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Washington Law Review

Olivia Hagel

Abstract

When criminal defendants fail to appear for a court date after they are released on a bail bond or cash bail, Washington courts will likely forfeit their bail. And when the defendant reappears—whether a day, a month, or a year later—that same court might return, or “exonerate,” the bail bond or cash bail.

But Washington does not treat cash bail and bail bonds similarly in the context of forfeiture exoneration. Commercial bail bond agents enjoy robust statutory and judicial avenues for the return of their forfeited bail bonds. A little over one-hundred years ago, the Supreme Court of Washington treated cash bail similarly to bail bonds when deciding whether to exonerate forfeited bail. Lower Washington appellate courts appear to be forgetting that precedent today. As such, cash bail depositors—the accused’s loved ones, community bail funds, or the accused themselves—have increasingly been left to the whims of trial courts while bail bond agents have gained stronger exoneration rights.

Reform to cash bail forfeiture exoneration in Washington is overdue. The well-known socioeconomic and racial inequities of bail leave their mark on failures to appear and, thus, bail forfeiture. Further, cash bail forfeiture exoneration may become more critical as Washington reckons with a “third wave” of bail reform and reformers urge a move away from commercial bail bonds and toward community bail funds.

Washington should exonerate bail bonds and cash bail similarly. This Comment urges the Washington Legislature to enact certain statutory rights to cash bail exoneration. It further encourages Washington courts to realign cash bail forfeiture exoneration practices with precedent and to recognize the right to cash bail forfeiture exoneration whenever defendants reappear within sixty days.

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