King County bail reform hinges on pretrial decision making

At 8:40 a.m., the first domestic violence arraignment of the day in King County Superior Court was heard. And by 8:51 a.m., Judge Sean O’Donnell had made his decision.

The suspect pleaded with the judge to lessen his bail — set at $150,000 — to a lower, more affordable amount and made the case for his release. A man in his early 30s, the suspect held a job at LA Fitness and freelanced on the side as a DJ. He has resided in Seattle for more than 15 years. He has family connections in the area. And he takes classes online.

The suspect faces charges of unlawful imprisonment, assault in the fourth degree and interfering with domestic violence reporting.

He’s accused of repeatedly punching and kneeing his ex-girlfriend in the belly. She was 32 weeks pregnant when the incident allegedly took place on March 3, court documents state. He groped the victim, in an attempt to initiate sex and removed the victim’s phone, preventing her from reaching out for help. He covered her mouth to stifle her cries. Their 6-year-old daughter heard the struggle and came in to find the defendant on top of her mother.

It wasn’t until after the defendant fell asleep that the victim was able to silently text message 911 for help. An ambulance arrived and took the victim to a hospital.

But before Judge O’Donnell would make his decision he would first review the facts, information of the case and the suspect’s prior history. Judges operate on the “presumption of release” in noncapital cases, a court rule that says suspects must be released unless there’s reason to believe the accused will commit a violent crime or intimidate witnesses, interfere with the administration of justice, or ditch out on court hearings.

“This court rule tells me to look at every option, short of setting bail to get someone back out while they wait for trial,” O’Donnell said. “The policy or reasoning behind this presumption of release flows from the presumption of innocence and how negative it can be to be in custody … So the rule says I have to look at every alternative.”

In King County, some jail alternatives include electronic home detention, work and education release and “community center for alternative programs,” formerly known as day reporting.

O’Donnell settled on allowing Work Education Release for the suspect, if a lower bond amount of $75,000 was posted. And a no-contact order imposed.

The courtroom in downtown Seattle on March 19 wasn’t as packed as it typically is. There were 28 domestic violence cases on the docket to be heard that Tuesday. The day before, 46 general arraignment cases were decided on.

For O’Donnell it’s a typical day. It’s fast paced, but with huge consequences, he stressed.

It becomes a hard balance when making judgments pertaining to domestic violence cases. Family often testifies, begging for their significant other to be released because of financial and child care dependency. Sometimes it’s mothers that plea.

“Now the challenge in all of this is I have very little information,” O’Donnell said. “I have to do my best to predict the future, keeping in mind the legal framework.” The decision making happens every day in superior courts across all 39 counties in Washington.

But it’s ultimately the judge’s decision, and the effects of their choices ripple throughout family systems. Jobs are sometimes lost. And victims sometimes end up in homelessness because of their reliance on their partners who are now held in jail. Unnecessary detention is costly to taxpayers too.

And data has shown that being held pretrial affects the likelihood of conviction. Research conducted at the University of Pennsylvania Law School found that in Philadelphia, pretrial detention leads to a 13 percent increase in the likelihood of being convicted. The author of the 2016 published paper argues the effect is due to an increase in guilty pleas among defendants who would have likely been acquitted or had their charges dropped. Pretrial detention also leads to a 41-percent increase in the amount of non-bail court fees owed and a 42-percent increase in the length of incarceration sentence, the study showed.

“We don’t take these decisions lightly,” said Judge Veronica Alicea Galván, another judge hearing cases in King County Superior Court that day. She added that the many years spent in law helped to develop the skills needed when making such tough choices.

Task force

An investigation looking at pretrial reform began in 2017 after a task force, dubbed the Washington Pretrial Reform Task Force, was formed that June.

O’Donnell, a part of the group’s three-member executive committee, was joined by judges, prosecutors, public defenders, bail business owners, court administrators and officials, community members and researchers. Their intent was to study the factors that drive pretrial decisions, leading to high detention rates.

Pretrial detention numbers nationwide have been on the rise, with many jail populations holding detainees that can be safely released while awaiting their trial date, the task force wrote in its 38-page final recommendations report released in February.

Nationally, about 65 percent of the average jail population consists of pretrial defendants, the report states, meaning a majority of those being housed in jails have not yet been convicted of crimes. In King County, the average jail population is comprised of 77.7 percent of pretrial defendants.

An audit into bail reform and pretrial services conducted by Washington state (using the task force’s report as a resource) found that of the estimated 14,500 people confined in jails statewide in a typical day, about 8,000 are serving sentences or are being held on probation or parole violations. The remaining 6,500 people, the report states, are in jail awaiting trial.

Three-quarters of those held pretrial are accused of non-violent offenses, and the other half charged with misdemeanors.

And 4,700 defendants awaiting trial would be candidates for pretrial services, state auditors determined. About half of those defendants had a lower risk of reoffending and failing to appear in court. The other half 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,” the report’s key findings state.

And providing them pretrial services could save taxpayers between $6 million and $12 million a year.

Specifically the Washington Pretrial Reform Task Force examined three areas: pretrial services, risk assessment and data collection to inform better risk analysis and assessment.

And the report details pretrial services, some with little cost, being implemented around the country. New York has implemented text-message reminders, improving their court appearance rates by 26 percent for low-level offenses.

In Washington state, in Yakima County, automated text and call message reminders have helped the county reach a 75-percent appearance rate. In Spokane, the text-messaging reminder system relies on the Spokane County Public Defender’s Office to send reminders to clients before court dates. They’ve also seen improvements in appearance rates.

A problem discovered and detailed in the report is a lack of cohesive data collection around the state needed to track pretrial practices effectively. Key terms in data tracking across the state are not uniform, and no uniform data collection process exists, the report states.

In King County, different entities collect data, but none of these data systems easily communicate with each other. And their key definitions don’t agree.

“When key definitions that can really make a difference — like what ‘failure to appear’ means — don’t agree, then looking at who is committing crimes while on pretrial release or who is not showing up to court can get muddy,” O’Donnell said.

The only state he could locate with uniform data collection standards statewide was on the pretrial population of Florida, he added.

“Good data can help inform good policy decisions, and not collecting the right data or agreeing on definitions means it’s harder to navigate important policy decisions,” O’Donnell said.

Risk assessment tools

Some counties have moved toward using pretrial risk assessment (PTRA) tools, to aid judges in decision making. The tools are designed to provide information about how a certain person would likely act, if they would fail to appear to court or have a high risk of committing violent offenses while on release.

Yakima County adopted a PTRA tool in 2016 and has successful results, the county claims. It was able to release 20 percent more people awaiting trial, without impacting public safety or any material increases to failure to appear numbers.

The risk assessment tool also helped to equalize the disparity between the number of released white defendants and Latino/Hispanic defendants. About 49 percent of Latino/Hispanic defendants were released pre trial before implementing the tool, compared to 64 percent of white defendants. After tool utilization, Latino/Hispanic defendants were released 26 percent more often, at about the same rate as white defendants.

Jaime Hawkof the American Civil Liberties Union (ACLU) is the legal strategy director for Washington’s Campaign for Smart Justice. Hawk thinks people should tread carefully when considering Yakima’s “successes” with the tool. The data was collected during a six-month time frame in 2016.

Other changes had occurred at about the same time. Yakima began providing counsel for defendants beginning with their first court appearance. No longer do defendants have to stand alone before a judge and prosecutor.

And court was moved to happen right after lunch. That gave time for public defenders to meet with everybody, prior to court. They could use the time to verify employment, gather needed information and be prepared to argue for their client’s release.

“The role of defense attorney is so critical,” Hawk said. “It’s humanizing the defendant, telling their story, giving relevant information to the judge who is making decisions quickly.”

Last July, more than 100 civil rights and community based organizations, including the ACLU, vocalized their opinions against the use of PTRA tools in substitution on money bail. They feared the tools could further worsen racial disparities, allowing for further incarceration. Instead, they said, court systems should be reformed and “end money bail, severely restrict pretrial detention, implement robust due process protections, preserve the presumption of innocence and eliminate racial inequity.”

Judge Galván worries that over use of technology can create a dependency, and may cause someone to forget how to pass judgment on their own, without the tool’s help.

People have fallen on both sides of the PTRA tool argument, some advocating for their use and others warning against it. That is why the task force opted not to make a recommendation of using a PTRA tool, but rather provided guidelines to those opting to use one.

“There will never be an instance where we say, ‘Alexa, should I release the defendant?’” Judge O’Donnell said.

Money bail set too high

Some think judges are setting high bail amounts, out of reach for poor defendants, and causing them no choice but to remain in jail.

“I generally think it’s fair and reasonable to assume, if people had the means or ability to get out of jail, most people would,” Hawk said. “I think that often times bail is set too high, and there’s a huge portion of people living in poverty.”

For defendants plagued with high bail amounts, the use of a bail company may come in handy. But in Washington, those companies often charge a nonrefundable 10-percent fee of the bail amount. For bail set at $5,000, that means a defendant will have to shell out a $500 fee.

“If bail is set at $4,000 or $5,000 or anything higher, it’s generally out of means of most Americans,” Hawk said.

An ACLU report, arguing the need for bail reform, found that bail amounts in 2014 averaged between $5,000 and $50,000 in a sample Washington county, depending on the offense. In a recent study, the continued, 47 percent of people said they could not cover the emergency expense of $400, or would have to sell something or borrow money in order to.

“Bail is just the sort of emergency expense that most Americans cannot afford,” the report says. “So, under current bail rates and practices, most Americans are vulnerable to being kept locked up before trial if they should ever face criminal charges.”

When defendants are unemployed or on food stamps, may be working part time or at a low wage job, the judge will make a finding, determining the person to be indigent and unable to afford to hire their own attorney. A public defender then will be appointed.

“Sometimes that judge will turn right around and set a high bail amount,” Hawk said. “If the person can’t afford to hire an attorney, how will they pay bail?”

For King County, the work looking into pretrial services and bail reform continues. A workgroup, of the county has been convening, Hawk said, in an attempt to gather the needed data around bail numbers and racial disparity.

Without first having the data on racial disparity, Hawk said, it’s hard to know what the answer is.