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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.

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 pilot project providing for the early involvement of counsel in pretrial release proceedings. In a nutshell, first appearance “contract counsel” represent defendants at the first appearance. Covered defendants include those whose highest charge is a misdemeanor or Class H or I felony and those arrested for a probation violation. Contract counsel meet with defendants at the jail and review defendants’ criminal history before the first appearance. Because Judicial District 30B does not have a public defender, this pilot project would not have been possible without the support of North Carolina Indigent Defense Services (NC IDS). Under the program, contract counsel are retained and paid pursuant to contracts with NC IDS. Contract counsel serve only for the purposes noted above; assigned counsel are appointed to represent defendants after the first appearance. The pilot went into effect January 1, 2019.

Why Focus on Early Involvement of Counsel?

In North Carolina, defendants receive no representation at the first pretrial determination, the initial appearance. Because counsel typically isn’t appointed for an indigent defendant until the first appearance, counsel has had no time before then to meet with the defendant, obtain the defendant’s prior record, or prepare a meaningful pretrial strategy. Several reasons motivated Judicial District 30B stakeholders to undertake this reform. First, early involvement of counsel at pretrial proceedings will better inform judges’ pretrial decisions and protect defendants’ rights in light of the significant consequences associated with pretrial detention. See, e.g., Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017). Second, early involvement of counsel is recommended by national standards. ABA Standards for Criminal Justice: Prosecution and Defense Function, Defense Function Standard 4-2.3 (4th ed. 2015) (“A defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”). And third, early involvement of counsel has been specifically recommended for North Carolina. North Carolina Commission on the Administration of Law & Justice, Final Report March 2017: Recommendations for Strengthening the Unified Court System of North Carolina, Appendix D: Improving Indigent Defense Services, at 30 (2017).

Why Limit Counsel to Only Certain Defendants?

As noted, under the pilot program contract counsel are provided for defendants whose highest charge is a misdemeanor or Class H or I felony and those arrested for a probation violation. Why limit the pilot to these defendants? The primary reason is limited resources to pay for the new contract counsel. A second reason is that this reform was implemented as part of a package of pretrial reform initiatives, designed to reduce pretrial incarceration of low-risk defendants for whom detention would do more harm than good. Starting with lower-level offenses seemed a reasonable choice, given the program’s objectives.

Logistically, How Was It Implemented?

After stakeholders identified this reform as a priority for Judicial District 30B, I drafted an Implementation Plan, which I vetted with stakeholders and NC IDS. There were a lot of details to be worked out, including working with local jail supervisors to provide timely jail lists to contract counsel so they would know when they had clients to visit in jail; working with local jail administrators to set aside a private meeting place for counsel to meet with jailed defendants; ensuring that contract counsel would have access to the defendant’s criminal history record before court proceedings; ensuring that contract counsel had access to telephonic interpreter services, as needed, and access to a telephone to use those services when meeting with defendants at the jail; and working with stakeholders to set a consistent time for the first appearances at which contract counsel would be required. Once we had a final Implementation Plan that addressed all of the key issues, NC IDS hired the lawyers and the Senior Resident Superior Court Judge issued a Standing Order providing that the new contract counsel would represent covered defendants at the specified proceedings.

What Is NC IDS’ Role?

Because Judicial District 30B is not served by a public defender office, this reform would not have been possible without the support of NC IDS. To implement this reform NC IDS agreed to:

  • Hire, contract, and supervise contract counsel.
  • Set payment rates for contract counsel and approve all payments.
  • Establish procedures for handling defendants who are arrested on an Order for Arrest for a Failure to Appear and already have assigned counsel.
  • Develop contracts specifying performance expectations, including: meeting with the client at the jail before the first appearance; reviewing the client’s criminal history; preparing an intake form for each defendant; and advocating for the client at the first appearance.
  • Establish a plan to train contract counsel on pretrial advocacy, as feasible.
  • Establish procedures for dealing with conflicts.
  • Develop forms and other job tools for contract counsel, such as an intake form to be used during client interviews.

What Glitches Occurred?

Judicial District 30B is a two-county district, encompassing Haywood and Jackson counties. One glitch was that no lawyers from Jackson County applied to serve as contract counsel. As a result, the program began on January 1st with a full complement of lawyers in Haywood County, but none in Jackson. Since then potential lawyers from Jackson County have been identified and conversations are underway to see if the program can be implemented there.

How Will the Pilot Be Evaluated?

The Judicial District 30B reform project includes an evaluation component. In partnership with Professor Jamie Vaske of Western Carolina University, evaluation of this and other reforms is underway. Professor Vaske will be looking at the impact of this procedural change against a set of core pretrial metrics. The evaluation period runs through the end of the calendar year, and Professor Vaske will produce a report to stakeholders after that date. I’ll post an update when we have information from that evaluation.

3 comments on “Bail Reform in North Carolina—Pilot Project: Early Involvement of Counsel

  1. Am I correct in my assumption that all of this is based upon is that the initial appearances are not being conducted in a fair and impartial manner? That indigent defendants are getting penalized because they can’t afford legal counsel? This gives a direct indication that Magistrates are not competent or are not competently doing their job in setting “fair” bonds in NC. Am I missing something?
    I don’t want to make a wrong assumption but I see the only reason why you would provide earlier counsel is so the attorneys can make sure bonds are “administered correctly”. I know of no Magistrate that can’t understand or differentiate that $250 secured bond is harder to make on some defendants than others. Some defendants could easily walk away from $250 some not so much. This has and is taken into consideration.
    Could it be that the real problem is that there are not enough resources allocated to hiring additional district court judges? Wouldn’t it be more prudent to conduct a speedier trial for all defendants? Is it not blatantly obvious that it takes to long to get a defendant to trial?
    Maybe we should put a cap on what attorneys can charge or that all attorneys be required to represent X# of indigent defendants pro-bono (Sarcasm of course). Until this country morphs into a socialist utopia the 1% will have better legal counsel than us 99% regardless of anything the Indigent Defense Service implements. As a matter of fact the top 51% will have better legal counsel that the lower 49%.
    NC Magistrates are trained to be impartial and fair. They are supervised by competent District and Superior Court Judges. Bond guidelines are recommended and followed where needed. All factors should be considered when setting bonds and Magistrates know their “clients” more than anyone in the Judicial system! I could rail on and on about the advantages higher income groups have over the lower ones and how we can remedy but this is not for us to remedy. Until we no longer use monetary consideration in setting bonds it will always pose more of a stress on indigent defendants. If a person is financially successful (through hard work or luck) should they be penalized with higher bonds (fairer bonds) or be taxed to pay for indigent legal counsel?
    NC Magistrates have done an exceptional job in setting bonds for all defendants in the NC Judicial system. There is always room for improvement and with communication with District and Superior Court personnel there is no reason to believe that NC Magistrates won’t continue to provide competent bond requirements on all defendants regardless of their financial abilities.

  2. Would you share the implementation plan and the Standing Order?

  3. I apologize for not taking the time to rummage up the US Supreme Court case concerning right to counsel, but I do recall it was a Texas state court matter. Essentially it said that the right to counsel kicked in before the first appearance referenced in your article above. The right to counsel kicks in when the magistrate initially informs the defendant of his charges. That’s when court-appointed counsel lawfully should be addressed. Under NC law the magistrate is not empowered to address court-appointed counsel unless the chief district court judge authorizes that function. Under current law, chief district court judges should be authorizing magistrates to provide court-appointed counsel and an efficient notice system should be in place so that those appointed lawyers can be in place the very next day for the first appearance. We don’t do that here in Wake County. We leave poor defendants unlawfully without counsel until they’ve been in jail for days. In one instance I was assigned to a case on my client’s 60th day of incarceration. I initially assumed that I was the second attorney but I was the first. That was an extreme instance, however it is common for court-appointed counsel to receive notice of new cases 4 days after the clients’ arrest, well past the first appearance. We could fix a great deal of the bail problems by following the laws already in place, such as assigning court-appointed lawyers at the initial appearance before a magistrate upon arrest. We can pass more laws and procedures, but none of them will do any good if we don’t follow them.