The Challenge 

Although our incarceration rate per capita has declined since its peak in 2008, the United States still incarcerates more of its residents than any other nation. North Carolina’s prison population, for example, more than doubled between 1980 and 2016, and is projected to exceed capacity by 2025.

On any given day, the US houses nearly 500,000 pretrial detainees – at a cost of about $14 billion in taxpayer dollars. To counter this trend, North Carolina aims to be a leader in criminal justice reform, particularly in the area of pretrial proceedings. Pretrial refers to the time period between the arrest and trial, during which individuals arrested are presumed innocent. After they are arrested, they must await a decision by a judge or magistrate, who determines whether the individual will be released back to the community or detained in jail to await trial.

To determine pretrial release, justice officials often use a bond table that provides a secured bond (also known as bail) amount based on the level of offense. The bail system is meant to (1) allow all but the most dangerous criminal defendants to go free before trial, (2) ensure that defendants appear at all required court proceedings, and (3) protect the public by preventing new crime. However, those who cannot afford bail have no choice but to remain in jail, resulting in greater numbers of poor detainees being held, while wealthier individuals tend to go free. Risk to society doesn’t factor into this purely monetary equation.

Research indicates 86 percent of individuals in North Carolina jails have not been convicted of any crime. Detaining possibly innocent defendants not only raises ethical concerns, but also leads to longer prison sentences, higher recidivism rates, and increased numbers of guilty pleas. Additionally, many individuals who are held before trial lose their jobs and housing, which makes them unable to resume their lives if charges are dismissed or they are declared innocent. Pretrial reform may improve quality of life for arrested individuals, as well as decrease crime rates and lower the taxpayer burden of housing these individuals before their trials.

 

The Solution

A pilot program in Haywood and Jackson counties – which started in January 2019 – made changes to the local bond system in order to address the issue of pretrial detention. It replaces the bond table with a more nuanced decision-making chart that considers the defendant’s character and the nature of the accused crime. The pretrial release pilot program only involves people charged with low-level offenses — things like simple drug possession, writing worthless checks, misdemeanor larceny, or shoplifting.

Judicial District 30B, which includes Haywood and Jackson counties, has a new pretrial release policy that allows judges to set an unsecured bond. Low-level offenders identified through the program may be given an unsecured bond, which means they will be released after booking and processing and only have to pay the bond if they fail to appear for their court date. The policy also encourages law enforcement to issue summons or citations instead of arresting people for non-violent and non-drug-related misdemeanors. Other pieces of the program include prompt judicial review of cases, which keeps individuals from waiting weeks for a hearing, and the involvement of legal counsel early in the process in order to ascertain whether the charges are valid. If this pilot program proves successful, it could be expanded to all 100 counties in North Carolina.

 

The Players

The program represents a collaboration between the county sheriff’s office and the court system. Legal services are provided via contract with Indigent Defense Services, which allows counsel to be involved earlier than if all defendants were represented by public defenders. Nonprofits in the community assist the program by providing supports to those who lost housing and jobs because of detention, including peer support programs administered through the Haywood Paths Center.

Jessie Smith of the UNC School of Government will produce an evaluation of the pilot and create a toolbox for other jurisdictions to use if they also want to modify pretrial detention. Smith states that many stakeholders, including law enforcement, were concerned with the fairness of the existing system, as well as its cost and potential difficulties for public safety. She also suggested that jurisdictions experiencing overcrowding in local jails may want to consider reforms in order to alleviate that issue.

 

The Promise

Partners in the pretrial reform program hope to redirect individuals involved in the criminal justice system via reforms concerning arrests, judicial review, legal counsel, and bond structures so that fewer individuals will be detained pretrial. These changes may address the bias of pretrial bail towards the wealthy, as well as the taxpayer burden of incarcerating individuals who have not been declared guilty of any crime. These benefits may be particularly applicable for first-time and low-level offenders who pose minimal security risks to the community or are likely to get their charges dropped.

Deciding whether or not to implement some or all of these pretrial reforms in other judicial districts will depend on the community’s needs, priorities, and resources. However, consulting with important stakeholders – community members, law enforcement, nonprofits, and the judicial system – can illuminate the issues an area may experience with pretrial reform and allow them to seek solutions for  their community.