Double Bond

Last session, the General Assembly added a new subsection to the principal pretrial release statute, G.S. 15A-534. The new provision took effect on December 1, 2013, and has proven to be extremely frustrating to magistrates. It also raises some legal issues. The provision states:

When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars ($1,000).

G.S. 15A-534(d3).

Purpose of the provision. The apparent purpose of the provision is to address the problem of defendants who commit new crimes while on pretrial release. Another section of the same bill authorizes the denial of release for defendants who, while on pretrial release for a firearms offense, are charged with a new firearms offense. S.L. 2013-298 (adding new G.S. 15A-533(f)). There’s an intuitive appeal to the idea that if the original release conditions weren’t enough to prevent the defendant from engaging in criminal activity, then more stringent conditions should be imposed.

Determining the “amount of the most recent . . . bond.” A practical problem with the new rule is that it may be difficult for a magistrate to determine what the defendant’s “most recent . . . bond” is. Imagine that Dan Defendant was arrested previously and charged with common law robbery. A $50,000 secured bond was imposed by the magistrate in that case. The release order reflecting that bond is stored in NCAWARE, and the bond amount may also be entered in ACIS and reflected in CJLEADS. (Each of these acronyms represents a criminal justice-related computer system to which magistrates have access.) If Dan is arrested today and charged with possession of cocaine, does the statute require a $100,000 secured bond? Not necessarily, because Dan’s bond on the robbery charge may have been reduced by a judge at a bond hearing, and the statute requires a bond of at least twice the “most recent . . . bond.” The problem is that the practice across the state is inconsistent regarding entering bond reductions into the various computer systems. Some districts update the computers and some don’t, meaning that a magistrate can’t always determine Dan’s most recent bond by checking the computers.

As the AOC notes in this memo, magistrates may be able to address this problem during business hours by calling the clerk’s office to confirm the most recent bond, but that won’t work when Dan is arrested at 2 a.m. Even during the workday, it may be difficult to get a timely response from the clerk’s office on an inquiry of this nature. Another option may be to contact the jail in the county in which Dan was charged with robbery as the jail may have updated release information. But in some cases, a magistrate will be unable to access any information beyond what the computer systems contain. Based on several recent conversations with magistrates, my impression is that some magistrates will impose twice what is reflected in the computer system while others will determine that they have insufficient information with which to apply the new rule and so will set release conditions without regard to the statute. I can’t criticize either approach.

It’s worth noting that this problem becomes even more severe when the defendant has multiple pending charges in multiple districts. Only the “most recent” bond is relevant under the new statute, but it may be difficult to determine which case file contains the most recent release order.

Eighth Amendment concerns. In some instances, the new statute requires a secured bond far beyond what a magistrate would normally impose. Suppose that Donna Defendant is arrested for, and charged with, trafficking in cocaine. With the assistance of a bondsman, Donna posts a $100,000 secured bond. She stays out of trouble and shows up for court. Three months later, Donna gets in a shoving match with her cousin in a parking lot outside a bar and is arrested for misdemeanor simple affray. The magistrate normally would release Donna on a written promise to appear or perhaps a small unsecured bond. But the new statute requires the magistrate to impose a $200,000 secured bond for the affray. Does this run afoul of the Eighth Amendment’s prohibition on excessive bail?

It might. There’s not much case law interpreting the Eighth Amendment, but what there is generally suggests that there should be a relationship between the bond amount and the extent to which the defendant is a flight risk or a danger to the community. Stack v. Boyle, 342 U.S. 1 (1951) (bail is excessive if it exceeds the amount “reasonably calculated” to ensure the defendant’s appearance). Under the circumstances, $200,000 appears to be grossly disproportionate to the state’s interest in the misdemeanor affray charge, and under the Supremacy Clause of the Constitution, the Eighth Amendment trumps any conflicting state statute.

This is an issue about which magistrates may wish to confer with their chief district court judges. The judges may be able to provide more specific guidance about whether and when constitutional concerns warrant departing from the statute. For example, a judge might advise that magistrates disregard the statute when it would call for a bond more than five times higher than the bond recommended in the district’s bond policy. In fact, some guidance on this issue could be incorporated into the bond policy that must be promulgated by the senior resident superior court judge under G.S. 15A-535.

Another practical solution is to ensure that defendants who receive unusually high bonds as a result of the statute appear before a judge quickly. In some districts, misdemeanor defendants do not automatically receive a first appearance in district court in the day or two after arrest – their cases are simply set for the arresting officer’s next court date. But when a magistrate imposes an exceptionally high bond under the doubling statute, it may make sense to set the defendant’s case for the next session of district court so that a judge can review and adjust the bond. The new statute may not apply beyond the original determination of bond by a magistrate, but even if it does, the judge will be able to address any constitutional concerns raised by the bond.

Future of the statute. I have been asked several times whether the General Assembly will revise the statute in light of the difficulties it has created. I don’t know. I have heard some speculation that the statute could be revised so that it would apply only when the previous charge and the current charge involve similar offenses. If that happens, it would likely alleviate the constitutional problem but would not solve the practical difficulty magistrates face in trying to determine the most recent bond imposed on the defendant. If the statute remains in place, the court system may need to alter its record-keeping practices to ensure that current bond amounts are reflected in a computer system to which magistrates have access.