R Street Comment on WA Proposed Court Rule Change to Release of Accused
April 30, 2026
Honorable Salvador A. Mungia
Supreme Court Rules Committee
c/o Clerk of the Supreme Court
PO Box 40929
Olympia, WA 98504-0929
Submitted electronically to: supreme@courts.wa.gov
Re: Comments on Proposed Amendments to CrRLJ 3.2 and CrRLJ 2.2
R Street Institute Comment on Proposed Amendments on Release of Accused – Warrant of Arrest and Summons
My name is Lisel Petis, and I am a former prosecutor and current policy director of criminal justice and civil liberties at the R Street Institute, a nonprofit, nonpartisan public policy research organization. I am submitting this comment in partial support of the proposed rule changes submitted by the King County Department of Public Defense, the Washington State Office of Public Defense, the Washington Defender Association, and the Snohomish County Office of Public Defense to the Washington Supreme Court Rules Committee.[1] As an organization committed to limited, effective government, we believe the state’s pretrial authority should be used carefully, consistently, and only to the extent necessary to protect public safety, mitigate flight risk, and preserve the integrity of the judicial process.
The proposed changes (Recommendations 1-5) reflect important principles. People should not be detained pretrial simply because they lack financial resources, and release conditions should be tied to actual risks rather than imposed as a matter of routine. At the same time, while a pretrial system should protect against overreach in cannot become too rigid to work effectively. Courts need clear authority to respond to credible risks of violence, intimidation, evidence tampering, violations of protective orders, and willful flight from prosecution.
With these principles in mind, we urge the Committee to adopt Recommendations 1-3 with additional safeguards and considerations, Recommendation 5 as-is, and remain neutral on Recommendation 4. We believe that these procedural changes, with added safeguards, will protect liberty without weakening accountability, improve court appearance without unnecessary detention, and ensure the rules remain firm, fair, and focused.[2]
Recommendations 1 – 3
We support this provision, but propose additional safeguards and believe there may need refinement of the definition of “high likelihood of willful flight to avoid prosecution” to better support the practicalities of implementation.
The intent behind the change is sound. Missed court dates must be taken seriously, especially when repeated or intentional, but the system should not confuse poverty with willful avoidance of prosecution. Before a person has had a meaningful opportunity to appear voluntarily, courts should not impose jail or financial conditions as a condition of release unless the prosecution presents evidence of a specific, articulable flight or public safety risk.
Appearing in court is a personal responsibility, but when appearance is unrealistic, it becomes the court’s problem to solve. Therefore, such changes should be paired with tools that help ensure people continue to appear in court. Without such support, the policy could unintentionally increase failures to appear, bench warrants, and avoidable burdens on court resources—creating additional harm to defendants and additional costs to taxpayers.
Research consistently shows that many people miss court not because they are fleeing or trying to avoid prosecution, but because of these practical barriers or simply forget.[3] A large number of people miss court because of barriers like poverty, unstable housing, transportation, childcare, work schedules, behavioral health needs, or confusion about the process. The standard for release should be modified to reflect this reality, but the system should also provide solutions for these predictable reasons some people struggle to appear.
Automated court reminders are a low-cost, evidence-supported tool that is expected in this day and age.[4] Needs assessments and pretrial support services are practical interventions that can identify barriers early and connect people to help before a missed appearance becomes a warrant.[5] Homeless courts and community-based court models can also help meet people where they are, especially when unstable housing makes traditional court compliance more difficult.[6] These tools do not excuse missed court dates, but they do make compliance more likely.
It is also important to reduce practical barriers to appearing, while still ensuring a firm response for those who willfully evade court. Warrants should not be the default response for people who are afforded a presumption of innocence and many of whom remain law-abiding and appear in court without other considerations, but they must still be available when there is a high likelihood of willful flight.[7] Requiring a summons in lower-risk cases gives people the chance to comply without the life disruption and expense of arrest, booking, and detention.[8] This recommendation appropriately preserves warrant authority for the cases where it is most justified: credible flight risk, violence risk, witness or victim intimidation, evidence tampering, or violations of protective conditions. That is a more targeted and efficient use of court authority and justice system resources.
The Committee should also reflect on whether “willful flight” needs a clearer definition to ensure the standard can be implemented effectively in practice. Requiring the prosecution to prove a high likelihood of willful flight may result in a threshold that is hard to meet, particularly when courts must make timely pretrial decisions based on credible risk indicators. The Committee could instead identify specific factors courts may consider, such as a pattern of failures to appear, a recent failure to appear without self-reporting within a defined period of time, failure to maintain contact with current court-mandated supervision, specific statements made to the court, pretrial services, or law enforcement indicating an unwillingness to comply or flee, or other clear indicators of willful evasion identified by the court.
Recommendation 4
We remain neutral on this recommendation.
Recommendation 5
We strongly support this provision. Research has repeatedly shown that financial conditions do little to incentivize individuals to appear in court or remain law-abiding.[9] But even if such an incentive were possible, it could only exist when a defendant has a meaningful financial stake to recover. When a defendant pays a nonrefundable 10 percent fee to a commercial bondsman, that incentive disappears.[10] The money is gone regardless of whether the person appears in court. By contrast, a refundable cash deposit paid directly to the court at least preserves the possibility of an incentive.
We respectfully request that the Committee adopt these proposed rules in part and look to support additional approaches and tools to ensure the attendance of individuals in court.
Lisel Petis
Policy Director
Criminal Justice and Civil Liberties
R Street Institute
lpetis@rstreet.org
[1] Proposed Rule Change: “CrR CrRLJ 3.2/CrR CrRLJ 2.2 – Release of Accused – Warrant of Arrest and Summons.” https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=6265.
[2] State v. Smith, 527 P.2d 674 (Wash. 1974). (“Since the inherent power to fix bail is grounded in the power to hold a defendant, and thus relates to the manner of ensuring that the alleged offense will be heard by the court, we believe it to be implicit that the right to bail is essentially procedural in nature. Therefore, we hold that CrR 3.2(h) was validly promulgated by the Supreme Court pursuant to its inherent rule-making authority to prescribe rules of procedure.”)
[3] “What Really Prevents Court Appearance?” Criminal Justice Institute, February 2025. https://www.cjinstitute.org/assets/sites/2/2025/02/What-Really-Prevents-Court-Appearance.pdf.
[4] Lisel Petis, “Why Every Jurisdiction Should Have Automated Court Reminders,” R Street Institute, Oct. 14, 2025. https://www.rstreet.org/commentary/why-every-jurisdiction-should-have-automated-court-reminders.
[5] Lisel Petis, “Tools for Safe and Smart Bail System Changes,” R Street Institute, June 7, 2023. https://www.rstreet.org/commentary/tools-for-safe-and-smart-bail-system-changes.
[6] Lisel Petis, “Breaking the Cycle: Effectively Addressing Homelessness and Safety,” R Street Institute, Oct. 24, 2024. https://www.rstreet.org/research/breaking-the-cycle-effectively-addressing-homelessness-and-safety.
[7] Thomas Cohen and Brian Reaves, “Pretrial Release of Felony Defendants in State Courts,” Bureau of Justice Statistics, November 2007. https://bjs.ojp.gov/content/pub/pdf/prfdsc.pdf; “Pretrial Research Summary,” Advancing Pretrial Policy & Research, September 2025. https://www.advancingpretrial.org/wp-content/uploads/2025/09/Pretrial-Monitoring-Research-Summary-2025April.pdf.
[8] Leon Digard and Elizabeth Swavola, “Justice Denied: The Harmful and Lasting Effects of Pretrial Detention,” Vera Institute of Justice, April 2019. https://vera-institute.files.svdcdn.com/production/downloads/publications/Justice-Denied-Evidence-Brief.pdf.
[9] Aurélie Ouss and Megan Stevenson, “Does Cash Bail Deter Misconduct?” American Economic Journal: Applied Economics, 15(3), 150–182 (2023). https://www.aeaweb.org/articles?id=10.1257%2Fapp.20210349.
[10] Wendy Sawyer, “All profit, no risk: How the bail industry exploits the legal system,” Prison Policy Initiative, October 2022. https://www.prisonpolicy.org/reports/bail.html.