before, obviously, they've been proven guilty—what do we do?

This question gets at the major dilemma confronting everyone involved in the criminal justice system.

To what extent can we restrict the liberty of innocent people?

Or … when and should courts set bail?

When is bail appropriate in Washington?

CrR 3.2 may be one of the most important—and definitely one of the most commonly referenced—court rules in Washington. This rule tells judges when, how, and whether they set bail on criminal defendants as a pretrial condition of their release—that is, while awaiting trial.

To impose bail (either cash or bond), the judge has to determine whether the defendant is:

  • Likely to commit a serious violence offense
  • Not likely to appear in court
  • Will intimidate witnesses or unlawfully interfere with the administration of justice

Bail is not the default choice for judges. Nor is it even the second, third, or, even fourth choice. Under CrR 3.2, judges must release defendants from custody on their own personal recognizance—meaning, on their own promise to appear for court unless the circumstances surrounding the offense or the defendant's criminal record support bail. Lawyers and judges call this the “presumption of personal recognizance.”

But even if the defendant is likely to commit a serious violent offense or skip out on court, bail is not the default, second, third, or fourth option. The court must consider whether other “conditions of release” will get the defendant to show up in court or protect the public.

Typical conditions include, for example (depending on the kind of case) not using alcohol or drugs, staying away from the alleged victim's home, or wearing an alcohol monitoring device. In lieu of bail, conditions of release restrict a person's freedom of movement and freedom of activity without necessarily putting them in jail.

Should the trial judge have set bail on Ingram?

Quran Imgram was, from his record at least, a dangerous person.

Convictions for escape, felony assault, burglary. Two convictions for robbery. Convicted for unlawfully possessing a firearm. Currently on probation in Oregon for a driving-related charge.

And, based on what the Clark County Corrections Release Unit learned about him, there were concerns that Ingram wouldn't show up at Court.

Prior failures to appear at Court. No family in Clark County. No jobs. No ties to the local community.

No surprise that the Clark County Release Unit recommended that that the court not release Clark from jail after the State charged Ingram with residential burglary (a felony) and violating a domestic violence court order (a gross misdemeanor).

(In some jurisdictions, release units interview investigated arrested individuals and provide information about the courts for a determination of release and financial eligibility for appointment of public defender).

Also, no surprise that the State asked the trial judge to impose $60,000 bail and deny pretrial release.

Finally, little surprise that a Clark County Superior Court judge agreed and set $60,000 bail.

A jury later found guilty of all charges. Ingram appealed on several grounds, including the court's initial decision to set bail.

But that's not the most important question

In State v. Imgram, the Court of Appeals ruled that the trial court legally erred in setting bail—but not for the reason you might think.  Based on Ingram's history, the Court wrote, the trial judge reasonably decided that Ingram was a “substantial danger” and that he “would be unlikely to appear” in court in the future.

Where the judge went wrong was in not considering other alternatives before setting bail.

Let's return to CrR 3.2 Maybe the most important provision of this important rule is CrR 3.2(d)(6).

This section reads: a court may impose bail only “if no less restrictive conditions or combination of conditions” would reasonably assure the safety of the community. The court also has to consider a defendant's financial resources when setting bail.

A wealthy defendant can post cash bail. Someone with property can put the up the proper collateral to bond out of jail. But for an indigent person, even $1,000 bail is like setting $1 billion bail. For many defendants, bail is de factor pre-trial incarceration for the entire case.

Maybe no conditions other than bail would have protected the community from Ingram, but we don't know, because the trial court didn't consider alternatives.

Would it have been sufficient to order Ingram to have no contact with his estranged wife while his case was pending?

Would it have been sufficient to order him not to possess any firearms?

Would it have been sufficient to order Imgram to report to the Clark County Probation department every day and check-in, to ensure that he was complying with the law?

Would it have been sufficient to order Ingram to wear an electronic home monitoring bracelet to monitor his movements throughout the day?

How about several of these conditions? Or how about all of these conditions?

We don't know because the court didn't consider them. The State asked for bail and the court set bail.

Simple, but not legal.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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