Bail-reform advocates dispute fairness of cash bail for low-level offenders
On a chilly Saturday in January, Raleigh police arrested a 45-year-old homeless man on Old Wake Forest Road, charging him with begging from the intersection as he held a sign that read “Anything Helps, God Bless You.”
Herman Smith later that day faced a magistrate, who set his bail at $500. Smith couldn’t pay. So he sat behind bars in the Wake County jail until Monday, when he spoke to a District Court judge.
In a striped uniform, Smith appeared through a video feed from the jail, about half his face showing on the courtroom monitor. “I have a job, sir,” he told the judge. “Is there any way I can waive my right to counsel and plead guilty today?”
He could not. Smith spent three more days in jail before pleading guilty and walking out with a fresh misdemeanor on his record.
By N.C. Attorney General Josh Stein’s estimate, jailing Smith for five days before his trial cost taxpayers $350. Nationally, keeping defendants behind bars in advance of their judgment costs taxpayers $14 billion, and Stein cites studies showing $3 billion of that is spent on low-level, nonviolent offenders such as Smith.
Momentum is building across North Carolina and nationwide to scale back or even end the use of cash bail, which grants pretrial freedom based on the ability to pay. Under the type of bail reform Stein and other judicial officials now advocate, misdemeanor offenders on Smith’s level might get a summons to appear in court or supervised release before trial, sparing taxpayers the expense of housing them.
In Wake County, it costs $70 per day to house an inmate in jail, compared to $2.20 per day to supervise someone through a pretrial release program — a savings of $67.80, according to statistics Stein’s office compiled. In Durham County, where District Attorney Satana Deberry has made bail reform a priority, the savings run more than $90 a person.
To scale back cash bail, many advocates say, would not only save North Carolina the cost of an expanding jail population but emphasize that anyone charged with a crime is considered innocent until proven guilty. “Liberty is the norm,” wrote U.S. Supreme Court Justice William Rehnquist in 1987, “and detention prior to trial ... is the carefully limited exception.”
|County||Cost per day to jail one defendant before trial||Cost per day for supervised release before trial||Savings|
|Orange||$110||$1.56 or $5.50 with GPS||~$100|
Source: N.C. Attorney General
The law in North Carolina says judges and magistrates must confine people before their trials only if they pose a danger, threaten to flee or might destroy evidence. Yet statewide, 67 percent of people arrested for misdemeanors in 2017 got a secured bond from a judge or magistrate — meaning they had to pay, put up collateral or hire a bail bondsman to go free before their trials.
Judicial officials in Wake County held 10,894 offenders on secured bonds for misdemeanors in 2017 — 85 percent of the people they faced. Even assuming they spent only one night in jail, those low-level offenders cost taxpayers $762,580 to house.
In January, Stein held a roundtable discussion at Wake Tech Community College in Raleigh, drawing roughly 100 judges, magistrates and district attorneys statewide. There, Stein questioned why cash bail has become the norm in a state with the opposite goal on its law books.
“Are we detaining people because of the risk they pose, or because of the size of their bank account?” he asked.
Sitting in jail
Many people facing high-dollar bail amounts stand accused of violent felonies. Many others, such as Smith, have long criminal records, though in Smith’s case the charges almost always involve panhandling.
Other defendants bring a history of skipping out on court, a group that also includes Smith. But as a homeless man, he lacks both an address for court reminders and transportation to the courtroom — an on-the-edge lifestyle that advocates say keeps many from their court dates.
But plenty stay in jail before their trials on relatively minor charges: trespassing, shoving matches, having small amounts of marijuana or panhandling.
In Durham, Andrea “Muffin” Hudson served months of jail time in 2013 before pleading guilty, even though she believed herself innocent of her charges of exploiting an elderly person. As a mother, the prospect of waiting behind bars was the worst option.
“I know what it feels like to sit on that bed and say, ‘If I only had $1,000, I could be home right now,” said Hudson, now an advocate for bail reform with several Durham nonprofits, including Participatory Defense. “The longer you sit there, the more likely you are to return because you’ve lost so much sitting there.”
At the conference, Stein referenced a Kentucky study that showed low-risk people jailed for two to three days before trial were 40 percent more likely to commit new crimes than those held less than a day. Those jailed eight to 14 days were 51 percent more likely.
No middle ground?
Massive bail reform is already happening elsewhere across the country.
California and New Jersey have moved to completely end their cash bail systems, and at least 10 states nationwide are changing how they handle the accused, according to the Pretrial Justice Institute in Washington, D.C.
This has drawn cries from the bail bonding industry and some civil rights groups that maintain without bail, the only options are in or out — a legal landscape that grants enormous power to judges and leaves no middle ground.
The trade association American Bail Coalition urged North Carolina not to take a sledgehammer to the existing system.
“The right to bail, monetary bail in particular, is a precious right and should not be denied to any persons on any level of the spectrum that are able to post bail and be released, whether that posting is $1 or $1 million,” wrote Jeff Clayton, executive director, in an email.
In Wake County, Chief District Court Judge Robert Rader said each decision pits a defendant’s liberty against the public’s safety, requiring that judges weigh the value of placing people behind bars when innocence is assumed versus making sure they don’t run off and hurt someone.
“It’s one of the hardest things a judge can do,” he said. “You don’t have a crystal ball.”
How the system works
When Smith was arrested, police took him first to a magistrate — an independent, appointed judicial official. Magistrates are a defendant’s first brush with the court system, and they have the power to keep defendants behind bars or send them home on a promise to come back. They work off a table of bond amounts that vary depending on the charge, set locally rather than at the state level.
In Smith’s case, the magistrate chose to jail him with a bond at $500, the lowest that is typically given.
His case, like many seemingly minor misdemeanors, is complicated by a long record for begging — more than a dozen charges. Wake County prosecutors also said he failed to show up for court five times in 2017 alone.
Generally, a homeless man does not have $500. And bail bond agents often will not help free a client for $500 because the amount they can be paid — 15 percent of the bond — isn’t worth the risk.
In Wake County, every defendant gets a first appearance before a judge the following day or Monday after a weekend arrest, regardless of the charge. In many other North Carolina counties, this is not true, meaning a misdemeanor charge can create an even longer wait.
The point of bail reform is to clear the jails of people who don’t pose any safety risk and aren’t likely to flee.
“Why keep them in jail for a shoplifting charge?” asked Charles Caldwell, the chief public defender in Wake County. “Say if you were an 18-year-old that’s been taking money out of the till at McDonald’s. How much of a bond do you need? Are you a danger to society? You’re very embarrassed and your momma is going to be mad.”
When Smith appeared in district court in Wake County on the Monday after his arrest, he appeared with 28 other inmates in one hour, each of them given about two minutes’ time to decide about a court-appointed lawyer and talk about the magistrate’s bond.
Within those two minutes, the accused usually asked to go home on a written promise to appear in court or an unsecured bond, meaning they would pay the value only if they skipped court. They offered various explanations.
John Christopher Doumar
Charge: Begging and carrying a concealed weapon. “It was just a knife. I had it in my coat pocket. I’ve come to every court case.”
Decision: $500 unsecured bond. Go home.
Delphine Holder Williams
Charge: Failure to appear in court on a simple assault charge. “I thought I had court on the 16th, which is Wednesday. I didn’t know I had court on the 17th. The 17th, I was in the hospital because I have chronic asthma and COPD.”
Decision: $500 secured bond. Back to jail.
Failure to appear
Not showing up for court is one of the most common reasons for being locked up before trial. In Forsyth County, Clerk of Court Susan Frye reported 33 percent of the jail population charged with failure to appear.
“Most say they forgot,” she said. “That’s our favorite word to hear.”
Missing a court date is serious: It triggers a new arrest and a bond that is double the first.
And while judges give stern reminders that showing up for court is the defendant’s responsibility, many simply lose track, said Caldwell, the public defender. This is especially true, he said, for clients with multiple charges on multiple days.
Further complicating the schedule: Court dates change regularly when lawyers on both sides ask for a “continuance,” or delay. Advocates at Stein’s conference noted that a person charged with a misdemeanor may show up for court on time twice, only to find the prosecutor asking for a delay due to a busy schedule. But when the defendant misses the third date due to a sick babysitter or a flat tire, there is no such lenience.
“Transportation can be very challenging,” said Hudson, the advocate in Durham, “to try to get on the bus with kids, or even have the funds to get on the bus. If they have a car, if they’ve been incarcerated for any amount of time, they won’t have money for gas. Or the car got impounded.”