Opinion

NC judges are setting bail when they shouldn’t. Stop it.

Judges are setting bail in perhaps thousands of cases each year where it is not warranted, says columnist J. Peder Zane.
Judges are setting bail in perhaps thousands of cases each year where it is not warranted, says columnist J. Peder Zane. tlong@newsobserver.com

I heard a Democrat talk some sense the other day — that is, he said something Republicans can agree with.

It was my former neighbor, Walter Rand, who is running for district court judge in Wake County.

His proposal: We ought to follow the law.

His argument goes from common sense pablum to biting argument when you understand that his message is not directed at middle school students but the judges responsible for administering justice.

Turns out they routinely violate the law for setting bail, requiring it in perhaps thousands of cases each year where it is not just unwarranted, but illegal.

In theory, all defendants are presumed innocent; that’s why the General Assembly has identified a specific set of circumstances under which the accused can be detained before trial. One of these is if they are charged with a capital crime. Most people, thank goodness, are not; instead they are accused of nonviolent felonies and misdemeanors.

North Carolina law (15A-534b) says bail can only be set if the court has reason to believe the defendant will use his freedom to flee, intimidate a witness, hurt somebody, suborn perjury or destroy evidence.

Right away, that sounds screwy to me. If the court suspects someone might engage in those acts, why let him out at all? Doesn’t it follow that someone who has enough resources to raise bail might also be more capable of carrying out such acts?

Nevertheless, that’s the statute and Rand, who has practiced criminal law for 23 years, says it is routinely violated as bail is set as a matter of course for many defendants, even though they don’t meet the requirements.

It’s no surprise why this happens. It’s a lazy custom that offers some protection for the judge if the accused does engage in untoward acts while awaiting trial — hey, I set bail. And there is a vast and profitable bail bond business that depends on the practice.

Bail bondsmen help undermine the law in another way: bail is supposed to be akin to a progressive tax, based on the defendant’s ability to pay. That is, it should be just enough to sting, strongly encouraging the accused to show up in court. In theory, the rich and poor accused of the same crime should not have the same bail.

But with a bail bond, the defendant only pays 10 percent of the total. As a result judges are more likely to set, say, a $5,000 bail for an indigent person, knowing he will only have to cough up $500 for his freedom. This transforms bail into an often onerous fee; when the defendant appears for trial, the bondsman gets the entire amount back and the accused is out that 10 percent, which probably should have been his total bail in the first place.

Bail is a major reason most people charged with crimes — including many innocent people — decide it’s easier to plead guilty then pony up money they don’t have or wait in jail until their trial.

This is a national problem. California recently became the first state to eliminate cash bail; pre-trial release there will be based on whether the accused is considered a threat to public safety.

We don’t need a new law. We just need to follow the one we have — after closing a loophole.

The current statute required judges to “record the reasons” for setting bail “in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge.”

The problem, Rand said, is that the extent required in Wake County is zero.

In fairness, not every defendant’s rights are ignored. But many are. Requiring judges to state clearly why defendants meet the specific requirements for bail would be a giant step towards justice.

Contributing columnist J. Peder Zane can be reached at jpederzane@jpederzane.com.
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