Judge Brandon Johnson of the Walla Walla County Superior Court told Whatcom County's Incarceration Prevention and Reduction Task Force on Dec. 15 that Washington law starts from a presumption of innocence and that bail "is the last resort." Johnson, invited to brief the group, summarized state constitutional protections and the way Criminal Rule 3.2 directs pretrial decisions.

Johnson said pretrial release decisions are "pretrial" and "pre-adjudication," and that probable cause is a lower standard than the proof required for conviction. He listed the hardships of pretrial detention, including reduced access to counsel, difficulty assisting in investigations, loss of employment and housing, and stigma for people not yet convicted.

Explaining the Rule 3.2 framework, Johnson said courts must first consider noncustodial conditions to secure appearance: a defendant's history of responding to court orders, employment and family ties, length of residence, criminal history and community vouching. He described two statutory categories for conditions the court may impose: assurances of future appearance and reductions in the risk of committing a new violent crime or interfering with administration of justice.

Johnson walked the task force through typical nonfinancial conditions the court may use: placing a defendant in the custody of a designated person or organization, travel or association restrictions, prohibitions on weapons or intoxicants when supported by probable cause, reporting requirements, and supervision by court services. He noted electronic monitoring should be used only where available and that, "the empirical evidence would suggest placing a person on an ankle monitor does not have an appreciable impact on them coming back to court." Johnson emphasized that such resources are limited.

On financial considerations, Johnson said the court must consider an accused's ability to pay when setting bail and described the common local practice of a 10% posting: "If I set bail for Bob for $100,000, if Bob has $100,000, he can post that in cash. If Bob doesn't have $100,000, then he has to contact a bail bond company," which charges a nonrefundable fee.

Johnson also reviewed procedural timing in criminal practice, noting the rule allows a first-appearance delay of up to 24 hours for safety or mental-health evaluation and permits amendment or revocation of release orders on changed circumstances. He described the very limited constitutional circumstances in which bail may be denied entirely, citing Article I, section 20's two-part test for denial of bail in the state constitution.

Task-force members asked about the information available at rapid first appearances. Johnson said judges routinely review state-history records and financial declarations and that local pilot programs rely on a one-page pretrial assessment prepared by court services that reports percentages for failure-to-appear and community-safety risk. He encouraged operational reforms such as moving the first-appearance calendar later in the day so appointed counsel can meet defendants in advance and using reminders (text messages) to reduce missed appearances.

Johnson closed by urging attention to empirical measures of "what is a successful pretrial release" and answering members' questions about balancing community safety against setting people up for technical violations.

The presentation was followed by a task-force discussion about pretrial services, technology for reminders and local pilot programs; the judge left to start a jury trial at the end of his remarks.