Reforming Bail Practices in Washington

The presumption of innocence is a basic tenet of the criminal justice system. State and federal law say that every person charged with a crime should be presumed innocent until proven guilty. Yet, in practice, thousands of people who have not been convicted are held in jail for days, months or even years, through the conclusion of their trials. The Constitution grants the right to release to anyone charged with a crime. There are only two exceptions:

• People charged with capital offenses where there is substantial evidence of guilt
• People charged with crimes punishable by life in prison where they have shown a high propensity for violence that puts others at risk

In addition, court rules presume the release of defendants in noncapital cases without any conditions.

Court rules require judges to consider the defendant’s financial condition when setting bail. The process and timing of setting bail may vary slightly in different places, but courts in Washington follow broadly similar processes. Following arrest, a person is booked into jail; a judge then has 48 hours to decide whether there is enough evidence to charge him or her with a crime. Bail is typically set at that time, but it may also be set up to 14 days later when formal charges are read to the defendant.

In 2017, the Washington State Superior Court Judges’ Association, the District and Municipal Court Judges’ Association, and the Supreme Court’s Minority and Justice Commission formed the Pretrial Reform Task Force. The Task Force’s mission was to gather data and formulate recommendations concerning the expansion of pretrial services statewide. We conducted the audit independently of the task force, but worked with it to gain an understanding of bail and pretrial practices and to ensure we did not duplicate efforts.

Almost 30 cities or counties in Washington have put pretrial services into action. The services offered vary by jurisdiction, and include elements listed below. In general, these places report that their pretrial programs are successful. For example, Yakima County uses a risk assessment tool to help decide whether a defendant should be released before trial. County officials there said around 75 percent of all released defendants appear for scheduled court appearances.

Pretrial services offered by Washington jurisdictions include:

• Mental health treatment and evaluations
• Service or treatment referrals
• Court date reminders
• Electronic monitoring
• Home visits by law enforcement or pretrial staff
• Regular office check-ins with pretrial staff

On a typical day, the audit estimates about 14,500 people are confined in jail statewide. About 8,000 are serving sentences or are being held on probation or parole violations. The other 6,500 people have not been convicted of a crime and are in jail awaiting trial. Almost three-quarters of those awaiting trial were charged with non-violent crimes while half were charged with only misdemeanors. However, not all of those awaiting trial would be likely candidates for pretrial services.

Auditors analyzed the risks, and concluded about 4,700 defendants awaiting trial would be candidates for pretrial services. About 2,300 defendants had a lower risk of reoffending and failing to appear in court; the other 2,400 were higher risk defendants.

Depending on the decisions made by local authorities, between 2,300 and 4,700 people might be reasonable candidates for release through pretrial services instead of bail. In other words, about 72 percent of those awaiting trial in jail on a typical day could be released through pretrial services.

Releasing defendants and supporting them through pretrial services rather than holding them in jail could save taxpayers money. Based on cost data that local governments submit to our Office, the average cost of operating a jail in Washington is about $100 per inmate, per day.

On average, pretrial services are less expensive per person, per day than holding people in jail. The costs for five Washington counties we examined ranges from $1.80 to $7.26 per person, per day, depending on the number of participants and services offered. All programs included risk assessments for each participant and check-ins via phone or in person. The most expensive program included extra services like bus tickets for defendants to get to court and electronic home monitoring. The average daily cost for pretrial services in these five counties is $3.59 per person per day. This is about $7.33 per person per day less than holding someone in jail. However, pretrial programs may require additional start-up costs that we did not consider in this analysis.

We projected the average per-inmate savings through pretrial services to the total population of defendants who are candidates for pretrial release. If local authorities across the state released all 2,300 lower-risk defendants through pretrial services, savings would total more than $6.1 million annually. If they also released the 2,400 higher-risk defendants through pretrial services, taxpayers would save an additional $6.4 million annually.

The audit looked at two commonly used outcomes: reoffense rates and failure-to-appear (FTA) rates. Reoffense rates measure how often defendants who are released awaiting trial commit new crimes. FTA rates measure how often these defendants miss at least one court date.

Using court and criminal history records from Spokane and Yakima counties, we compared actual reoffense and FTA rates of people released through pretrial services to those released on bail before the counties put pretrial programs in place.

We found:

The reoffense rates in Spokane and Yakima counties were slightly lower for defendants released through pretrial services compared to those released on bail.

The FTA rates showed defendants released through pretrial services in Spokane were much more likely to show up for their court hearings than those released on bail. The FTA rates, respectively, were 38 percent compared to 53 percent, which was a statistically significant difference.

We could not calculate the FTA rate for Yakima’s entire population of defendants released on bail and pretrial services due to inconsistent and incomplete data. However, the Pretrial Justice Institute study did compare Yakima’s FTA rates before and after pretrial services. That study found they were similar, with FTA rates of 27 percent before implementation of the program and 28 percent after.

Pretrial services are only available to people who have the right to bail. Under current bail practices, these defendants are only released if they can afford it. Pretrial services programs release more people, regardless of their ability to pay bail. However, this may also lead to a greater number of people who may commit another crime, harm other people and fail to appear at a court hearing. When defendants miss court hearings or avoid prosecution altogether, the criminal justice system incurs additional costs. One study reported that each missed court appearance results in about $50 to $80 in variable costs.

Despite an increase in the number of FTAs, local authorities would likely still see savings.

The benefits to those detained because they cannot afford bail are important. Several studies show people who stay in jail before trial often have worse outcomes in their legal cases, even after accounting for factors like criminal history. Multiple studies in different places show remaining in jail before trial increases the probability of conviction, guilty pleas and jail sentences, including longer sentences.

This audit did not make any recommendations.