Advocates hope changes in Durham are a bellwether for bail reform in NC

Advocates hope changes in Durham are a bellwether for bail reform in NC

Kayla Hartsfield (L) and Serena Sebring (R)

Serena Sebring and Kayla Hartsfield were arrested last month after chaining themselves to the gates outside the Durham County Detention Center.

The two women, activists with Southerners On New Ground (SONG), were trying to bring attention to a cash bail system they say has utterly failed. Studies show the current system disproportionately jails minorities, the poor and those accused of non-violent crimes while failing to effectively assure that defendants make their court dates in higher numbers than those who are offered alternatives to cash bail.

“We have a lot to learn from other cities and states that have just decided, ‘We’re not going to do this system of ransom that money bail has become’,” Sebring said. “They’ve replaced it with a wide variety of things like ‘cite and release’ programs and other ways of supporting people in making that first court appearance that are more effective.”

Last week Durham District Attorney Satana Deberry made it clear she agrees. Deberry announced her office has stopped seeking cash bail in most cases.

“Research shows the cash bail system disproportionately impacts lower-wealth people and people of color,” Deberry said in her announcement. “Setting high money bail doesn’t ensure that dangerous people remain in jail, it ensures poor people stay in jail. This policy removes wealth from the equation to the extent possible under North Carolina law, instead making public safety the determining factor in pretrial release recommendations.”

The new policy establishes a presumption that all those awaiting trial should be released on a written promise to appear, without monetary conditions, except those facing charges “involving physical harm or threats of physical harm to another person.” That extends to misdemeanors and low-level felonies with the exception of domestic violence cases.

District Attorney Satana Deberry

Bail reform was a major part of Deberry’s platform when she was elected last year.

“After I won the primary last May, we really set about to think about policies that would really make change,” Deberry said in an interview with Policy Watch last week. “Cash bail was definitely one of those. It was a hot topic in Durham even before the election and definitely throughout the election. We spent some time between the time I was elected and I took office talking to community advocates, talking to formerly incarcerated people, talking to defense attorneys, really understanding how cash bail was working in Durham. Then we set about to really change that – to move toward a system of incarceration for people who are dangerous to themselves and others, not randomness.”

That’s a position that’s proven controversial among prosecutors in other jurisdictions, with some chafing at policies that dictate in advance how they conduct their cases and when they pursue cash bail.

Asked if those in her office were all on board, Deberry had a simple response.

“Well, they all work for me,” she said.

“I was very intentional in the hiring that I did,” Deberry said. “Not everybody stayed in the office and a lot of the people I brought in with me were people who were already helping me think about and work on these policies. That made it easier.”

Almost all first appearances are now handled by a “jail lawyer,” Deberry said – someone who goes through the jail every morning with a judge and public defender, seeing who came in over night and makes a recommendation in almost every case.

“It helps that we have one person who is very fluent in the policy and who, if they’re not sure, runs it back through me,” Deberry said.

Since she put the new policy in place in February, she said, the population at the Durham County Detention Center has fallen 15 percent.

“I think today’s population is 359,” Deberry said. “That’s almost the lowest it’s ever been.”

Her office views the jail almost as a living organism, she said, something that needs to be tended to every day. Most of those there now have been deemed a danger to themselves or others, are accused of violent crimes, domestic violence or who have failed to appear previously, she said.

It’s an approach meant to correct problems of overcrowding and poor management that have dogged the Durham jail for years, dramatically highlighted by the death of a teenager in its custody two years ago that led to a $650,000 settlement.

Though judges in the Fourteenth Judicial District (which covers Durham County) rewrote bail and pretrial system policies earlier this year, the changes weren’t enough for activists like Sebring and SONG.

Deberry’s announced changes go further and they address problems with which she said she’s been intimately acquainted for years.

Before becoming district attorney, Deberry was head of the North Carolina Housing Coalition, a position she said showed her the far reaching effects of a poorly functioning bail policy.

“I’ve worked for years on these kinds of issues of race and poverty – all the collateral consequences,” Deberry said. “I had come to understand the consequences of cash bail through my housing work. People were losing their homes. Their leases were terminated or their families couldn’t pay the rent because they were missing work. The collateral consequences of having a criminal conviction, however small.”

Those collateral consequences are something Cherise Burdeen has been illuminating for years as CEO of the Rockville, Maryland-based Pretrial Justice Institute.

In the absence of changes to state law on bail policy, which can be difficult to come by, Burdeen said steps like those taken by Durham’s district attorney can go a long way toward addressing the problem.

Cherise Burdeen, CEO of the Pretrial Justice Institute

“It’s a great step since we know that historically there has been a high concurrence rate between what prosecutors ask for and what judges do, nationally,” Burdeen said of the changes in Durham. “But there are two things left to question: what will prosecutors ask for instead of the money bond? Many conditions of release such as electronic monitoring are very onerous or come with fees. And what will judges do in response?  Will they concur with the DA or do something else more or less onerous? So it’s a step that should lead to looking more closely at what happens next.”

Burdeen tracks progress on bail reform nationally, from the historic ending of cash bail in California (criticized as deeply flawed by reform advocates) and the more methodical reform of New Jersey to the slow but steady progress on the issue in North Carolina.

Experts say there are a number of hurdles to effectively ending cash bail in North Carolina.

The bail industry made more than $300,000 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.”

“Is legislative reform a pathway to an optimal state for pretrial justice in North Carolina?” Burdeen said. “Not as long as you have a bail coalition. Not as long as you have a lack of racial reckoning with North Carolina’s history and not as long as you have the politics you have. So what can be done in the interim?”

One partial solution has been the emergence of pretrial services programs as an alternative to cash bail, especially in the state’s largest counties.

In 2017 Mecklenburg, Buncombe and Durham counties were all part of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge, a $100 million initiative to support jurisdictions with funding and technical assistance. Its goal was to “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 was awarded a $2 million grant which it’s using to identify and deal with racial and ethnic disparities in its system, provide alerts for trial dates to reduce failure-to-appear rates and safely reduce its jail population by 13 percent.

Durham’s pretrial program was awarded $50,000, which it has used to create an Automated Notification System (ANS) to remind people of criminal court dates.

Mecklenburg’s risk assessment tool is seen as a gold standard by some reformers. Using information on in-custody defendants as variables, the tool assigns a number score to predict the chances of future criminal activity or whether individuals are likely to appear for their court date. The scores are used in recommendations for either pretrial release without bond or in setting reasonable bond requirements.

Those meeting the pretrial program’s criteria may be released into the program’s custody. They may then, depending on their risk level and circumstances, be required to undergo substance abuse screening, come to weekly office check-ins or have some other sort of supervision.

The program costs the county about $1.6 million annually. But the money it saves in preventing failure-to-appear charges and overcrowded jails has won it broad support from police, judges, prosecutors and public defenders.

In tracking from November of 2017 through February of last year, 93 percent of those using the pretrial system appeared for their court dates. Eighty-five percent of those using the system had no new charges between their initial arrest and their court date.

But some reform advocates, including Burdeen and the activists from SONG, say there are serious problems with risk assessment tools as well.

“Charlotte/Mecklenburg is an interesting case,” Sebring said. “The eyes of the state are very much on what they’re doing. They’re the first county to have moved to the risk assessment model in many cases instead of money bond decisions. And they ask people a series of questions: Do they have a stable job? Ties to the community? Have they lived in their current home for four years or more? These questions are really correlated with racial and economic inequality already. So we have concerns that we could be reinscribing the same inequality that already exists.”

There is tension and disagreement in the world of bail reform, Burdeen said, but she thinks that’s actually a sign of some progress.

“The debate we’re in currently in bail reform is a debate that has gone on in reform of every kind – health care, you name it,” Burdeen said. “Do good people spend their time working on incremental reform, working inside the system that exists or do they join with what are viewed as more radical folks to tear down the existing system and rebuild? We’ve never had to face that in bail reform before because there’s never even been a successful attempt at inside-the-system reform.”

“So what we’re experiencing right now is that we’ve barely begun to scratch the surface of inside-the-system reform. The reason some of us are still celebrating New Jersey is that it’s the first time since D.C. twenty five years ago where we have functionally eliminated money bonds – not legislatively, but functionally.”

Those functional changes can be more effective in the long-term than legislative change, Burdeen said. While neither system is perfect, Burdeen said it’s worth celebrating both Durham and Mecklenburg as points of progress and something from which other jurisdictions can learn.

“In Mecklenburg they now have for the first time an intentional detention process – an above-board process of identifying charges for which a detention is sought. That’s probably as much as you can do within the existing statute.”

Mecklenburg has had money and attention going to this problem for a decade, Burdeen said. Durham is newer to the problem and could therefore be seen as having gone further faster with its reforms.

North Carolina’s constitution already has a presumption of pretrial release without cash bail, Burdeen said. That’s something district attorneys like Deberry are now recognizing and asserting. But changing judicial culture so that prosecutors,  magistrates and judges agree with that and move toward making it a reality is what needs to be done long-term.

“Does Mecklenburg or Durham go far enough? No. But nothing goes far enough. There’s always going to be something we can do better as we work toward improving the system,” Burdeen said. “And then once we get past seeing criminal justice as a solution to all our problems, we are going to have to look at some of the underlying problems and tackle those.”

“I don’t think it’s Pollyanna to say that there is an inevitability here,” Burdeen said. “The inevitability of the elimination of money bond, of the decarceration of pretrial detention. And the reason I say that is because there is no longer just a single road in. You have litigation, legislation, grassroots activism. It’s coming at places from every angle now.”