When a person is arrested, a law enforcement officer must take that person before a judicial official without unnecessary delay. Subject to certain statutory exceptions, defendants charged with most noncapital offenses are entitled to pretrial release in accordance with G.S. 15A-534, which requires that at least one of five types of release be imposed before a defendant can be released. One type of release a judicial official may impose on a defendant is a “custody release,” under which a defendant is placed “in the custody of a designated person or organization agreeing to supervise him.” G.S. 15A-534(a)(3). This is the extent to which the custody release is described. The North Carolina general statutes do not provide additional guidance as to qualifications of a custodian, terms of the supervision, or penalties for improper supervision.
Other states have pretrial release statutes that are identical or substantially similar to that of North Carolina, explicitly providing for pretrial release of a defendant into the custody of an individual or organization. Many of those statutes—like that of North Carolina—do not offer further guidance regarding the custodian’s supervision of the defendant. However, there are a few that offer additional detail about the parameters of the custody release.
This post highlights custody release provisions in select states. While none of them is binding on this condition in our state, North Carolina judicial officials may find the information useful in crafting their local pretrial release policies.
At a Glance
Most states have a pretrial custody release condition that allows the defendant to be placed in the custody of an “individual or organization.” Of these, nine states limit that custody to individuals, persons, or community members. Three states specify public agencies (like pretrial services), public officials, or publicly funded organizations as eligible custodians.
Many statutes require that the custodian reasonably assure the court that the defendant will appear at the required dates and time. Some go further to require the custodian to agree to keep contact with the defendant, assist the defendant in making arrangements to appear, and accompany the defendant at appearances. Others include public safety assurances, which require the custodian to assure the court that neither the defendant nor the community will be at risk and that the defendant will refrain from further criminal activity during the pretrial release period.
Some states establish qualifications for individuals to serve as custodians, exclude certain individuals or public agencies, or authorize the judicial official to interview the prospective custodian to determine their ability and willingness to meet these supervision requirements. Many states require the prospective custodian to agree to immediately report a defendant’s violation of any condition of release. Some states specify that the custodian cannot be made financially responsible for the defendant. Only one state was found to provide criminal liability for custodians for improper supervision.
A Closer Look
Tennessee
In Tennessee, a magistrate may release the defendant into the care of a qualified person or organization that will be responsible for supervising the defendant and assisting the defendant in appearing in court. The custodian is required to maintain close contact with the defendant, assist the defendant in making arrangements to appear in court, and, where appropriate, accompany the defendant to court. The custodian will not be required to be financially responsible for the defendant and will not forfeit money in the event the defendant fails to appear in court. Under Tennessee law, the department of correction and its officers are specifically excluded from eligibility as custodians for purposes of a custody release. Tenn. Code Ann. § 40-11-116(b)(1).
Maine
In Maine, a defendant may be required to remain in the custody of a designated person or organization agreeing to supervise the defendant, including a public official, public agency or publicly funded organization. The designated person or organization must be able to reasonably ensure: the appearance of the defendant at the time and place required; that the defendant will refrain from any new criminal conduct; and the integrity of the judicial process and the safety of others in the community. When it is feasible to do so, the defendant may be required to produce the designated person or organization. The judicial officer may interview the designated person or organization to ensure satisfaction of both the willingness and ability required. The designated person or organization must agree to immediately notify the judicial officer of any violation of release by the defendant. 15 MRS §1026(3)(A)(1).
Alaska
Perhaps the most robust statutory scheme is that of Alaska. In Alaska, a judicial officer may “place the person in the custody of an individual who agrees to serve as a third-party custodian of the person.” AS 12.30.011(14). The judicial official must find that the appointment will reasonably ensure the person’s appearance and the safety of the victim, other persons, and the community. AS 12.30.021(a).
Alaska’s statutes set forth qualifications of a proposed custodian. AS 12.30.021(b). The proposed custodian must provide information to the judicial officer about his or her residence, occupation, ties to the community, and relationship with the defendant, and provide any other information requested by the judicial officer. The person must be physically able to perform the duties of custodian of the defendant. The proposed custodian is also required to appear in court with the defendant personally, by telephone, or by other technology approved by the court. During this court appearance, the person must acknowledge to the judicial officer orally and in writing that he or she understands the duties of custodian and agrees to perform them. The proposed custodian must specifically agree to immediately report in accordance with the terms of the order if the person released has violated a condition of release. The person must also acknowledge orally and in writing an understanding that failure to perform those duties may result in the custodian’s being held criminally liable under Alaska law.
Under AS 12.30.021(c), a person is ineligible to serve as a custodian if any of the following circumstances exist:
- The proposed custodian is acting as a third-party custodian for another person.
- The proposed custodian has been unconditionally discharged within the previous five years from a felony, a crime under AS 11.41 (offenses against the person), or a similar crime in another jurisdiction.
- Criminal charges are pending in any state against the proposed custodian.
- The proposed custodian is on probation in any state for an offense.
- The proposed custodian may be called as a witness in the prosecution of the person.
- The proposed custodian resides out of state. A nonresident may serve as a custodian if the nonresident resides in Alaska while serving as custodian.
Most notably, Alaska is the only state that punishes custodians for improper supervision of a defendant. AS 11.56.758. A person commits the crime of violation of custodian’s duty if the person knowingly fails, when acting as a custodian appointed by the court for a released person under AS 12.30, to report immediately as directed by the court that the person released has violated a condition of release. Violation of custodian’s duty is a class A misdemeanor (with a maximum term of imprisonment of 1 year) if the defendant is charged with a felony. Violation of custodian’s duty is a class B misdemeanor (with a maximum term of imprisonment of 90 days) if the defendant is charged with a misdemeanor.
Custody Release in North Carolina
North Carolina judicial officials often impose custody releases, usually placing a defendant in the care of a close family member. A judicial official may impose another type of pretrial release (bond, written promise, electronic house arrest) in addition to the custody release. If a custody release is imposed, the defendant may elect instead to execute a secured appearance bond. G.S. 15A-534(a). It is important to note that a custody release is not the same as a release to a sober, responsible adult in connection with an impaired driving hold under G.S. 15A-534.2.
Local practices
When drafting or amending local pretrial release policies, senior resident superior court judges may wish to adopt practices from other jurisdictions in their own judicial districts. While the general statutes do not place limitations on custodial service, judicial officials may wish to engage in some sort of vetting process. For example, it may be a good idea to verify that the person is equipped with tools to reasonably assure the court that the defendant will appear at the required dates and times, including access to reliable transportation. Judicial officials imposing this condition might inquire as to the relationship between the person and the defendant, and like in Alaska, make note of the person’s residence, occupation, and ties to the community. Judicial officials might also consider a person’s criminal record in determining that person’s fitness for service as a custodian.
Several districts in the state mention custody releases in their local policies, but very few go beyond the descriptor offered in the statute. Some local policies note that a custody release is recommended if the defendant: is a minor, is in the legal custody of another person, is not mentally sound, is under the influence of an impairing substance, is ill, or is otherwise in need of care and supervision. Many of these policies also require that the proposed custodian be present and that both the proposed custodian and the defendant agree in writing to the terms of the custodial release. Some go as far as requiring that the defendant be a resident of North Carolina or that the proposed custodian reside or operate within North Carolina and agree to keep the defendant within the state. There are a few local policies that note “if a judicial official finds a defendant is otherwise appropriate for a supervised custodial release but does not have proper identification, the defendant may still be released when the designated custodian produces proper identification of their own identity and positively identifies the defendant.”
Release to pretrial services
G.S. 15A-535(b) provides that in any county that has a pretrial services program, judicial officials can release defendant to the supervision of that program, subject to its rules and regulations. The defendant can only be released to the custody of pretrial services if the program accepts supervision of the defendant and the defendant consents to be supervised. The statute provides that release to pretrial services would be in lieu of releasing the defendant on a written promise, unsecured bond, or custody release. Many local policies allow a defendant to be placed in the care of pretrial services when imposing a custody release, citing G.S. 15A-534(a)(3) as the authority to do so. However, the language of G.S. 15A-535(b) suggests that release to a pretrial services program is intended to be a separate mechanism for pretrial release and not an extension of a custody release.
Penalties
While judicial officials may have discretion in assessing a custodian’s suitability and defining the parameters of supervision, judicial officials do not have inherent authority to impose criminal or financial penalties for improper supervision. Criminal liability for improper supervision must come from the legislature. See In re Greene, 297 N.C. 305 (1979) (explaining that “[t]he power to define a crime and prescribe its punishment originates with the Legislative Branch”). Judicial officials may, as a term of the agreed-upon supervision, require the custodian to immediately notify the court in the event that the defendant breaches the conditions of release but may not impose criminal or financial penalties for the custodian’s failure to do so.
Does your district have custody release practices not mentioned in this post? I’d like to know more. Please feel free to share by email at bwilliams@sog.unc.edu.
Thank you to SOG research attorney Caitlin Little who conducted the nationwide jurisdictional survey to help inform this post.