Last month, my colleague Jeanette Pitts blogged about the new Pretrial Integrity Act enacted under S.L. 2023-75 (H 813). Since the bill was passed, I have gotten a few questions about potential issues that might arise once it goes into effect on October 1. This post addresses some of those concerns.
As a refresher, the law amends G.S. 15A-533(b) to expand the list of offenses for which only a judge may consider conditions of pretrial release. Previously, this provision applied only to first-degree murder cases; it now will apply to several other high-level felonies, such as kidnapping, rape, sexual offenses, and robbery. For these cases, the statute sets no time limit on when a judge must rule on pretrial release, although in-custody defendants are entitled to a first appearance before a judge within 72 hours after arrest, an issue I discuss at the end of this post.
The law also enacts new G.S. 15A-533(h), limiting a magistrate’s authority to set conditions of release for a defendant who is arrested for a new offense while the defendant was on pretrial release for another pending proceeding. In these cases, only a judge may set conditions of release within the first 48 hours after arrest for the new offense. A magistrate may set conditions within the first 48 hours after arrest for the new offense for violations of Chapter 20 of the General Statutes, but the new 48-hour rule applies to offenses involving impaired driving, namely:
- impaired driving, G.S. 20-138.1;
- impaired driving in a commercial vehicle, G.S. 20-138.2;
- operating a commercial vehicle after consuming alcohol, G.S. 20-138.2A;
- operating a school bus, school activity bus, child care vehicle, ambulance, other EMS vehicle, firefighting vehicle, or law enforcement vehicle after consuming alcohol, G.S. 20-138.2B;
- habitual impaired driving, G.S. 20-138.5; and
- death or injury by vehicle, G.S. 20-141.4.
The questions below begin with a discussion of the impact of the new 48-hour law, then turn to the offenses for which only a judge may set pretrial conditions.
The new 48-hour law applies to defendants who were on pretrial release before October 1.
New G.S. 15A-533(h) is effective for offenses committed on or after October 1, 2023. This language means that the new 48-hour rule applies to all offenses committed on or after that date, regardless of when the defendant was released on pretrial release. So, even if a defendant was released on pretrial release before October 1, 2023, a judge must set conditions of pretrial release within the first 48 hours for any new offense committed by the defendant on or after October 1, 2023. On the other hand, if a defendant who was released on pretrial release is arrested for a new offense late in the day on September 30, a magistrate has the authority to set pretrial release conditions for the new offense whether the initial appearance takes place before or after October 1.
A magistrate may set conditions if a defendant on pretrial release is arrested for failing to appear.
If a defendant is on pretrial release and is later arrested for failing to appear in court, a magistrate ordinarily has authority to set conditions of release during the initial appearance. The reason is that failing to appear is not a new offense unless it is specifically charged as such, a relatively rare occurrence. See G.S. 15A-543.
The new offense need not be similar to the pending offense.
New G.S. 15A-533(h) applies if a defendant is arrested for any new offense allegedly committed while the defendant was on pretrial release for another pending proceeding. For example, a defendant on pretrial release for a drug offense need not be arrested for another drug offense for this provision to apply. If that defendant is arrested for larceny, that defendant’s pretrial release conditions for the larceny must be determined by a judge in the first 48 hours.
A violation of procedural due process could occur if a judge was available to set conditions within the first 48 hours for defendants in custody pursuant to new G.S. 15A-533(h) but did not.
There are now several pretrial release statutes that deviate from the procedure requiring that pretrial release conditions be determined without unnecessary delay as part of the defendant’s initial appearance, typically before a magistrate. See G.S. 15A-511 (initial appearance procedures). Like new G.S. 15A-533(h), two of these statutes require that a judge rather than a magistrate set pretrial release conditions within a certain amount of time after arrest. For cases in which a defendant is charged with (1) certain domestic violence offenses, (2) communicating a threat of mass violence on educational property in violation of G.S. 14-277.6, or (3) communicating a threat of mass violence at a place of religious worship in violation of G.S. 14-277.7, a judge must set a defendant’s pretrial release conditions during the first 48 hours after arrest. See G.S. 15A-534.1, 15A-534.7. Similarly, new G.S. 15A-534.8 as enacted by S.L. 2023-6 (H 40), provides a 24-hour window during which a judge must set conditions of release for defendants arrested for rioting or looting under G.S. 14-288.2 or 14-288.6. This new statute is effective for offenses committed on or after December 1, 2023.
In the domestic violence context, case law has held that the defendant must be brought before a judge at the earliest, reasonable opportunity under G.S. 15A-534.1. State v. Thompson, 349 N.C. 483 (1998). A violation of the defendant’s right to procedural due process occurs where the defendant is held without conditions of pretrial release and a judge was available to set them. Id. In those cases, the remedy for such violations is dismissal of the charges with prejudice.
Outside of cases involving domestic violence under G.S. 15A-534.1, the courts have been reluctant to order dismissal for delays in setting pretrial release conditions without a showing of prejudice by the defendant. See, e.g., State v. Pruitt, 42 N.C. App. 240 (1979) (disapproving of failure to hold first appearance for defendant charged with felony and incarcerated for almost a month but finding no prejudice by the denial of his first appearance rights). In Thompson, however, the court did not require a showing of prejudice to preparation of the defense—a violation of the requirements of the domestic violence statute supported dismissal—so a defendant may be able to obtain dismissals for a violation of comparable time limits in new G.S. 15A-533(h), new G.S. 15A-534.8, and G.S. 15A-534.7. Still, dismissal of the charges is a drastic remedy and one our courts may be unwilling to extend, without a showing of prejudice, beyond the domestic violence context.
Administrative restructuring is not necessarily required, although it may be useful.
Since it is possible that a defendant’s right to due process may be violated if not provided a timely first appearance before a judge, care must be taken in getting defendants to court. However, chief judges need not completely reschedule or restructure court sessions to accommodate defendants who are awaiting a first appearance before a judge.
The defendant in State v. Jenkins, 137 N.C. App. 367 (2000), was arrested at 6:15 a.m. on a Friday and received a hearing before a judge at approximately 1:30 p.m. the same day. While the district court convened at 9:30 a.m. on Friday mornings, the afternoon session was typically devoted to bond hearings. The court of appeals held that no violation of the defendant’s constitutional rights occurred although the defendant was not brought before a judge at the first opportunity in the morning. The court held that “[a]lthough defendant was detained for approximately seven hours, we find his bond hearing occurred in a reasonably feasible time and promoted the efficient administration of the court system.” Thus, where the delay is short and attributable to the normal pattern of scheduling in the county, the defendant is less likely to prevail on a claim that his or constitutional rights were violated.
The point still remains that a defendant should be seen at the earliest reasonable opportunity.
A violation of procedural due process could occur if defendants in custody pursuant to G.S. 15A-533(b) are not afforded a timely first appearance.
Amended G.S. 15A-533(b) expands the list of offenses for which only a judge may consider conditions of pretrial release. While this revised statute does not impose a time frame during which a judge must set conditions (e.g., 24 hours, 48 hours, etc.), defendants arrested for those offenses are entitled to a timely first appearance in accordance with G.S. 15A-601. These in-custody defendants must be brought before a district court judge within 72 hours of arrest or at the first regular session of district court in the county, whichever occurs first. G.S. 15A-601(c). If the courthouse is closed for longer than 72 hours (e.g., holiday weekends), the first appearance before a district court judge must be held within 96 hours after arrest.
Once revised G.S. 15A-533(b) takes effect, the number of defendants requiring conditions to be set by a judge is almost certain to increase. While a judge has discretion to determine whether release is warranted for these offenses, a judge does not have discretion to delay or deny a first appearance altogether. The failure to hold a timely first appearance and consider conditions, as required by 15A-601, could violate due process in the same way that a failure to meet the specific time limits in domestic violence cases has been found by our courts to violate due process.
In addition to the question whether our courts would extend Thompson beyond the domestic violence context, discussed above, there is the question whether our courts would find a violation without specific time limits controlling when a judge must act. There is also the question whether a delay in the first appearance for these higher-level felonies, at which a judge may deny pretrial release altogether under 15A-533(b), is comparable to cases in which a defendant has the right to pretrial release conditions, such as in Thompson. While there are not yet any clear answers to these questions, these defendants should be brought in front of a judge as early as practicable to effectuate defendants’ rights and reduce the risk of violating them.
The Pretrial Integrity Act has generated several questions and concerns, and I anticipate more once the laws take effect. If you have questions or thoughts about the potential impact of these new laws, please feel free to send me an email at bwilliams@sog.unc.edu.