North Carolina’s new Pretrial Integrity Act

As a general rule, most defendants are entitled to have conditions of pretrial release set without unnecessary delay, and this typically happens at the initial appearance before a magistrate. G.S. 15A-511; -534. There is a carve out for capital defendants—only a judge can set conditions in a capital case and conditions are in the judge’s discretion. G.S. 15A-533(c). The statute contains other exceptions to the general rule, such as the 48-hour hold rule for domestic violence cases, providing that only a judge can set conditions within the first 48 hours of arrest. G.S. 15A-534.1(a). North Carolina’s new Pretrial Integrity Act, effective October 1, 2023, and applying to offenses committed on or after that date, creates significant additional exceptions to the general rule.

(The statute also changes a provision in juvenile law; that change is beyond the scope of this post.)

First, the new law expands the existing carve out for capital offenses, making it apply to a broader list of charges. For this expanded list of offenses, only a judge can set conditions and whether to set conditions is in the judge’s discretion. As a practical matter, this means two things: defendants charged with these offenses will have to be held for a judge to set conditions, presumably at the first appearance, and conditions may be denied, in the judge’s discretion. Essentially, the statute allows for preventative detention for additional offenses. Because the new statute does not include the procedural protections present in the federal pretrial detention statute upheld in United States v. Salerno, 481 U.S. 739 (1987), there may be some question about whether it will pass constitutional muster. The federal statute included an array of procedural protections including, among other things, a right to counsel, to present evidence, and to cross-examine witnesses at the hearing; a clear and convincing evidence standard; and an individualized determination. For more information about Salerno and these issues, see this paper. Judges can, of course, incorporate Salerno protections into preventative detention hearings.

The following offenses fall within the new preventative detention statute:

  • First and second-degree murder, G.S. 14-17, and attempts to commit those offenses.
  • First and second-degree kidnapping, G.S. 14-39.
  • First-degree forcible rape and sexual offense, G.S. 14-27.21; G.S. 14-27.26.
  • Second-degree forcible rape and sexual offense, G.S. 14-27.22; G.S. 14-27.27.
  • Statutory rape of and sexual offense with a child by an adult, G.S. 14-27.23; G.S. 14-27.28.
  • First-degree statutory rape and sexual offense, G.S. 14-27.24; G.S. 14-27.29.
  • Statutory rape of and sexual offense with a person 15 years old or younger, G.S. 14-27.25; G.S. 14-27.30.
  • Human trafficking, G.S. 14-43.11.
  • Assault with a deadly weapon with intent to kill inflicting serious injury, G.S. 14-32(a).
  • Discharging barreled weapons or a firearm into occupied property, G.S. 14-34.1.
  • First-degree burglary, G.S. 14-51.
  • First-degree arson, G.S. 14-58.
  • Armed robbery, G.S. 14-87.

S.L. 2023-75, § 2(a).

The Act’s second major change creates a new 48-hour hold for a judge to set conditions, similar to the current domestic violence hold. The new hold applies to defendants charged with new offenses while on pretrial release. The new provision excludes from its coverage all but six motor vehicle offenses. Put another way, the new 48-hour hold applies to these six motor vehicle offenses and all non-motor vehicle offenses:

  • impaired driving, G.S. 20-138.1;
  • habitual impaired driving, G.S. 20-138.5;
  • 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; and
  • death or injury by vehicle, G.S. 20-141.4.

The judge must ask for a criminal history report and risk assessment, if available, and must consider the criminal history when setting conditions. As with the domestic violence hold, if a judge isn’t available within 48 hours, a magistrate must set conditions.

Like the statute’s first change, this one also likely means that more defendants will end up on the first appearance calendar, for conditions to be set by a judge.

If you’re interested to dig into the potential impact of these provisions in your community, you can do that on the Lab’s Measuring Justice Dashboard. To assess potential impact of the first provision, use the Criminal Charging metric’s rank tab to search for the offenses covered by the new preventative pretrial detention provision in your county. As noted, under the new law, only a judge can set conditions for these offenses, and conditions are in the judge’s discretion. To assess potential impact of the second provision, use the Pretrial Criminal Activity metric’s rank tab to look at the types and numbers of new pretrial offenses committed in your county.

Some jurisdictions have already reached out to the Lab for help analyzing jail data to assess impact of the Act. We’re gearing up to do that—if you’re interested, let us know. Finally, we’ll be updating our Model Local Bail Policy to incorporate the new law.

Lab Director Jessie Smith co-authored this blog post.