In this post, part of a series on bail reform in North Carolina, I highlight reforms that have been implemented in Orange County, North Carolina. My goal in doing so is to provide models and points of contact for jurisdictions interested in these efforts. If you’d like your jurisdiction’s work highlighted here, please reach out to me.
Jessica Smith
Overcriminalization & Ordinance Violations as Crimes: A County-Level Breakdown
In a post here, I noted that under state law, counties, cities, towns, and metropolitan sewerage districts have authority to create crimes through local ordinances. This is a somewhat controversial issue. As I’ve noted, one of the arguments made in the national conversation about overcriminalization is that too many minor activities are made criminal and that it’s not efficient, effective, or fair to address this activity through the criminal justice system. It’s further asserted that many low-level crimes—such as panhandling and sleeping in public places—criminalize poverty and homelessness when those issues should be treated as social needs. In fact, at a panel discussion on overcriminalization at my recent NC Criminal Justice Summit, national and state experts from across the ideological spectrum weighed in on this issue, agreeing that creating a crime is a legislative function and should be done by state lawmakers, not local governments. Those panelists included Vikrant Reddy, Senior Fellow, Charles Koch Institute; Nathan Pysno, Director of Economic Crime and Procedural Justice, National Association of Criminal Defense Lawyers; Tarrah Callahan, Executive Director, Conservatives for Criminal Justice Reform; and Mary Pollard, Executive Director, North Carolina Prisoner Legal Services and President, North Carolina Advocates for Justice. The 240 state leaders and stakeholders who attended the Summit echoed that sentiment. During live, anonymous polling during the session, attendees weighed in on three consensus reform proposals formulated by the panelists to address overcriminalization in North Carolina. One of those proposals was: Repeal code provision allowing local governments and administrative boards and bodies to create crimes. 75.72% of attendees supported that proposal, with 26.59% supporting it with caveats; 19.65% opposed it; and 4.62% were undecided.
Bail Reform in North Carolina: Pretrial Preventative Detention
In this post, part of a series on Bail Reform in North Carolina, I discuss preventative detention of defendants who are too dangerous or who present too great a flight risk to be released pretrial. At least twenty-two states, the District of Columbia and the federal system provide for pretrial preventative detention through constitutional or statutory provisions. Although neither the North Carolina constitution nor the General Statutes expressly provide a procedure for it, pretrial preventative detention occurs in North Carolina in two ways. First, the General Statutes allow defendants charged with capital murder to be held in jail without conditions. Second, due to concerns about public safety, flight, and obstruction of justice, other defendants are intentionally detained pretrial through the imposition of unattainably high bonds. The use of a secured bond for preventative detention is an imperfect solution for this simple reason: if a high risk defendant has sufficient resources, he or she can pay the bond or bail bondsman’s fee and walk out of jail with no supervision. But for many defendants, when a judicial official sets what is meant to be an unattainably high bond for the purpose of holding a defendant pretrial, that goal is achieved: the defendant remains in detention. Preventative detention—whether implemented through a statute or through the use of unattainably high detention bonds—must comply with the constitution. In a paper (posted here) I explore the constitutional parameters of preventative detention, provide guidance to policymakers and stakeholders on the core components of a constitutionally compliant preventative detention scheme, present several model preventative detention schemes, and discuss related issues. In this post, I offer a quick summary of the constitutional requirements for preventative detention.
A Simple Idea for Reducing FTAs on Summonses: Redesign the Form
In a series of posts I’ve been discussing bail reform in North Carolina and various options to reduce pretrial detentions that do more harm than good. Some of the solutions are tough and complicated. Here I offer one potential solution that’s neither hard nor complex: Redesign the Criminal Summons form.
What Happens When Prosecutors Stop Asking for Cash Bail?
Philadelphia’s recently elected district attorney implemented a No-Cash-Bail reform policy, providing that the district attorney’s office would stop asking for cash bail for defendants charged with 25 misdemeanor and felony offenses. A study of that policy change found, among other things, that it led to an increase in defendants released with no monetary or other conditions, a decrease in the number of defendants who spent at least one night in jail, but no accompanying change in failures to appear (FTAs) or recidivism. Aurelie Ouss & Megan Stevenson, Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail (George Mason Legal Studies Research Paper No. LS 19-08, Feb. 17, 2019). Those skeptical of eliminating cash bail have argued that taking a monetary incentive out of the system would result in higher FTAs and increases in pretrial crime. Id. at 5. The new study undermines those assertions.
Overcriminalization & Ordinance Violations as Crimes
Think you can consult the North Carolina General Statutes to know everything that’s been made criminal in North Carolina? Think again. Under state law, counties, cities, towns, and metropolitan sewerage districts have authority to create crimes through local ordinances. G.S. 14-4(a) (providing that, as a general rule, violation of such an ordinance is a Class 3 misdemeanor). Apparently, some local governments don’t realize that when they write ordinance violations they are creating crimes. What makes me say this? A 2018 law (S.L. 2018-69) required cities and towns that have enacted an ordinance punishable pursuant to G.S. 14‑4(a) to “create a list of applicable ordinances with a description of the conduct subject to criminal punishment in each ordinance” and submit it to certain Committees of the General Assembly by December 2018. At least one town reported that its ordinances don’t create any crimes, but that statement is contradicted by the town’s own Code of Ordinances which creates a host of crimes including curfew violations. (Want to check? The submissions are here).
Bail Reform in North Carolina—Pilot Project: Citation in Lieu of Arrest
In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of those reforms involves a new citation in lieu of arrest program. This reform includes implementation of a law enforcement-approved tool for patrol officers to encourage the increased use of citations in lieu of arrest for certain misdemeanors, in the officer’s discretion. The tool is a Cite or Arrest Pocket Card. Although the overall 30B project was a collaborative, multi-stakeholder endeavor, only the law enforcement community participated in the creation of the Pocket Card. The content of the card is reproduced below; in reality it’s a bright blue laminated card, the same size as the Miranda Warnings card.
Bail Reform in North Carolina—Pilot Project: First Appearances for All Defendants
In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms involves providing first appearances for in-custody defendants charged with misdemeanors and Class H and I felonies (highest charge) or arrested on a probation violation within 72 hours of arrest or at the first regular session of the district court in the county, whichever occurs first. The new procedure went into effect on January 1, 2019.
Bail Reform in North Carolina—Pilot Project: New Decisionmaking Framework
In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms is a new decisionmaking framework for determining conditions of pretrial release. Key features of the framework include:
- An easily implemented, stakeholder-created tool to quickly identify low-risk defendants who immediately can be released on non-financial conditions.
- A requirement that decisionmakers follow the statutory mandate and impose non-financial conditions unless they determine that such release will not reasonably assure appearance; will pose a danger of injury to any person; or is likely to result in the destruction of evidence, subornation of perjury, or intimidation of witnesses.
- Recommended maximum bond amounts for secured bonds and the requirement that ability to pay be considered in connection with imposition of that form of release.
Bail Reform in North Carolina—Pilot Project: Early Involvement of Counsel
In prior blog posts I outlined some of the reasons why stakeholders are interested in bail reform and some of the options that are being considered. In this one, I discuss one bail reform pilot project already underway in North Carolina.