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.

The best guidance on the constitutional parameters of a preventative detention scheme comes from the United States Supreme Court’s decision in United States v. Salerno, 481 U.S. 739 (1987). In Salerno, the Court upheld the constitutionality of the preventative detention provisions of the federal Bail Reform Act. Although the Salerno decision did not fully define the constitutional parameters of a preventative detention scheme, it held that the federal statute “fully comports with constitutional requirements.” Id. at 741. Thus, a scheme that tracks that statute is likely to be on solid constitutional ground, at least with respect to the issues addressed in Salerno. That is not to say that a procedure that deviates in some way from the federal statute would not also be constitutional. But the most conservative path is to track, as closely as possible, procedures and parameters that the Court has upheld. Briefly, those procedures and parameters include:

1. Regulatory purpose for detention. In Salerno, the defendants argued that the federal act was unconstitutional because the authorized detention constituted impermissible punishment before trial. The Court disagreed, finding that the authorized detention had a regulatory goal (preventing danger to the community), not a penal one.
2. Prompt detention hearing. Upholding the federal act against due process challenge, the Salerno Court relied, in part, on the fact that it provides defendants with “a prompt detention hearing.”
3. Right to testify, present evidence & cross-examine witnesses. The Court’s due process holding also relied on the act’s provisions affording defendants a “full-blown” hearing at which they can “testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses.”
4. Right to counsel. The Salerno Court also found it significant that the federal act gave defendants a right to counsel at preventative detention hearings. Commentators suggest that this protection is a fundamental feature of a constitutionally-compliant detention scheme.
5. Limited detention “net.” Holding that the incidents of pretrial detention under the act were not excessive in light of the regulatory goal, the Court noted that the act “carefully limits the circumstances under which detention may be sought to the most serious of crimes[,]” namely crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders. The Court returned to the act’s limited application later in the opinion, noting that the act applies only to those who “have been arrested for a specific category of extremely serious offenses.”
6. Relevant factors are enumerated. Upholding the federal act, the Salerno Court noted that the decision to release or detain must be rooted in statutorily enumerated factors.
7. Individualized determination. The Salerno Court stated: “When the Government proves . . . that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat.” A conservative reading of this language is that the preventative detention scheme should not automatically require detention for defendants charged with certain crimes; it should require an individualized determination.
8. Finding of probable cause. In upholding the federal statute, the Salerno Court relied on the fact that the Government must “demonstrate probable cause to believe” that the arrestee committed the charged crime.
9. Proof by clear and convincing evidence. The Court also found it significant that the federal law requires proof “by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.”
10. Limited length of detention. Finding that incidents of the acts’ pretrial detention were not excessive in relation to Congress’ regulatory goal, the Court noted, in part, that the maximum time of detention was limited by the stringent time limitations of the Speedy Trial Act. Although the Court declined to express a “view as to the point at which detention . . . might become excessively prolonged, and therefore punitive, in relation to [the] regulatory goal,” a conservative approach would limit the length of detention.
11. Conditions of confinement. The Salerno Court emphasized the federal statute’s detailed safeguards, including requiring defendants to be “housed in a facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal.”
12. Order states findings of fact and reasons. The Court’s holding also relied on the act’s requirement that a detention order be supported by written findings of fact and a statement of reasons.
13. Right to appeal. Finally, the Salerno Court upheld the federal act, in part, noting that it provides for immediate appellate review of the detention decision.

For more detail on these parameters and information on other issues related to pretrial preventative detention, check out my paper noted above.