In the United States, people accused of crimes are presumed innocent until proven guilty. Yet nationwide, 65 percent of the people incarcerated in local jails are awaiting court proceedings, according to the federal Bureau of Justice Statistics.
The gap between the law’s lofty ideals and today’s common practice has put the issue of pretrial release in the spotlight.
Not only could reform benefit the accused, it could help ease jail overcrowding.
The Clark County Jail regularly houses close to double its capacity, and the county says it faces an upgrade that could cost $63 million to $284 million lest the jail burst at the seams.
From 2009 to 2015, 59 percent of inmates at the Clark County Jail were being held before sentencing, according to information calculated by jail administrators. The average daily population for those years was about 718.
The statewide average for the period was 45 percent.
“More people in jail (means) more deputy sheriffs, you have to have more space, plan more medical care, I mean everything,” Clark County Superior Court Judge Scott Collier said. “It’s not inexpensive to house people in a county facility.”
But for many defendants, making bail is tough.
Washington’s court rules start with a presumption that most people arrested will be free under supervision prior to their trials. Legal experts generally consider Washington’s court rules on the matter fairly strong.
But, “Fundamentally, it’s not followed very well,” said Jamie Hawk, a former federal public defender who now works for the Washington American Civil Liberties Union as its legal strategy director.
Washington rules say judges should start with a presumption toward pretrial release of suspects. The rules make exceptions for capital crime cases, or if there’s a substantial risk to public safety.
Judges can confine people without bail in the most serious cases. In less serious cases they may release them on their own recognizance. Or they may assign bail, which allows defendants to be released from jail after they post a certain amount of cash or a bail bond. But for many defendants, cash bail or the cost of a bail bond is out of reach.
Hawk and other reform advocates say that making payment a condition of pretrial release means more poor people and people of color will remain behind bars — regardless of their flight risk or threat to public safety — than wealthier, white people, a situation reformers decry as fundamentally unjust.
That kind of disruption can upend someone’s life and lead to more criminal activity, Hawk said, or drive people to take poorly negotiated plea deals to put their jail stay behind them as soon as possible.
It’s frustrating, she said, to watch a judge find a defendant is unable to pay for an attorney and then routinely impose cash bail.
Half of all Americans can’t come up with $400 in an emergency, Hawk said, citing a 2016 study from the Federal Reserve, so how are those caught in the courts system, who tend to be poorer than most, supposed to make bail?
“Your wealth and your ability to access money should not be a basis on which you’re held in jail and your freedom can be taken away,” she said.
Only one state, New Jersey, has eliminated cash bail, according to the Pretrial Justice Institute, a national pretrial justice system reform nonprofit.
Collier said cash bail is and will likely remain a useful tool for courts, but said there’s increasing interest locally and around the state to review how courts set pretrial conditions. In other words, are there better ways to let defendants remain out of custody until their cases are resolved without creating undue risk?
In Clark County, Collier said, the topic tends to get rolled in with ongoing discussions with judges, prosecutors, defense attorneys and other county and law enforcement officials regarding the jail.
Reviewing how and when bail is set has also been a major issue for the state Superior Court judges association, Collier said.
“I really do support looking at it, and I think changes are in order, by the education and exposure that I’ve received,” he said. “It’s one of those things I think is getting some momentum.”
The successful pretrial programs he’s seen seem to have a quality assessment tool on the front end, when people are arrested and brought to court, and quality support and supervision for those who are released.
Better supervision and services could mean things as simple as text message reminders about court dates, Hawk said, but can include connecting people with housing, résumé help or substance abuse treatment.
“The idea is if we give them more supervision and services at that point, then they can be more successful at staying out (of jail) and not creating new problems,” Collier said.
By contrast, the assessment he sees for those newly arrested is generally strong in investigating and summarizing a defendant’s criminal history, he said. But it doesn’t get into the personal details that might help a judge craft appropriate release conditions.
The judge might learn a person has a job, he said, but doesn’t get a sense of for how long, or how secure it is, for example.
“That assessment tool isn’t really evidence-based, it isn’t really effective. To have an effective assessment tool, you’ve got to be able to give a lot of resources to getting the background, the history, meeting with the individual,” he said. “We don’t have that level of background information. The idea is to get more of that to make better assessments, and to try to get more people out of the jail.”
Counties try reforms
That judges don’t always have information is a piece of one of the larger parts of the problem, Hawk said.
There is little data about the efficacy of any pretrial release condition relative to the crime or the accused, because most jurisdictions don’t actually keep track of it. Which is to say, Hawk said, many counties have no concrete way of knowing when people are returning to court based on whether they were made to pay a bond, released or otherwise ordered to satisfy some other condition. Nor do they know much about the accused.
Both Spokane and Yakima counties are experimenting with reforming their pretrial systems, gathering more data on defendants, using different assessments and increasing supervision options. The Legislature and other counties are watching those efforts closely, Collier said.
Setting up new assessment tools or supervision programs still costs money, he said, and the savings over jail costs isn’t obvious. Also, no one wants to start in one direction or set up a new program if state law is going to change, or if a better strategy comes along.
There’s also the matter of selling such programs politically.
“It’s easy as a citizen to say ‘Lock ’em up, keep the community safe. So he’s only stealing property but that’s my property they’re stealing,’ and I understand how they can feel that way,” Collier said.
“They’re looking at it as an injured party … and we’re supposed to, and I think we are, looking at it from a constitutional protection status. Presumption of innocence, presumption of release.”