By Superior Court Judge Katie Loring
On May 1, our country celebrated Law Day, a day to recommit to the rule of law and educate on the judicial branch of government. Law Day caused me to reflect on an issue I know comes up in conversation — why are people accused of crimes not automatically held in jail or required to post bail? When a crime is alleged, people are upset and may be afraid. Despite these understandable emotions, I encourage you to consider the constitutional and legal principles that apply.
The Presumption of Innocence
A foundation of the criminal legal system is the constitutional presumption that people accused of crimes, even horrible crimes, are presumed innocent — unless and until proven guilty beyond a reasonable doubt, after a jury trial. A similarly important constitutional principle is the fundamental right to physical liberty, which cannot be infringed by the government without due process of law.
The Purpose of Bail
The law requires that bail be used not as punishment or to send a message, but to ensure that a person charged with a crime appears for future court hearings, complies with court orders and does not endanger the public or the people involved in the case. More specifically, Washington criminal procedure assumes that a person charged with a crime should be released from jail on their promise to return to court, without bail (except for a capital offense).
These principles are important. We know that when defendants are held in jail awaiting trial, it is more difficult for them to prepare their defense, they often can’t keep employment or housing and they may even lose custody of their children. Requiring monetary bail (cash or bond), even in low amounts, disproportionately impacts low-income people.
Sometimes bail is necessary because there are no other requirements that can be imposed to keep the public safe or to ensure that the defendant appears for future court hearings and follows court orders. But the law tells us that bail is not the starting place.
Setting the Terms for Release
To consider ordering bail in Washington, the judge must first make findings that a defendant either likely will not appear at future hearings, or poses a specific danger to the community or the witnesses in the case. The judge must consider:
The individual facts, including the circumstances of the alleged crime, prior criminal convictions and past failures to appear for court;
Stabilizing factors like employment and connections to the community;
Whether there are things like a no-contact order or an alcohol monitoring device that would allow the defendant to remain in the community safely while their case is pending; and
The person’s financial ability to post bail.
Based on the individual facts presented, the judge must objectively decide the least restrictive requirements that will reasonably assure the defendant appears at future hearings and that will protect the community and ensure compliance with court orders.
Delivering Justice
People impacted by crime understandably want justice. We know that criminal charges impact not only the victim and the person accused but also their families, those working in the criminal legal system and the entire community. True justice requires applying the law, including the constitutional presumption of innocence and right to liberty, to the individual facts carefully and objectively, without emotion or consideration of outside influence. Only when our laws are applied impartially and thoughtfully can the courts deserve the trust and confidence of all.
