When the North Carolina Courts Commission meets Friday, it will begin to take a look at an issue making national headlines: bail reform.
Last month, California became the first state in the country to officially end cash bail. Republicans and Democrats in the state came together to end a system the Chief Justice of the California called “outdated, unsafe and unfair.” Though disagreements continue over how the state plans to accomplish it, the move is a spotlight moment for an ongoing, nationwide movement to end cash bail.
In North Carolina, a wide variety of interests — from judges and public defenders to reform groups and bail agents themselves — agree the current system and the for-profit bail industry it feeds are badly flawed.
Over the last year, Policy Watch has detailed numerous examples of individual and systemic corruption within the bail system, the system’s frequently unjust impact on the poor and the concerns of veteran jurists that profit and politics have compromised the original intent of state statutes dealing with bail and the presumption of innocence.
Sarah Gillooly is Director of Political Strategy and Advocacy for the American Civil Liberties Union of North Carolina, one of the groups campaigning to end cash bail.
Gillooly told Policy Watch the current system punishes people for being too poor to post cash bail or hire bail agents to bail them out. It also makes no attempt to help people in challenging circumstances make their court dates, she said. Rather, it hits them with further charges should they fail to appear. The result: one system of justice for those who have money and another, harsher one for those without.
Friday’s Courts Commission meeting could be the beginning of a change, Gillooly said.
“This is a perfect opportunity for us to begin that conversation among the judicial branch and the NC General Assembly,” Gillooly said. “To get them to understand the changes that we need to no longer have a two-tiered system in our state.”
In a 2016 report, the North Carolina Commission on the Administration of Law and Justice called for pretrial justice 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 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.”
Two years later, however, North Carolina is not appreciably closer to that sort of statewide reform. But the issue landing on the agenda of Friday’s meeting is an indication the desire for change remains.
“[It] resulted from my solicitation of members for topics of interest that the Commission might wish to consider,” said Rep. Joe John (D-Wake), the new chair of the commission. “Probably not surprising in light of some recent focus on the issue.”
The commission will hear from experts from the UNC School of Government on the issue and point/counter point presentations from Wake County Pretrial Services Director Chuck Johnson and Mark Black, lobbyist for the N.C. Bail Agents Association.
“Among the three presentations, complemented by questions from Commission members, the Commission should have a sound, broad basis for determining what further action, if any, it wishes to take regarding this subject matter,” said John.
If the commission wants to move toward some sort of proposed legislation, it will likely set up a smaller committee to further research the issue and legislative options.
Gillooly said she hopes that however lawmakers decide to proceed, they listen not just to academics and advocates but people who have been through the justice system themselves and can speak to what it’s really like.
“We do profoundly believe that the people closest to the problem are the closest to the solution,” Gillooly said.
The real world impact of incarceration before trial can be devastating, Gillooly said — especially for those who stand to lose jobs or are unable to care for their children.
“Ultimately, the vast majority of people should be going home while they await trial,” Gillooly said. “People should be assessing what do people need to get back to court and what do they need while awaiting trial? Not just a risk assessment but a needs assessment. That’s the kind of thing we’re looking for.”
Some of the state’s largest counties do now have pretrial release programs, but Gillooly said reform advocates haven’t yet seen enough hard data out of the programs in counties like Mecklenburg and Orange to know how effective they are at dealing with the problem.
A primary concern: calculations made to assess someone’s risk that sometimes use data like number of previous arrests as part of the equation. Minorities living in over-policed areas may have more interactions with the justice system but not actually represent a flight risk or risk to the public before trial.
“This idea that big data is neutral is increasingly coming into question,” Gillooly said
The generally poor state of data from jails across the state as to how many people are jailed pre-trial and under what conditions makes it difficult for people to even properly understand the problem, Gillooly said.
Pretrial service programs across the state are also not uniform in the way they deal with peoples’ needs once they’re home to be sure they make it to their court dates.
“Do they need a text message? Do they need transportation?” Gillooly said. “Child care options, time off from employment? What do they need to be in the community? Do they need mental health care, housing intervention?”
Ultimately, there are a lot of questions to be addressed.
“There are a lot of things that could come out of this conversation, Gillooly said.”It’s great that the Courts Commission is going to begin looking at this.”