More than two dozen people crowded into a conference room at the North Carolina Judicial Center Wednesday for the first meeting of the Pretrial Working Group Subcommittee of the NC Courts Commission.
The size of the group was a testament to just how many groups and individuals are interested in reforming the state’s current cash bail system. Organizations like the ACLU and Southerners on New Ground were represented as well as the state’s office of Indigent Defense Services and legislative aides from several members of the General Assembly.
“There are a lot of people and groups all over the state involved in this issue and having these discussions,” said Special Superior Court Judge Athena Brooks, who chaired the meeting. “I dislike intensely recreating the wheel…so I would like us to talk about things we can recommend for the legislature to change.”
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 as well as the presumption of innocence.
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.
But there is a lot of disagreement on how to do that.
Some of the state’s largest counties do now have pretrial release programs, but 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.
Risk assessment tools may be better than a judge’s gut, many admit, but that’s a low bar. Many such tools use data like the number of previous arrests as part of an equation to calculate the risk a defendant will flee or commit further offenses while awaiting trial. 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.
Dawn Blagrove, an attorney and executive director of the Carolina Justice Policy Center, discussed the problem at Wednesday’s meeting.
“The problem with risk assessments is that they amplify the bias that already exists within our criminal justice system,” said Blagrove. “Until we can invent one that doesn’t amplify the bias that already exists in our system, I’m 100 percent sure it is going to create a different problem than the one we already have. It’s a solution to a problem that exists, but it will then create its own problem.”
Rather than propping up a broken system, Blagrove said, the state should seek changes that will get at what courts actually want in releasing people before trial — namely, a sense that they’re going to return to face their day in court.
In the United States, those who are arrested are presumed innocent until proven guilty. In North Carolina, the law leans toward allowing those not deemed a danger to the public or a flight risk to be released without having to post cash bail to assure they will appear to face charges.
But law enforcement officials, bail professionals and attorneys across the state say it has become common for courts and magistrates to set bail for even minor charges regardless of whether the accused is shown to be dangerous or likely to flee.
Those with the money to pay their own bail can return to their lives, families and jobs as they await their day in court. Or they can turn to the for-profit bail bond industry, which will allow them to pay a fraction (no more than 15 percent) of the total bail, which is guaranteed by the bond company. Facing a $1,000 bail, a defendant could go home for no more than $150 to a bail agent.
But many at Wednesday’s meeting said they’ve seen scores of people go to and stay in jail — sometimes for weeks or months — because they cannot afford to pay bail or engage a bail agent. That could cost them jobs, homes or even custody of their children.
Even those who find a way to pay the bond can often end up in a cycle of debt related to its cost that keeps them on the financial margins.
Thomas K. Maher, executive director of the North Carolina Office of Indigent Defense Services, said one solution is to get courts to rely on a statute that already exists, providing for probable cause hearings to establish if someone may flee before trial.
“It’s amazing the number of counties who say, ‘Oh, we don’t do probable cause hearings,’” Maher said. “It seems to me that one option is to say, ‘If you want to hold someone on bond, there needs to be a probable cause hearing.’”
The almost wholesale disregard of probable cause hearings is a problem that could at least greatly reduce the problem of mass detention before trial, Maher said. The mechanism exists, he said, but it’s not being used.
From a judge’s perspective, Brooks, added, it may help to loosen up judges’ ability to decide or waive court costs.
Over the last decade, the General Assembly has passed a series of laws tying the hands of the judiciary on those costs.
In 2011, the legislature required just cause for waiving court costs — the same determination courts regularly disregard when jailing the very people paying those costs before their trials.
That was followed by a 2012 requirement that judges file written findings in each case.
In 2014, lawmakers began requiring the tracking of cost waivers by each individual judge, which veteran judges say can make judges reluctant to waive costs, as it may be used against them politically.
Finally, last year, the General Assembly stopped judges from waiving costs altogether unless they provide “written notice and opportunity to be heard by all government entities directly affected.” That could include hundreds of state and local entities. In order to comply, the Administrative Office of the Courts has to send a monthly letter to 615 agencies that includes a link to the court calendar.
A simple way to lessen some of the financial pressure on poor people who come before the courts, according to Brooks?
“The ability of the judicial official, with their education and background, to waive court costs without having to notify God and everybody,” she said Wednesday.
The Pretrial Working Group subcommittee will meet again on Nov. 19, when it will continue to set its agenda going forward, hear from experts on the issue and examine some data related to the issue in the state.
The group will continue its work into 2019 before its recommendations are prepared for the Courts Commission and are made available to legislators. Those attending the first meeting Wednesday called its first wide-ranging discussion a good start.