The Financial Impact of Criminal Charges — An Unequal Debt to Society (Part Two)
**On June 4, 2020 the Washington Supreme Court issued an open letter to the judiciary and legal community recognizing deep-seated and continuing institutional racial injustice and calling for action to address systemic inequities. The Washington State Law Library is dedicated to furthering the Court’s goal by publishing stories that highlight the historical context surrounding systemic racism and efforts to dismantle it.**
Washington has long been a leader in the equal justice movement, dating back decades to the Supreme Court orders creating the Access to Justice Board as well as the Minority and Justice and Gender and Justice Commissions and others. The public and private partnerships we have built around these efforts are truly remarkable. Additionally, the recent work of local courts in organizing legal financial obligation “reconsideration days” has inspired other courts across the nation. And, of course, Washington is receiving national attention for our work in addressing implicit and explicit bias, such as through the Supreme Court’s adoption of General Rule 37 (jury selection). — Chief Justice Debra L. Stephens (A Conversation with the New Chief Justice, NWSidebar, January 17, 2020)
This is the second of a three-part series examining the financial impact of criminal charges for people of color in Washington State. This part provides an overview of existing laws related to bail and legal financial obligations and discusses measures taken to address their disproportionate impact on people of color. See part One for more background on the impact of bail and fees. Part Three will provide research sources.
Court Action
This summer, courts across the nation have spoken out following the death of George Floyd. North Carolina Supreme Court Chief Justice Cheri Beasley spoke from the bench saying, “These protests highlight the disparities and injustice that continue to plague black communities. Disparities that exist as the result of policies and institutions; racism and prejudice have remained stubbornly fixed and resistant to change. These protests are a resounding, national chorus of voices whose lived experiences reinforce the notion that Black people are ostracized, cast out, and dehumanized. Communities are crying out for justice and demanding real, meaningful change.” The Washington State Supreme Court crafted an open letter to the legal community in June, recognizing the “racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems” and encouraging the legal community to “work together to eradicate racism.” An August letter from the Washington Superior Court Judges’ Association promised to address structural racism, stating that “…laws, practices, and customs designed to oppress people of color have been adopted and compounded over decades to create a society that is structurally unjust. Doors swing open or close tightly, based only on the color of one’s skin. There can be no equal justice under law if there is no equal opportunity under law.”
Work to improve equity in the Washington State justice system has been underway for some time. At the state level, the Washington State Minority and Justice Commission was created in 1990. Recent activities of the Commission include updating judicial bench guides for legal financial obligations (LFOs) and bail and creating an online LFO Calculator Tool which is designed to assist judges in determining a defendant’s ability to pay.
Local courts have also been involved in reforming bail and fees. Recent legislation allows for the waiver of interest on some LFOs and in 2019 Kitsap and Pierce counties held LFO Reconsideration Days where attorneys met with defendants who needed help in navigating the waiver process. More than $7 million in fees were waived as a result. Another reconsideration day was scheduled in Spokane but has been postponed due to the COVID health crisis. Courts are providing additional pretrial services such as text message notification of upcoming court dates, mental health evaluations, and periodic check-ins. In Yakima County, a new risk assessment tool was one factor in eliminating disparate release rates for different racial and ethnic groups. A best practice that has been recognized in one Washington court is reducing LFO debt for people who complete their General Educational Development (GED) certificate. King County developed a bail reform plan in 2018 based on an examination of “the racialized roots of America’s bail system.”
Also of note, the Washington State Supreme Court has been called the most diverse Supreme Court in American History. Among its members are the co-chairs of the Washington State Minority and Justice Commission, Justice G. Helen Whitener and Justice Mary Yu, as well as the co-chair of the Washington State Gender and Justice Commission, Justice Sheryl Gordon McCloud, and chair of the Interpreter Commission, Justice Steven González.
Legislative Action
In 2018 the state legislature enacted an LFO relief bill for indigent people, HB 1783. This law prioritizes victim restitution over other costs and limits a return to jail only for willful failure to pay. The law also establishes many LFOs as discretionary rather than mandatory, establishes a waiver of interest, and provides for possible conversion of LFOs to community service.
A measure passed in 2020 concerned bail jumping, which often results from unintentionally missing court because of things like a child’s illness or transportation problems. According to the Washington Defender Association, a bail jumping charge “disproportionally harms people of color and people who are indigent.” Under HB 2231 courts are now required to notify all defendants in writing of their next court date. The bill narrows the crime of bail jumping and creates a new crime, Failure to Appear or Surrender, which is charged as a misdemeanor or gross misdemeanor depending on the underlying offense.
Like the Supreme Court, Washington currently has the most diverse legislative body in its history.
Legal Community Support
The Legal Foundation of Washington (LFW) offers a Race Equity Grant to fund work by legal aid providers to reduce the disparate outcomes that racism creates, particularly in the justice system. One program that has been funded by the foundation is Living with Conviction’s education program to help people waive interest due on LFOs. Living with Conviction also uses visual storytelling to illustrate the impact of LFOs.
Law Enforcement Action
The disparate financial impact of bail and fees on people of color is often grounded in first contact with the criminal justice system. According to University of Washington sociologist Professor Bob Crustfield, “…anyone who has contacts with police has a heightened likelihood of continuing to be in trouble with law enforcement … for African Americans, it’s even more. This cannot be explained by crime differences.” The February 2019 Washington Pretrial Reform Task Force report states that “communities of color are often policed more intensely than white communities, increasing contacts with law enforcement and thus the likelihood of arrest,” and that “criminal history may not accurately reflect actual crime commission anyhow, given disparate policing patterns and past racial bias (structural racism).” A clear statement recognizing bias and discrimination in law enforcement was put forth in June of 2020 by the Washington Association of Sheriffs and Police Chiefs. WASPC leadership wrote, “We recognize the hurt, trauma, and anger caused by a history in which our profession has often failed to live up to our own ethical ideals, particularly in our relationships with Communities of Color.“ According to the letter, law enforcement leadership is committed to working toward a more equitable criminal justice system. (WB)
Following are the current court rules and statutes related to bail and legal financial obligations:
Bail
· Rules for Superior Court — 3.2 Release of Accused.
· Rules for Courts of Limited Jurisdiction — 3.2 Release of Accused.
· RCW chapter 10.19 Bail and appearance bonds.
· RCW chapter 10.21 Bail determinations under Article I, section 20 — Conditions of release.
LFOs
· General Rule — 34 Waiver of Court and Clerk’s Fees and Charges in Civil Matters on the Basis of Indigency.
· RCW 3.62.010 Suspension of fine or penalty.
· RCW 3.62.090 Public safety and education assessment — Amount.
· RCW 3.62.085 Fee for conviction or plea of guilty.
· RCW 7.68.035 Penalty assessments in addition to fine or bail forfeiture.
· RCW 9.94A.550 Fines.
· RCW 9.94A Sentencing Reform Act of 1981: Restitution and Legal Financial Obligations at RCW 9.94A.750 to 9.94A.777.
· RCW 10.01.160 Costs — What constitutes — Payment by defendant — Procedure — Remission — Medical or mental health treatment or services.
· RCW 10.46.190 Liability of convicted person for costs — Jury fee.
· RCW 10.82.010 Execution for fines and costs.
· RCW 10.101.020 Determination of indigency — Provisional appointment — Promissory note.
· RCW 36.18.020 Clerk’s fees, surcharges.
· RCW 43.43.690 Crime laboratory analysis fee — Court imposition — Collection.
· RCW 43.43.7541 DNA identification system — Collection of biological samples — Fee.
· RCW 69.50.430 Additional fine for certain felony violations.
· RCW 70.48.390 Fee payable by person being booked.
