Durham County DA tells prosecutors to seek cash bonds only in ‘rare circumstances’

More people charged with property crimes and low-level drug offenses in Durham are getting out of jail without having to put up any money, under a new District Attorney’s Office policy.

The internal pre-trial release policy favors releasing people from jail on a written promise to appear on most misdemeanor and lesser felony charges except for those that involve domestic violence or physical harm to another person, District Attorney Satana Deberry said in an interview. The policy, which took effect in February, was formally announced Tuesday.

“If the court insists on setting a bond, we ask the court to have a hearing on whether or not that person can afford that or not,” Deberry said.

Durham County voters elected Deberry last year on promises of criminal justice reforms, including rethinking cash bail for low-level charges.

Ultimately, a judge determines the conditions of pre-trial release, including whether to set a bail and require electronic monitoring.

In March, Senior Resident Superior Court Judge Orlando Hudson and Chief District Court Judge Pat Evans released a new policy that Hudson said “de-emphasizes” cash bonds in favor of unsecured bonds, written promises to appear in court and electronic monitoring, The News & Observer reported.

The judges’ policy set pre-trial release conditions for magistrates, who set initial bail amounts after someone is arrested. They also serve as a general guideline for judges, who can use their own discretion in setting bail amounts.

Deberry’s policy is different as it instructs prosecutors, who historically have argued for higher bail amounts. It also asks judges who require cash bail to hold hearings on why and whether the person can afford the amount.

The policy notes state law already says judges should consider whether a person will return to court, potential destruction of evidence, danger to the community and witnesses.

“Despite statutory limitations on the use of secured bonds, the practice in this county has been to impose secured bonds in many cases pursuant to a bond schedule which fails to consider the unique circumstances of the individual and the individual’s ability to pay the secured bond,” the policy states. “Although this practice may be what many in the criminal justice system have become accustomed to, it unjustly and disparately treats defendants with limited financial means.”

For higher-level felonies, a prosecutor may consent to the release of a defendant upon a written promise to appear or options such as electronic monitoring and house arrest.

Those options should only be requested “if there is evidentiary showing and written finding that less restrictive conditions of release will fail to protect the community from the risk of physical harm to persons or prevent tampering with witnesses or destruction of evidence,” the policy states.

When judges order electronic monitoring or a secured bond, prosecutors should request that the reasoning be put in writing, the policy states.

“Rare cases will exist,” in which “the threat to the community is such that a de facto order of detention will be necessary,” the policy states.

Under the policy, a prosecutor should only request an “unattainable” secured bond when

The defendant is charged with a crime involving the use or threatened use of force

“A substantial probability exists that the defendant committed the crime”

Evidence demonstrates that the defendant’s release creates a risk of injury, destruction of evidence or the intimidation of witnesses.

“Because setting an unattainable bond” equals a detention order, the prosecutor should request that a judge make written findings on why the secured bond is necessary, the policy states.

The policy also states that prosecutors shouldn’t seek orders for arrest if someone charged with a misdemeanor or lower-level felony misses a court date for the first time.

When a prosecutor requests or consents to a bond, the policy recommends that a pre-trial assessment be sought, and the defendant be given an opportunity to participate in court-date notification system.

Prosecutors should encourage judges to recommend the use of transportation, child care and mental-health services “demonstrated to improve rates of court appearance,” the policy states.

The DA’s policy marks another step court officials are taking in Durham to reduce the number of people in jail before they have been convicted of a crime.

According to information provided by the District Attorney’s Office and the Sheriff’s Office, the jail population is already down, possibly to a record low.

Between 2007 and 2018, the average annual jail population fell from 629 to 498. In March the average monthly jail population fell to 393 and then 366 in April, according to information provided by Deberry. Those months mark the first time the population has been below 400 since at least 2004.

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