Yesterday the Washington Supreme Court released a ruling in State of Washington v. Frederick Hardtke, that on its surface would appear to limit a court’s ability to require a defendant to wear a SCRAM device, or impose any expensive condition, as a condition of pretrial release. Unfortunately, based on the way most courts in Washington operate, this ruling is likely limited to the very specific facts of the case at hand.
In Hardtke, the lower court in Island County required as a condition of release that, among other things, the defendant wear an electric alcohol monitoring bracelet (SCRAM). Upon his conviction the court imposed court costs for his pretrial supervision, based mainly on the SCRAM device, of nearly $4,000.00. Mr. Hardtke appealed the imposition of those costs citing RCW 10.01.160 which permits a court to impose costs of pretrial supervision but limits the amount to $150.00. Some have analyzed this decision as meaning a trial court does not have the authority to order expensive conditions of pretrial release or is limited in so doing. This is not the case.
RCW 10.01.160 merely states the amount that a court itself is authorized to impose, upon conviction, for pretrial supervision services provided directly by the court. It does not address costs of pretrial conditions that are required to be borne by the defendant when provided by a private third party. In Hardtke, Island County provided the SCRAM device, not a private third party vendor. The Court even addresses that question head on, describing the relationship between a defendant and a bonding company, when bail is a pre-condition of release. “The defendant then arranges with a third party (e.g. a bail bond company) to purchase a bond. How the bond is paid for and at what fee is entirely between the defendant and the bonding company; the court is not involved.”
So if a court imposes a condition of release that the court itself provides and monitors, by statute the court can impose only up to the statutory limit of $150.00 for providing that service. The court, however, is not in any way limited in terms of the conditions it imposes, regardless of expense, if the defendant is required to contract with a private third party to gain that service. And thus the limited nature of the Hardtke ruling.
Most courts that we deal with in Washington that require SCRAM as a release condition do not provide that service. They require the defendant to seek the service from a private company, much as it would with bail bonds, ignition interlock devices, etc. Courts that already operate in this manner, at least with respect to the SCRAM condition, likely will not be impacted.
The ruling, however, could and likely does have a broader implication with respect to other conditions of release that courts do tend to provide and monitor. Often, when a defendant appears before a court with multiple prior DUI or DUI related offenses, the court will only allow a release to electric home monitoring (EHM). Should the court directly provide and monitor that condition, as opposed to a private EHM company, the statutory limitation on reimbursement for costs would apply. But there are private EHM companies as well. The end result may be that the government completely opts out of the business of pretrial supervision, moving instead toward the privatization of these services. Private companies already exist that provide not only an array of services but probationary monitoring as well. If the government is limited in terms of how it can be reimbursed, barring a statutory amendment, it will likely see privatization as the answer.