The Bottom-Up Process of Pretrial Reform in North Carolina
Many jurisdictions in North Carolina have begun to wonder if secured bond is the best pretrial option for public safety in recent years. Source: Philadelphia Weekly
As public health concerns associated with the COVID-19 pandemic led to increased attention on jail populations and the national racial reckoning after George Floyd’s death forced communities to reconsider the current criminal justice system, pretrial reform in North Carolina has become a prominent topic of interest in our new political age.
“During the time that I have been working in the pretrial space, I have never received as many phone calls, emails, and requests for help,” said Jessica Smith, who serves as both the Director of the UNC School of Government’s Criminal Justice Innovation Lab and as the W.R. Kenan Jr. Distinguished Professor of Public Law and Government. Smith believes the influx of interest in pretrial reform is due to a combination of “COVID and the post-George Floyd” interest in criminal justice reform.
Pretrial reform is an area of criminal justice reform that encompasses the ways in which citizens engage with the justice system before a trial. Much of the focus on pretrial reform in recent years has been concerned with the bond systems in place in jurisdictions across the state.
Bond proceedings follow the same basic formula in every county in North Carolina. Following an arrest, a judicial official will utilize North Carolina’s general bond statute in addition to the local pretrial release policy in order to set a defendant’s bond. Importantly, the local pretrial release policies in specific judicial districts can vary wildly across the state. Overall though, North Carolina currently relies heavily on secured bonds, which require a defendant to put down a resource, usually cash, that is used as collateral to encourage them to appear in court. This is true even though the North Carolina general bond statute specifies a preference for unsecured bonds when possible. To decide the amount of the secured bond, judicial officials consult a bond table included in the vast majority of local pretrial release policies. The bond table suggests an amount of money corresponding to the seriousness of the offense. Defendants who cannot pay must either remain in jail or pay a fee to a bondsman to post bail for them.
The Criminal Justice Innovation Lab at the UNC School of Government (CJIL) outlines a few reasons why jurisdictions might reach out to them in order to explore pretrial reform options. First, research has brought up concerns for public safety associated with current pretrial procedures in the state. These concerns broadly stem from an under-supervision of high risk defendants and an over-supervision of low risk defendants. More specifically, there is under-supervision of a high risk defendant when a wealthy citizen has been charged with a crime and poses a danger to the community but is able to post bail and remain out of jail. Here, a secured bond does nothing to protect the community, as the potentially dangerous individual is not under supervision. On the other hand, over-supervision of low risk defendants occurs when a judicial official orders certain pretrial supervision measures such as drug testing and electronic monitoring. Some research suggests that placing restrictions on low risk defendants leads to increased pretrial failure rates, meaning that defendants are more likely to be rearrested or fail to appear in court. In this way, the over-supervision of low risk defendants is detrimental to public safety as well.
Another reason that judicial districts may enact pretrial reform is to explore ways to lower costs associated with incarceration. Nationally, there are nearly 500,000 people in America’s jails who have not been convicted of any crime, costing taxpayers around $14,000,000 a year. This amounts to over seven times what the United States spent on foreign aid during the entirety of fiscal year 2021. The extraordinary cost of pretrial detention has incentivized many jurisdictions to consider ways to keep low risk defendants out of jail and off of the taxpayer’s dime.
One final concern with the current pretrial release system in North Carolina is fairness. Even when bond amounts are set as low as $500, pretrial detention is largely contingent upon a defendant’s ability to post bail, not the risk they pose to the community. One study found that 30% of defendants from wealthier zip codes in Harris County, Texas are incarcerated pretrial while as many as 70% of defendants from less affluent zip codes are. Furthemore, the study finds that those who were incarcerated pretrial were 25% more likely to plead guilty “for no reason relevant to guilt,” meaning that many defendants solely pleaded guilty “because they were detained.” There are also fairness concerns related to race and ethnicity, as another study found that Black and Hispanic defendants are overrepresented as pretrial detainees with respect to their share of the American population.
It is clear that there are numerous concerns regarding the current system of pretrial practices in North Carolina, and reform measures have been adopted in a multitude of jurisdictions. Smith highlighted the fact that these changes have largely come from individual judicial districts as opposed to being sweeping, statewide measures.
“In North Carolina, rather than being required by the legislative process, interest in improving pretrial systems has been a bottom-up process where jurisdictions throughout the state, including rural, suburban, and urban communities have recognized that the status quo may be undermining public safety, inefficiently using taxpayer resources, and causing unfairness,” she said.
One example of a jurisdiction that has enacted pretrial reform recently is Orange County. With help from the CJIL, Orange County has seen success in its implementation of a handful of reform measures.
One of these measures is a structured decision-making tool for magistrates, who are often the first and sometimes the only judicial officials to set an individual’s conditions for pretrial release. Before implementation of the tool, the majority of defendants in Orange County received cash bonds. Afterwards, magistrates issued other pretrial conditions in over 70% of cases. Eight other North Carolina counties already use a similar tool, and the Criminal Justice Innovation Lab has noted similar levels of success across the state.
Another reform measure implemented in Orange County is a structured decision-making tool for judges to use when responding to court non-appearances. That tool is the first of its kind in North Carolina. The decision-making framework was aimed at encouraging judges to reschedule a defendant’s court date if they failed to appear for court in select cases instead of issuing an order for their arrest. A report on pretrial reform measures in Orange County reveals that so far, of the 128 target cases in which defendants previously had not missed a court date, judges rescheduled all 128 court dates.
In talking about these two reforms in Orange County, Smith said, “at their request, we helped local stakeholders understand how their local pretrial system was functioning and supported their efforts to develop and implement these tools. As to the magistrates’ tool, we have done several evaluations showing that when similar tools were implemented in other jurisdictions, communities reduced unnecessary detentions without jeopardizing public safety.”
A plethora of other counties across the state have also implemented reform measures, many of them in conjunction with the Criminal Justice Innovation Lab. In Forsyth County and the judicial district encompassing Washington, Beaufort, Martin, Tyrrell, and Hyde counties, reform efforts have led to a decrease in pretrial detentions in initial reporting. Mecklenburg County, a state leader in pretrial reform, also saw a decrease in pretrial detention without a corresponding increase in pretrial failures as a result of their new practices.
Due to factors like COVID and the nation’s racial reckoning after George Floyd’s death, many jurisdictions in North Carolina have implemented new pretrial measures based on empirical evidence in order to promote public safety and fairness while decreasing costs. While some may view the lack of statewide pretrial change in North Carolina as a failure, it is important to consider that the most successful reform measures are individually tailored to each jurisdiction. Sometimes, a legal one-size-fits-all approach is simply inadequate. Fortunately, North Carolina has organizations like the Criminal Justice Innovation Lab to put in the countless hours required to develop stakeholder-focused solutions for today’s pretrial issues.