Durham judges set new policy to reduce the use of cash bail. Does it go far enough?

Durham County’s top judges set a new bail and pre-trial release policy this week that seeks to minimize the use of cash bail, which some people say criminalizes poverty.

“All of our judges have an issue with the use of cash bond,” said Senior Resident Superior Court Judge Orlando Hudson. “That is not the best way to assure a defendant’s presence (in court). The use of cash bonds doesn’t protect the public because the mere fact that you have money doesn’t mean that you are not a dangerous person.”

The new policy, created by Hudson and Chief District Court Judge Pat Evans, sets guidelines for magistrates and other judges to follow when considering whether someone charged with a crime should be held in jail or released before trial.

Durham County voters elected District Attorney Satana Deberry last year on promises of criminal justice reforms, including rethinking the use of cash bail for low-level charges, Hudson said.

Judges can use their discretion to set bail and pre-trial release conditions. Magistrates, who set release conditions after someone is arrested and before they go before a judge, will also be expected to follow the policy suggestions closely, Hudson said.

The policy replaces one created in 2011 by Hudson and then-Chief District Court Judge Marcia Morey, a Durham Democrat who now serves in the state House.

State law doesn’t allow judges to eliminate cash bonds, Hudson said, but the new Durham policy “de-emphasizes” cash bonds and highlights other options such as unsecured bonds, written promises to appear in court and electronic monitoring.

“That should be the first method of release, and if some reason a defendant doesn’t qualify, then a more secure form of bond is allowed,” Hudson said. “Cash bonds is an option, but we don’t recommend judges use cash bond, and that is clearly spelled out in our guidelines.”

In all but potential death penalty cases, state law says judicial officials shouldn’t use cash bail unless they determine the person likely wouldn’t appear in court, or would pose a danger or destroy evidence. But many judicial officials often don’t consider that criteria, frequently imposing cash bail, Hudson said.

Under the new policy, magistrates would be required to use a checklist that seeks to reduce that practice, Hudson said.

While the check list was included in the previous policy, magistrates weren’t required to use it, Hudson said.

If judicial officials can’t release the defendant on an unsecured bond, promise to appear, or electronic monitoring, the new suggested bail amounts offer a wide range and, in some cases, are lower compared to the previous policy.

The 2011 policy suggested a $750,000 bond for a B1 felony, such as second-degree murder or rape, while the 2019 policy puts forward a range from $50,000 to $1 million.

Under the 2011 policy, a Class D felony, which includes armed robbery and burglary, had a suggested amount of $250,000, while the 2019 polices suggests $10,000 to $150,000.

Under the 2011 policy, Class A misdemeanors’ suggested bond was $1,000. Now it is $0 to $500.

In a statement, Deberry commended Hudson and Evans “for pushing Durham toward a system in which detention is no longer wealth-based, a system in which we determine who is jailed and who is free based on actual danger to our community and risk of flight rather than the amount of money to which one has access.”

The District Attorney’s Office has also been working on an internal policy to guide prosecutors on pre-trial release, she wrote.

“Together, these shifts in policy will lead to taxpayer dollars saved without sacrificing community safety or individual freedoms,” the statement said. In recent months, the policy has steadily decreased the jail population, Deberry said, “while the most dangerous individuals remain confined.”

Officials have been working to identify and release people who are being kept in jail because they cannot afford bail, Hudson said.

“If we find out today, that a group of those people exist, I will guarantee you, I will talk to the district attorney, and we will upon notification of who they are talking about release those people,” Hudson said.

The new policy pushes for “an enhanced use of pre-trial release,” tools such as electronic monitoring, Hudson said, allowing almost anyone, regardless of the charge – including capital murder – to be considered.

“We highly recommend the enhanced use of that method of release for serious crimes in Durham,” by using technology to track individuals, Hudson said.

Daniel Meier, a longtime Durham defense attorney, described the policy as a good start.

“I am largely fine with it,” Meier said, but said some in the community may have an issue with the lower bail ranges for crimes such as armed robbery.

Others say the policy doesn’t go far enough.

On Friday, about 25 people from a handful of organizations pushing for the elimination of cash bail stood in front of the Durham jail to express their disappointment in the policy.

Representatives of the organizations, which includes social justice advocacy group Southerners On New Ground, pointed to the dangers in the jail and highlighted the eight deaths there since 2013. They said the new policy criminalizes mental health issues and drug use and creates another form of detainment through electronic monitoring.

They said the policy relies on risk assessment of people charged with crimes instead of a need assessment of what would help people come to court, such as transportation and childcare.

“We want an end to the ransom that holds our people in cages parading as justice,” said Serena Sebring, a regional organizer with Southerners On New Ground. Sebring said officials could issue citations instead of making arrests and remind people about their court dates with a phone call. (In 2017, Durham County set up a court reminder system in which people could sign up to receive an automated phone call, text email.)

“We want no more investment in cages or the system that lands our people there,” she said. “We need our justices to listen to the people who have spoken. We want an end to money bail, and we want it now.”

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