In jails nationwide, nearly two-thirds of all inmates are waiting for their trials to start — presumed innocent and convicted, so far, of nothing.
This statistic, taken from a 2016 study by the U.S. Justice Department, is often quoted by advocates for reform, who argue that keeping defendants locked up before their trials is both expensive and unfair.
Many among that jail population remain in their cells only because they cannot afford their bail, either in cash or as a percentage paid to bail bondsman.
“The one who has money is going to be able to go home,” said John Clark, senior manager of the Pretrial Justice Institute in Washington, D.C., speaking to judges and prosecutors in Raleigh last month. “The one who doesn’t have money is going to stay in jail.”
Advocates pushing for change face a powerful obstacle — the bail industry. Its total revenue reached $2 billion in 2018, according to the market research firm ibisworld, and it has not shied from the political fight that threatens its future.
In California, the bail industry collected more than 500,000 signatures to block a new law outlawing cash bail, putting the question to a statewide vote.
And in North Carolina, the industry keeps a steady political presence. In 2018, the N.C. Bail Agents Association PAC gave $26,000 to candidates in the General Assembly, all of them Republicans, including Senate leader Phil Berger and House Speaker Tim Moore. The PAC has also given to Democrats over the years.
Last year, the nonprofit National Institute on Money in Politics ranked the North Carolina’s bail agents second-highest in the nation for political contributions, totaling $148,300 between 2009 and 2017.
If changes are made to the bail system in North Carolina, the question becomes: If money doesn’t decide freedom, what replaces it?
As advocates push for reform, and their critics push back, these approaches have emerged.
A criminal summons can replace an arrest for many minor crimes, requiring a court appearance without going to jail first. These can be issued by a police officer who would normally serve an arrest warrant, and they carry the same penalty for failing to show up for court.
Downside: Police have balked at the idea of freeing the accused before trial, calling it risky and appearing soft on crime.
Expand pretrial release
Wake County already keeps between 500 and 600 people in its pretrial services program.
Eligible defendants sign a contract to follow a set of guidelines that could include calling a case worker each week, showing up for all court dates, sticking to a curfew and getting drug and alcohol treatment.
Downside: As of 2016, only 40 out of 100 North Carolina counties offered pretrial services. While such services are estimated to be much cheaper than jail, they are not free. The most recent annual budget for pretrial services in Wake County is $543,000. After bail reform in New Jersey, counties sued over the “unfunded mandate” of adding bureaucracy and equipment to monitor people waiting for trial.
In many counties, people who failed to show up for court make up a large slice of the jail population.
To remind people of their court dates, many counties already offer electronic notices.
Downside: Many people charged with low-level misdemeanors don’t have access to email or texts. Some lack even a physical address.
Change the law
Both Wake County District Attorney Lorrin Freeman and District Court Judge Robert Rader say some North Carolina laws need to be changed.
For instance, if defendants fail to appear in court, even if they were in the hospital and have documents to prove it, the bail must automatically double.
“What we all agree is we don’t need to be holding people who are not a flight risk or a public safety risk,” Freeman said. “If we are, we have to be evaluating why that is happening.”
Hurdle: No bills have yet been filed in the North Carolina General Assembly to address bail reform.
Use a public-safety checklist
This year, Haywood County west of Asheville started a pretrial release program that requires judicial officials to follow a flowchart for all people charged with misdemeanors.
The chart for low-level offenders, such as those charged with trespassing, asks 13 questions. Among them: Does the case involve drug trafficking, a sex offense, a deadly weapon or violence? Does the person charged have a history of failing to appear in court or violating probation?
If no boxes are checked, the defendant is released on a written promise to appear, into someone else’s custody or given an unsecured bond, meaning no money is required.
“We’re avoiding detaining people based on an inability to pay,” said Chief Superior Court Judge Bradley Letts.
Mecklenburg County is trying a similar pretrial system, assisted by a $2 million grant from the MacArthur Foundation.
Cases get run through a checklist, and if no serious threat to public safety or chance of skipping out on court can be seen, the defendant goes home until trial. In its first year, the county saw a 10 percent drop in jail population.
Downside: Many civil rights groups, including the NAACP and ACLU, have opposed this sort of assessment process. A common criticism is that the questions negatively impact minorities because the same biases that can lead to arrest keep them from scoring well on a checklist.
End cash bail completely
In August, California passed a law ending cash bail, replacing it with a risk-based assessment and essentially outlawing the bail bonding industry in the most populous state. Gov. Jerry Brown promised it would make sure “rich and poor alike are treated fairly.”
Hurdle: Shortly after the bill passed, however, a group called Californians Against the Reckless Bail Scheme gathered 575,000 signatures and put the new law up for popular vote in 2020.
“Over 50 civil rights groups opposed the now-stopped Senate Bill 10 in California, which is the exact no-money bail system we are talking about nationally,” Jeff Clayton, executive director of the American Bail Coalition, told The News & Observer.
New Jersey has also scrapped cash bail for most defendants, allowing it only if all other options have been exhausted. In 2017, the state released 94 percent of the roughly 144,000 people it charged, according to a report from court officials. This dropped the pretrial jail population by 20 percent.
The bail bonding industry sued in federal court on behalf of Brittan Holland, a man charged in a bar fight who, as a result of the state’s new risk assessment system, was forced to wear an ankle bracelet before his trial rather than pay bail.
“Plaintiff Holland’s liberty is sharply curtailed,” the lawsuit said. “Among other things, he cannot shop for food or basic necessities and cannot take his son to baseball practice.”
The courts ruled against Holland and Lexington National Insurance Corp.