No Bond, No Body, and No Return of Service: the Failure to Honor Misdemeanor and Gross Misdemeanor Warrants in the State of Washington

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 4SPRING 2003

No Bond, No Body, and No Return of Service: The Failure to Honor Misdemeanor and Gross Misdemeanor Warrants in the State of Washington

Hon. Philip J. Van de Veer(fn*)

I. Introduction

Washington's district and municipal court judges issue arrest warrants after criminal defendants fail to appear in court or violate conditions of release or probation. This Article examines the legal issues surrounding the growing trend in Washington of law enforcement agencies refusing to arrest, detain, and transport defendants wanted on misdemeanor and gross misdemeanor warrants due, in part, to jail overcrowding. Under current law, courts of limited jurisdiction are unable to compel warrant compliance, resulting in a growing threat to public safety and the potential for substantial governmental liability. Consider the following typical example:

Defendant entered a deferred prosecution on several alcohol-related Reckless Endangerment charges in Pend Oreille County.(fn1) As judge, I issued a statewide arrest warrant after Defendant aborted alcohol treatment and then failed to appear for a probation violation hearing. Defendant was later stopped in Whatcom County near Blaine, Washington, where he blew a .164 on the officer's portable breathalyzer (twice the legal limit of .08 for consumption of alcohol).(fn2) The officer did not arrest on the Pend Oreille County warrant because of "booking restrictions" at the local jail. Defendant was merely cited for Driving While License Suspended (DWLS) and released.(fn3) Defendant remained at large and generated a second warrant out of Whatcom County after failing to appear on the new DWLS charge.(fn4)

A significant percentage of defendants released with outstanding warrants commit additional crimes. As a consequence, the State of Washington and its political subdivisions are subject to tort liability for injuries caused by these defendants as a proximate result of law enforcement's failure to arrest on the warrant. The public duty doctrine will not shield law enforcement agencies from tort liability because arrest on an outstanding warrant is mandatory, not discretionary, under Washington law. The government also loses the benefit afforded by judicial immunity because a judicial officer is not given the opportunity to set conditions of release.

In addition, the growing failure to honor outstanding misdemeanor warrants increases the cost to the criminal justice system in the form of additional criminal cases and multiple warrants. There is a growing disrespect for the criminal justice system amongst criminal defendants who are aware that they will not be arrested on misdemeanor warrants or returned to the issuing court.

Unfortunately, limited jurisdiction judges are without legal authority to compel warrant compliance because the traditional contempt remedy for willful failure to obey a court order is not available when the failure to serve a warrant is due to jail overcrowding. In addition, a limited jurisdiction judge does not have jurisdiction over misdemeanors committed in another jurisdiction. This means the local judge cannot order the arrest and return of a defendant wanted on an out-of-county warrant and cannot set terms and conditions of release.

A number of options are available to reduce the hundreds of thousands of outstanding misdemeanor and gross misdemeanor warrants, and ameliorate the harm caused by the failure to honor those warrants.(fn5) These options include (1) increasing criminal justice funding, (2) decriminalizing selected misdemeanors, (3) establishing priority prisoner release policies, (4) requiring mandatory in-custody detention until court appearance, (5) requiring sureties to return defendants to the issuing jurisdiction, (6) implementing license restoration programs, (7) bootstrapping out-of-county warrant compliance to in-county conditions of release, (8) setting cash-only bail, (9) limiting warrant duration, (10) declining to issue warrants for minor misdemeanors, (11) making use of warrant-fests, (12) implementing alternatives to incarceration, and (13) publicizing the warrant problem.

This Article will first examine how the warrant system works in Washington and how jail overcrowding and prisoner litigation has hindered the ability of law enforcement to arrest defendants wanted on misdemeanor and gross misdemeanor warrants. Second, the scope of the problem will be documented, followed by an analysis of why limited jurisdiction judges are currently unable to adequately respond to the growing problem. Finally, the harms caused by the failure to execute warrants will be detailed, followed by a survey of options available to correct the problem.

II. Jail Overcrowding Prevents the Arrest of Defendants Wanted on Misdemeanor and Gross Misdemeanor Warrants

Washington district and municipal court judges routinely issue statewide(fn6) misdemeanor and gross misdemeanor arrest warrants that are directed to all peace officers.(fn7)

A defendant arrested on an outstanding local warrant is booked into the county jail,(fn8) where the defendant may obtain release pending his or her next court appearance by posting the bail amount stated on the warrant.(fn9) The defendant can deposit cash or other securities with the court or arrange for a bail bondsman to post the bail amount and act as surety.(fn10) If the defendant is unable to post bail, he or she will remain in custody until the next court day.

The bonding company charges the defendant a nonrefundable fee of ten to fifteen percent of the bond amount.(fn11) If the defendant willfully fails to appear, the judge can forfeit the bond, and the bonding company becomes the "absolute debtor of the state for the amount of the bond."(fn12) The bonding company will, in theory, locate and return the defendant to the court so as to avoid having to pay the bond amount.(fn13)

At the first hearing after the warrant has been served, the issuing judge may set conditions of release designed to assure future court appearance.(fn14) Equally important, the judge is authorized to impose terms of release designed to protect the public from substantial danger due to violent criminal activity by the defendant.(fn15) Because setting terms and conditions of release is a judicial function, the judge is granted absolute immunity from tort liability should the defendant violate the terms of release and cause subsequent harm or injury.(fn16)

A defendant arrested on an out-of-county warrant has the same opportunity to post bail and be released pending appearance in the court that issued the warrant. However, if the defendant is unable or unwilling to post bond, he or she will remain in custody until transport is arranged and completed back to the jurisdiction where the warrant issued.(fn17)

The jurisdiction that issued the warrant is responsible for transportation expenses.(fn18) Any jail within the state may be used for the temporary confinement of a prisoner being returned to the issuing jurisdiction.(fn19)

Arrest of a wanted defendant by law enforcement is mandatory. The applicable statute states that every warrant "shall command the defendant be arrested and brought forthwith before the court issuing the warrant."(fn20) Sheriffs and deputies are required to execute all warrants.(fn21) There is no discretion whatsoever. The officer must serve the warrant and make return of service to the issuing court.(fn22) This is the way the warrant process is supposed to work in Washington.

Unfortunately, Washington's jails are overcrowded. The statewide average daily jail population was 116.4% over capacity in 2001.(fn23) The daily jail population for urban King County for the year 2001 averaged 141.9%.(fn24) In 2000, nearly half the state's county jails refused to accept misdemeanor defendants because of jail overcrowding.(fn25)

Washington's correctional facilities must meet federal and state constitutional and statutory requirements relating to the health, safety, and welfare of inmates and staff.(fn26) Jail overcrowding triggers litigation and court-imposed caps on jail populations or mandated prison standards. In the state of Washington, King,(fn27) and Pierce(fn28) Counties operate under court-imposed population caps, and litigation is pending in Jefferson County.(fn29) The fear of litigation is generally enough to prompt jail commanders to self-impose population caps.(fn30) Misdemeanor and gross misdemeanor defendants are released before felony defendants; however, jail overcrowding also results in the early release of felony prisoners.(fn31)

III. Law Enforcement Agencies Unilaterally Refuse to Arrest, Detain, Transport, and Accept the Return of Defendants Wanted on Misdemeanor and Gross Misdemeanor Warrants

Despite Washington's mandatory warrant arrest requirement, law enforcement agencies throughout the state daily choose not to arrest, incarcerate, or transport misdemeanor and gross misdemeanor defendants. Thurston County alone has failed to serve nearly 10,000 warrants because of jail overcrowding.(fn32)

There are over 235,000 active misdemeanor and gross misdemeanor warrants in the State of Washington.(fn33) Fifty-five thousand Washington defendants are wanted on two or more of the 235,000 active warrants.(fn34) A significant percentage of these multiple-warrant defendants pick up additional warrants...