Is NC’s cash bail system just? Advocates, reforms in other states raise serious doubts

David Clark works in the Guilford County Public Defender’s Office, representing clients charged with high level felonies. All of them are presumed innocent until proven guilty, but that doesn’t mean they receive equal treatment.

“I compare two clients that we have in this office,” Clark said in an interview this week. “One of our clients was charged basically with being drunk at a gas station, knocking over a display case. He gets arrested and has a $500 bail. He’s in jail because he doesn’t have $500.”

“Another of our clients was charged with discharging a firearm into an occupied property, a convenience store, conspiracy to commit murder and attempted murder – basically, a drive-by. His bail was set at $5,000. He paid and was released immediately.”

Clark says this is a too-common example of something he has observed for years.

Defendants with money can pay their bail or a percentage to a bail bondsman. They get to await their day in court at home, their lives relatively undisturbed. If they’re charged with violent crimes or there’s an argument they are a danger to the public, their bail may be higher. But if they have the money or access to it that doesn’t end up mattering.

Poor defendants, even facing much less serious charges, often end up in jail because they can’t afford even a few hundred dollars for bail and because bail agents don’t stand to make enough money off of their small bails to bother with them.

There are other costs, as well. The poor defendant who ends up in the county jail will cost taxpayers $82 a night until his court date – sometimes a month or more away. That’s often more time than they would get if convicted of minor crimes. Over that month in jail they may lose their job, their home, even their children because they are unable to care for them.

“It’s hard to see how a system like that really protects the public or the rights of the defendants,” Clark said. “And it doesn’t have to be that way.”

Before becoming a public defender in 1991, Clark was a JAG officer in the United States Air Force – a circuit defense counsel representing military members in the Western United States and Hawaii. He continued that work in the Air Force reserve for 18 years.

“The military system doesn’t have bail,” Clark said. “You’re either locked up or let go.”

If that system can determine whether defendants – all of them with military training – are likely to be dangerous or a flight risk, Clark said it shouldn’t be impossible for civilian courts to come up with a system that doesn’t reward some defendants for their wealth while punishing others for being poor.

In fact, a number of states are moving toward the elimination of a cash bail system altogether. A national movement for evidence and data based systems for determining the risk of pretrial release has led to major changes in states like New Jersey, Arizona, Indiana and Maryland.

Still, state and federal data show that two-thirds of the U.S. jail population has yet to see trial. Many of those face relatively low-level charges, but are unable to afford bail set by the court as a condition of their pretrial release. Of those, a disproportionate number are ethnic and racial minorities.

Last year the Pretrial Justice Institute , a national group advocating for bail reform, issued a state-by-state report card that graded states according to their pre-trial procedures.

North Carolina’s grade: D.

Only one state, New Jersey, which essentially eliminated cash bail last year, received an “A” rating in the report. There were nine B’s, ten Cs, 12 D’s, and 17 F’s. Delaware was the only state to receive an “Incomplete” because one of the three indicators used—rate of pretrial detention—was unavailable.

The Institute found great strides are being made toward evidence-based rather than financially-based pretrial release. But it also determined that only 25 percent of Americans live in a jurisdiction that uses “a validated evidence-based pretrial assessment meant to guide discretion and reduce bias.”

Only 10.4 percent of North Carolinians live in such a district, according to the report.

That’s a problem, said Clark, the assistant public defender in Guilford County.

The North Carolina Commission on the Administration of Law and Justice has called for pretrial justice reform, saying the state should develop “an empirically derived pretrial risk assessment tool and develop an evidence-based decision matrix to help judicial officials best match pretrial conditions to empirically assessed pretrial risk.”

“Such tools hold the potential for a safer and more just North Carolina,” the commission concluded in a report on the subject.

So why has reform been so slow? Why, in many respects, does state legislation seem to be going in the opposite direction?

“What gets in the way of change?” Clark said. “I think it’s a lot of things.  I think the bail industry is relatively strong with the legislature – their lobbying arm is fairly strong. So any lessening of the their ability to provide bonds is fought tooth and nail by the industry.”

Prominent current state lawmakers are themselves bail bond professionals. Influential former state lawmakers lobby their friends in the legislature on the industry’s behalf. Those who are not directly involved in the industry were the beneficiaries of more than $350,000 in political contributions to state lawmakers between 2002 and 2016. During that period, the North Carolina Bail Agents Association took credit for helping to pass 60 laws “helping N.C. bondsmen make and save more money and protect their livelihood.”

But the political problem goes deeper.

“I think elected judges are just scared to death to let someone out who might harm someone,” Clark said. “And part of what goes on is there’s a prediction element here. I go into court and say, ‘My client has no record, he has a family, he has a home. Here’s a letter from his employer.’ But the judge says, “How do I know he’s not going to go and harm a witness?”

Without a proper, verifiable system in place for making that sort of decisions, they are made very unevenly across jurisdictions.

At least three North Carolina counties – Mecklenburg, Durham and Buncombe – have moved toward such a system.

Those counties were part of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge, a $75 million initiative to support jurisdictions with funding and technical assistance. Its goal is “safely reducing the number of arrested people who are brought to jail and increasing the use of evidence-based tools, such as pretrial assessment instruments, in pretrial decision-making.”

Mecklenburg, which has an assessment tool in place assigning a point value to defendants to determine the appropriateness of their release, was an “implementation site” in the program. Durham and Buncombe were “innovation” sites, getting short-term support to design and test new approaches.

“I really like the Charlotte-Mecklenburg model,” Clark said. “I think you can learn a lot from the way they’re doing things.”

If moving toward an evidence-based system that doesn’t disproportionately harm minorities and the poor isn’t enough incentive for change, another may be emerging: the threat of litigation and pressure from the courts.

The United States Court of Appeals for the Fifth Circuit recently found, in O’Donnell v. Harris County, that a Texas county’s system of setting bail for indigent misdemeanor defendants was unconstitutional.

In a blog post on the case this week, the UNC School of Government’s Jessica Smith examined the case and its potential impact:

In Texas—as elsewhere—secured bail requires a defendant to post a bond, either out of pocket or from a surety, often a bail bondsman, who requires a non-refundable fee. Unsecured bail allows the defendant to be released without money down up front, but imposes liability on the back end if the defendant fails to appear or comply with conditions.

In Harris County, when a misdemeanor defendant is arrested, the prosecutor asks for a secured bond amount according to a bond schedule established by local judges. Hearing Officers set bail, at a probable cause hearing to be held within 24 hours of arrest.  A judge reviews that determination at a “Next Business Day” hearing.

When making bail determinations, state law requires an individualized review of things like ability to pay, the charge, and community safety.  The bond schedule is not supposed to be mandatory and Pretrial Services sometimes offer bail recommendations.

The federal trial court found, however, individualized assessments do not actually occur. The probable cause hearing frequently is not held within 24 hours of arrest; it often last seconds; and defendants are told not to speak and are not given an opportunity to offer evidence.  Secured bail is set in about 90% of cases and often is changed only to conform to the bail schedule. Pretrial Services’ release recommendations are rejected 66% of the time, and because fewer than 10% of misdemeanor defendants are given an unsecured bond, some amount of upfront money is required for release in most cases.”

That’s a system that sounds eerily familiar to many public defenders across the state – and to those advocating for bail reform elsewhere. Some are hoping the ruling will pressure other jurisdictions to make long-overdue reforms before they end up in court themselves.

Among those groups is the ACLU of North Carolina. The group will launch a public information campaign at its annual membership meeting in May, where it will hold a panel on cash bail and its Campaign for Smart Justice.

“We’re working to end cash bail and the practice of using cash bail entirely,” said Sneha Shah, staff attorney with the ACLU of North Carolina.

Shah, who worked as a public defender in New York before joining the ACLU, said the current system of bail in North Carolina is “a mutation” of its original purpose.

“The vast majority of people in jail in North Carolina are there because they can’t afford to pay bail,” Shah said. “That flies in the face of being presumed innocent. Right now we have a two tiered system that treats people differently depending on if they’re rich or poor. If you have enough money, you can buy your freedom.”

That presents serious questions about the constitutional right to equal protection under the law, Shah said.

“This is a serious consequence of having a for-profit bail system,” Shah said. “It not only affects their liberty interest it affects their privacy and so many other rights which it shouldn’t because they’re presumed innocent.”

Just going through an evidence-based process to determine if someone is a threat to public safety would vastly reduce the number of people who are in jail simply because they can’t pay bail, Shah said. Other states have found that something as simple as a more effective and efficient system for communicating with defendants about their court dates drastically reduces the number of people who fail to appear for them.

Prevailing public ideas about defendants being de facto dangerous or a risk to flee are often based in classicism and a failure to understand the lives of poor people and how they interact with the criminal justice system, Clark said.

“There’s this idea that people who don’t appear in court are skipping town, that they’re headed to Mexico,” Clark said. “But if I’m fleeing town and hiding out, I wouldn’t be hiding out in my bedroom, which is where I’m usually found by the police, if I’m in that situation.”

“The vast, vast majority of my clients who miss a court date aren’t hiding from anything,” Clark said. “They just spent two weeks in jail, they lost their apartment, they’re living in a shelter, they don’t have any way of getting information about their court date.”

“You know,” Clark said. “They didn’t get a reminder on their Apple Watches.”

In the coming weeks and months, Policy Watch will continue its series of stories exploring the bail industry in North Carolina – its influence, impact and costs to the state and its people. We’ll talk with bail bondsmen, attorneys and law enforcement officials as well as those who have dealt with the industry at some of the most vulnerable moments in their lives.

If you would like to share your experiences with the bail bond industry with Policy Watch as these stories unfold, please contact investigative reporter Joe Killian at [email protected].