Background:

Pretrial release is the release of the accused from detention pending trial. The state Constitution guarantees the right to bail for people charged with non-capital crimes, and this right has been interpreted as the right to a judicial determination of either release or reasonable bail. Wash. Const., art. I, § 20; Westerman v. Cary, 125 Wn.2d 277, 291-92 (1994). For capital offenses where the proof of the accused's guilt is evident or the presumption of the accused's guilt is great, there is no right to bail.

Pretrial release and bail are favored by courts in appropriate circumstances because the accused is presumed innocent and because the state is relieved of the burden of detention. Westerman, 125 Wn.2d at 291. The purpose of bail is to secure the accused's presence in court; bail is neither punishment nor a revenue collection vehicle. See State v. Banuelos, 91 Wn. App. 860, 863 (1998); Landry v. Luscher, 95 Wn. App. 779, 778 (1999); United States v. Salerno, 481 U.S. 739, 746-47 (1987) (overruled on other grounds).

A. Court Rules Governing Bail

Courts have inherent power and the statutory authority to make rules regarding procedure and practice in the courtroom. Courts have ruled that setting bail and releasing individuals from custody is a traditional function of the courts. State v. Blilie, 939 P.2d 691, 693, 695 (1997); Westerman, 125 Wn.2d at 290-91. General criminal court rules, which are promulgated by the Supreme Court, and local criminal court rules govern the release of an accused in superior court criminal proceedings. Wash. CrR 3.2, 3.2.1; Wash. CrRLJ 3.2, 3.2.1. The criminal court rules provide the following framework for pretrial release.

a. Pretrial Release in Noncapital Cases

In a noncapital case, there is a presumption that the accused should be released unless the court determines either: (1) the release will not reasonably assure that the accused will appear; or (2) there is a likely danger that the accused will commit a violent crime or interfere with the administration of justice. Whether the accused poses a danger to the community or is a flight risk is a factual determination within the judge's discretion.

i. Flight Risk

If the court finds that based on specified relevant factors the accused is not likely to appear, then the court imposes the least restrictive conditions necessary to reasonably assure the accused's appearance. Conditions include requiring the execution of: (1) an unsecured bond; (2) a bond and the deposit in cash or other security of an amount no more than 10 percent of the bond; and (3) a bond with solvent sureties or cash.

ii. Violent Crime or Interference with the Administration of Justice

If the court finds that there is a substantial danger that the accused will either commit a violent crime or interfere with the administration of justice, the court may impose conditions of release. For example, the court may require the accused to post a bond or deposit cash, conditioned on compliance with the conditions of release. The court may only impose this condition if no less restrictive condition or combination of conditions would reasonably assure the safety of the community.

Factors that the court considers in determining which conditions to impose to reduce the danger that the accused poses to the community include:

the accused's criminal record;
the willingness of community members to vouch for the accused's reliability and assist with compliance with the conditions of release;
the nature of the charges;
the accused's reputation, character, and mental condition;
the accused's past record of interference with the administration of justice;
evidence of present intimidation of witnesses;
the accused's record of committing offenses while on pretrial release, probation, or parole; and
the accused's record of use or threatened use of deadly weapons, especially against victims or witnesses.

b. Pretrial Release in Capital Cases

In capital cases, the criminal court rules provide that the accused shall not be released unless the court finds that releasing the accused with conditions will reasonably assure the accused's appearance, will not significantly interfere with the administration of justice, and will not pose a substantial danger to another or the community.

c. Delay of Release and Violation of Conditions

The court may delay the release of the accused under the following circumstances: (1) the accused is intoxicated and release would jeopardize the safety of the accused or others; or (2) the accused should be interviewed by a mental health professional for possible commitment to a mental treatment facility. The accused must be released within 24 hours, unless grounds exist for continued detention.

If the accused violates the conditions imposed by the court on his or her pretrial release, or if the accused fails to appear in court, the court may issue a warrant for the accused's arrest or impose sanctions or further conditions.

B. Federal Pretrial Detention

Under the federal Bail Reform Act, 18 U.S.C. § 3142 (2006) (Act), a judge may issue an order: (1) releasing the accused on personal recognizance or execution of an appearance bond; (2) releasing the accused on conditions; (3) temporarily detaining the accused; (4) or indefinitely detaining the accused. The accused may be indefinitely detained following a detention hearing in which the judge determines that no condition or combination of conditions will reasonably assure the accused's appearance and the safety of any other person and the community.

The detention hearing is held on the motion of the state or the judge in a case that involves a serious risk that the accused will flee or attempt to obstruct justice. The detention hearing is held on the motion of the state in a case that involves a crime of violence, a crime for which the maximum sentence is life imprisonment or death, a controlled substance offense the maximum sentence for which is ten years or more, or a felony if the accused has been convicted of two or more specified serious offenses.

The Act provides procedures for the detention hearing, as well as a list of factors to be considered in the determination whether any condition of release will reasonably assure the accused's appearance and the safety of any other person and the community. The U.S. Supreme Court has held that the Act does not violate an accused's right to due process under the Fifth Amendment because it carefully limits the circumstances in which pretrial detention may be imposed. Salerno, 481 U.S. at 747-50.