Chat with us, powered by LiveChat

Understanding Washington Bail Rights After Arrest

In Washington State, the right to bail is protected under Article I, Section 20 of the state constitution. However, many people misunderstand when that right actually applies. The Washington Supreme Court clarified this issue in Westerman v. Cary, a landmark case that continues to shape pretrial detention practices today. 

This case addressed whether individuals arrested for domestic violence offenses could be held without bail until their first court appearance—and whether that practice violated constitutional rights.

Key Holding in Westerman v. Cary

When Do Washington Bail Rights After Arrest Attach?

The central issue in Westerman v. Cary was whether the constitutional right to bail begins immediately upon arrest or later in the criminal process.

The Washington Supreme Court held:

  • The right to bail does not attach immediately upon arrest
  • Instead, it attaches at the time of a judicial determination, typically at the first court appearance (preliminary appearance)
  • This appearance must occur within 48 hours of arrest (excluding weekends/holidays in some circumstances)

This means law enforcement may temporarily detain an individual without bail, so long as a prompt judicial review follows.

Why the Court Allowed Temporary Detention Without Bail

Judicial Determination Is Essential

The Court emphasized that bail has historically been a judicial function, not an administrative one. Before bail is set:

  • A judge must evaluate the individual circumstances
  • Probable cause must be confirmed
  • Conditions of release must be considered

The Court rejected the argument that bail must be immediately available through preset schedules, noting that individualized review better protects both defendants and public safety.

Constitutional Challenges Addressed

1. Right to Bail (Washington Constitution)

The Court ruled that holding someone briefly without bail does not violate Article I, Section 20, as long as a prompt hearing occurs.

2. Due Process

Temporary detention is constitutional if:

  • It serves a legitimate government interest (e.g., safety, court appearance)
  • It is limited in duration
  • It includes timely judicial oversight

3. Equal Protection

The Court upheld different treatment for domestic violence arrestees, finding:

  • The classification was reasonable
  • It addressed legitimate public safety concerns
  • It applied equally within the defined group

Practical Impact on Washington Criminal Cases

What This Means for Defendants

If you are arrested in Washington:

  • You may not be released immediately on bail
  • You are entitled to a prompt court appearance (usually within 48 hours)
  • A judge—not jail staff—will decide:
    • Bail amount (if any)
    • Conditions of release
    • Whether release is appropriate

What This Means for Courts and Law Enforcement

Courts can:

  • Require mandatory first appearances before bail is set
  • Avoid reliance on automatic bail schedules
  • Prioritize individualized determinations

Why Westerman v. Cary Still Matters

This case remains highly relevant because it balances:

  • Individual liberty rights
  • Judicial oversight
  • Public safety concerns

It also confirms that Washington provides stronger bail protections than federal law, while still allowing limited pre-hearing detention.

Call to Action

If you or a loved one is facing criminal charges and have questions about bail or pretrial detention, experienced legal guidance is critical.

Contact Blanford Law today at ken@blanfordlaw.com or 253-720-9304 for guidance on your legal matter.

Additional Resources