With the candidate filing deadline coming up next Friday, it’s time to check back in on the race to be King County’s next top prosecutor. When we last surveyed the landscape, no one had emerged to take Stephan Thomas’s lane as an unapologetic progressive candidate for the job. As of today, that lane still remains wide open, a fact that becomes particularly apparent when you consider the conservative positions that the current candidates hold when it comes to ending cash bail.
For those fortunate enough to lack familiarity with the term “cash bail,” first off, congratulations on avoiding entanglement with the criminal legal system. Cash bail is the classist practice of requiring someone accused but not convicted of a crime to pay the court money in exchange for release from jail prior to a trial. If that sounds a lot like the state putting a price tag on your personal liberty and constitutional rights, then you’ve grasped the concept perfectly.
The Northwest Community Bail Fund provides a trove of research demonstrating that the policy disproportionately impacts poor and marginalized communities, but it shouldn’t take a mountain of white papers to understand that courts shouldn't lock people in jail simply for being poor. And yet, that’s exactly what our criminal legal system does on a daily basis.
Currently, King County basically operates the way most jurisdictions across the country do: Once judges decide to issue a warrant for someone’s arrest, prosecutors ask the court to set bail at a price meant to reflect an assessment of the accused person's risk of flight and the likelihood that they’ll commit violence if released.
Then, once the accused person is in custody, they can spend up to two weeks in jail awaiting their arraignment — unless they can pay bail. At that arraignment, which is just a fancy lawyer term for the initial hearing where prosecutors formally present the accused with the charges they’re facing, prosecutors again have the opportunity to ask for bail.
Judges can approve or overrule the prosecutor’s bail recommendation at each stage of this process. According to one criminal defense attorney I spoke with, however, judges rarely overrule a prosecutor’s recommendation in favor of lowering the amount or not setting bail at all at the warrant stage. Judges have more facts available to them at an arraignment, and so they more often exercise discretion at that stage, though it's still not terribly common.
Washington Supreme Court rules say that judges should default to releasing people without forcing them to post bail in any amount. In practice, however, judges retain significant discretion to set bail amounts that remain unaffordable to low-income defendants. That’s a huge problem, because spending two weeks locked up between arrest and arraignment can lead to lost jobs or apartments, all while the accused is supposed to be presumed innocent.
When asked last month whether she supported ending cash bail as a blanket rule, Leesa Manion, the longtime chief of staff for current King County Prosecuting Attorney Dan Satterberg, clearly expressed her opposition to such a reform, though she presented an interesting and plausible explanation for wanting to avoid “abolishing our existing system out of reflex.” Manion said ending cash bail would leave the current crop of judges in King County with only two choices: Hold anyone deemed remotely dangerous or likely to skip town, or let everyone out. She feared they would resort to the more draconian measure of widespread pretrial detention.
That seems like quite a leap of logic to make, but deep-seated opposition from the judiciary was a major stumbling block to similar progressive reforms pushed by Philadelphia’s progressive prosecutor Larry Krasner. In fact, they were such a problem that pro-reform advocates led primary campaigns that successfully replaced eight of the nine judges in the city’s Court of Common Pleas. So, while Manion’s hypothetical concerns have some basis in reality, she didn’t seem keen to engage in the kind of grassroots organizing that would be needed to replicate Philly’s success in Seattle.
When we spoke last month, Jim Ferrell, a prosecutor and Mayor of Federal Way, delivered a far less nuanced position on the issue. He insisted that in the “thousands” of cases where he personally asked for bail as a prosecutor, he believed that the existing safeguards of judicial discretion were enough to make sure people weren't “punished because of where they are in life” — despite widely available research showing that is exactly what’s happening. He added that he was "open to further discussion” of the issue, but that line tends to serve as a cliche politicians resort to when they want to say, "No, please go away" while still appearing polite.
So, if progressives are in search of someone willing to make the full-throated case that constitutional rights and personal liberty shouldn’t be a privilege reserved for the wealthy, they’ll need to convince someone else to get in this race before the end of next week.