National pretrial expert: Reform is coming to the broken cash bail system

National pretrial expert: Reform is coming to the broken cash bail system

Cherise Fanno Burdeen

When Cherise Fanno Burdeen talks about the U.S. justice system, she’s speaking from more than 20 years of experience.

After getting her Master’s degree in Criminal Justice at Indiana University, she worked with the Department of Justice’s National Institute of Justice, did post-9/11 work with the Department of Homeland Security and field work with the Safer Foundation in Chicago.

But since 2006, Burdeen has been working on the disparate pieces of what she considers one overarching issue: the broken system that denies those arrested a true presumption of innocence and equal justice under the law.

As CEO of the national Pretrial Justice Institute, Burdeen says she’s struggling with many facets of the problem – and most are on display in North Carolina:

Despite all this, Burdeen said in an interview this week, improvements appear to be happening nationwide and there is a growing understanding of the problem and momentum for change.

“Almost every state in the union has something happening,” Burdeen said. “It’s a really monumental time to be doing this work.”

This month the Institute issued “Where Pretrial Improvements are Happening,” a report on progress emanating from the judiciary, legislative branches, the grassroots level, as well as from litigation.

The changes coming from courts themselves are particularly gratifying, Burdeen said.

“For the first time in the history of bail reform, we have a very prominent role being played by judiciaries across the country,” Burdeen said. “That’s everything from individual, municipal court level judges to chief justices in the states and everything in between. They are using their convening power; they are using their ability to convene and run task forces and issue reports and study things. They’re using their power to create court rule changes within existing statutory frameworks. Because for the most part, statutes in the states provide most of the release options we need in the states. It’s just court culture has never exercised those.”

North Carolina has seen just that sort of shift in thinking, though it hasn’t yet filtered down to every individual jurisdiction.

In a 2016 report, the North Carolina Commission on the Administration of Law and Justice called for pretrial justice reform – reform that would move the state away from a de facto system of requiring all criminal defendants to post cash bail in order be released from jail prior to their day in court.

The reform recommendation came in response to concerns that the cash bail system was badly flawed. Judicial experts at nearly every level have voiced their concern than profit and politics have compromised the original intent of state statutes dealing with bail and the presumption of innocence.

The report concluded that the state should replace the existing cash bail system with “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.”

But while those reforms are slowly happening in counties like Mecklenburg, Durham, Wake and Guilford, most of North Carolina’s 100 counties are failing to make such progress.

Meaningful and lasting reform may have to come from higher courts and changes to state law, Burdeen said.

“My organization is 41 years old,” she said. “For the first 35 years we went county by county. It’s like painting the Golden Gate Bridge — by the time you get to the end, you’ve got to start over.”

“The difficulty of change at the county level – even in a place like Mecklenburg, which wants the change – is that they’re still only able to get as far as the state statutes would allow them to go,” Burdeen said.

“What’s happened over the last 25 years is that most states have modified their statutes,” she said. “Legislatures have said, ‘Okay, everybody gets bail except for capital offenses and treason.’ And then they say ‘Okay, but let’s just add…’ and they add things over the years. Gun charges. Committing a new offense while on probation. There are so many things now that are these additions within statutes.”

Often those statututes will explicitly require a money bond amount, Burdeen said. Or they will only allow pre-trial supervision if it includes a money bond as well.

“The bondsmen have been really good at not only pushing legislation that avoid reform but getting it so that essentially they have a monopoly on everyone who gets arrested,” Burdeen said.

The for-profit bail bond industry has long enjoyed solid connections to the North Carolina legislature. Rep. Justin Burr (R-Stanly), for instance, is one of the most powerful members of the House and a bond agent in private life. Former state Sen. Tom Apodaca, also worked in the bail bond industry during his tenure as chairman of the powerful Senate Rules Committee before resigning in 2017 to represent numerous important clients as a lobbyist.

North Carolina lawmakers were also the beneficiaries of more than $350,000 in political contributions from the industry 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.”

“In the early days, I spent most of my time helping places fight bad legislation put up by the American Legislative Exchange Council,” Burdeen said. “They were sponsored by the bondsmen who had a choke-hold on the public safety committee within ALEC. These were model bills that expanded the use of financial conditions, almost eradicated liability for anyone who wrote a bond with the expansion of grace periods for bond forfeitures or really lax licensure or registration requirements, almost no reporting requirements in the insurance industry.”

These days, Burdeen said, her organization is spending more time trying to craft legislative fixes – even if strong reforms have been slow to see passage.

“We worry now about bail reform bills that are like tepid tea – that will cause almost no change but will leave people feeling like they did something,” Burdeen said. “We’ve been monitoring bills in states – from probably 25 or 30 states this session – that are what they probably consider to be really progressive bills. But they need more research and they need to be based on what we know actually works.”

Even when bills don’t pass quickly, Burdeen said, the crafting and discussion of them is changing minds.

“In many places it’s been an incredibly positive process of raising the consciousness of people – state legislators – who had never heard of this issue before,” Burdeen said. “They didn’t even know there were state statutes governing local bail and they’re starting to see for the first time that addressing the issue of pretrial detention is one of the key factors in addressing mass incarceration and racial disparities in who is jailed and for how long.”

Although Burdeen’s group isn’t directly involved in litigation, she said some major wins in the courts are also changing the conversation around money bail and pretrial services.

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.

“Harris County has now spent seven million taxpayer dollars to defend themselves against this lawsuit,” Burdeen said. “This is a county that said they couldn’t afford to expand pretrial but somehow found seven million in taxpayer dollars to fight the change.”

Jurisdictions around the country see the similarity between the way their systems function and the case in Harris County, Burdeen said. If they’re smart, she said, they won’t go millions of dollars into debt to fight a change that is working for so many other states and jurisdictions.

“I don’t want to see these places spend that kind of money,” Burdeen said. “What I want to see is them to be terrified of litigation and for them to come to us for help so we can take them through a process that is inclusive and not just reactive to litigation.”

Another huge win that hasn’t gotten enough attention, Burdeen said, was a Department of Justice agreement that mandated pretrial justice improvements in Jefferson County, Alabama as part of a federal complaint that the county’s system violated the Civil Rights Act.

“Under this administration, they’re hoping to settle these without a lot of fanfare,” Burdeen said. “Because they’re really running cross-wise with having to follow the law and [Attorney General Jeff] Sessions’ personal beliefs on these issues and his connections to people in the bail industry.”

“I refuse not to make fanfare over this,” Burdeen said. “These are changes we need and it’s important when progress is made.”

To read the Pretrial Justice Institute’s most recent state-by-state report card on progress in pre-trial procedures, go here.

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 bond agents, 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 joe@ncpolicywatch.com.