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Guest commentary / Criminal Justice


Bail amounts aren't what they seem

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By Mark Roe
Published:
After the 2009 murders of four police officers in Lakewood, Pierce County, a bail task force was assembled to look at Washington bail practices and:
A. try and figure out what went wrong that allowed the killer out of jail in the first place, and
B. fix it.
I was the representative of our state's 39 elected prosecuting attorneys.
Most people on that task force thought they knew what "bail" meant, in the context of crimes, criminals and jail. After the murders, however, even some who have worked in criminal justice for decades were shocked to find out how wrong they were.
We discovered that how much money it takes to get someone out of jail is as much or as little as a bonding company will accept. We learned that some are willing to accept very little, or even nothing paid up front at all. The public is being put at risk by these decisions, which should be made by judges, not businesses.
The task force met several times, and included many thoughtful, experienced and knowledgeable people. Legislators, judges, cops, defense attorneys, victim advocates and the bail bonding industry were all represented.
In our first meeting, we identified a disturbing and curable flaw: that bonding companies, not judges, were in control.
I am writing today to tell you that currently, it appears the Legislature may do nothing to fix it. I am frustrated by that, and I think you should be, too.
When a judge sets bail at, say, $50,000, an almost universal belief was that to get out of jail, the person being held would have to give a bonding company at least 10 percent, or $5,000, up front. The bonding company would then post a bond for the whole amount and the suspect could be released. We all learned that this was a myth.
The Lakewood killer had been in jail on $190,000 bail, but was released having paid only around $3,000. (Ten percent would have been $19,000.) His family simply shopped around to different bonding companies and got the best deal they could. Public safety for sale to the lowest bidder. No episode of "Myth-busters" affects your safety like this busted myth. Perhaps this is one reason the state of Oregon eliminated bail bonding altogether, and now only accepts cash bail.
As a prosecutor for 25 years, I have attended thousands of bail hearings, and left them thinking I knew how much money it was going to take to get the guy out. Victims have walked out of court feeling either safe or not because they believed they knew, too. Judges set bail thinking they "knew" it would take at least 10 percent down for a defendant to be released.
We were wrong, and we know that now. The only remaining question is: Will the Legislature do anything about it? It doesn't have to be 10 percent, but it has to be some certain, defined amount.
After the task force concluded its work, a bail bill was proposed in the Senate that in my opinion was akin to rearranging the deck chairs on the Titanic, while continuing on course for the iceberg. That bill deliberately ignored the central issue of certainty, and of defining bail. I spoke with local legislators like Steve Hobbs (D-Lake Stevens), and he helped kill that flawed bill. As prosecutors we committed to working toward a bill this year that actually takes on the elephant in the room, and puts "truth in bail."
We met with representatives of Washington's bail industry and crafted a compromise. We agreed that everyone, including you, deserves to know exactly what a defendant will have to come up with, up front, to get out of jail. No guesswork. While a bonding company can rightfully decide what total premium to ultimately charge, the down payment, the amount it is going to take for the person to be released, has got to be known.
We compromised on 5 percent. That way, no matter what side deal is made with the bonding company, everyone will know the least amount a defendant must pay before they get out. Judges can set bail accordingly, and with confidence.
It surprised me and may surprise you that there are powerful lobbying forces and out-of-state bonding companies who do not agree with this. The Judiciary Committee and full Legislature need to resist those forces. They will listen to you. Please ask your senator or representative to push for truth and certainty in bail, because you, we, everyone deserves to know the truth.

Mark Roe is the Snohomish County prosecutor.

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