Pretrial Release — Part 1: Who Gets Conditions?

Pretrial release didn’t used to be complicated. But over the last 10 years or so that’s changed, with the addition of exceptions and special procedures. In a series of posts, I’ll address some key issues about pretrial release. This post focuses on the basic question: Who gets conditions of pretrial release?

As a general rule, all criminal defendants are entitled to conditions of pretrial release. However, there are a number of exceptions to this general rule including:

• Certain Fugitives. A fugitive defendant charged in another state with an offense punishable by death or life imprisonment under the laws of that state has no right to pretrial release. G.S. 15A-736. Also, a fugitive arrested on a Governor’s Warrant has no right to pretrial release. State of North Carolina Extradition Manual 22, 26, 29, 41 (Robert L. Farb, ed., 2d ed. 1987). These defendants should be committed to jail without conditions of release. The Governor’s Extradition Secretary takes the position that defendants who have waived extradition should be treated similarly.
• Involuntarily Committed Defendants. There is no right to pretrial release for a defendant who is alleged to have committed a crime while involuntarily committed or while an escapee from commitment. G.S. 15A-533(a). Such a defendant should be returned to the treatment facility where he or she was residing at the time of the alleged crime or from which he or she escaped. Id.
• Violators of Health Control Measures. G.S. 15A-534.5 provides that if a judicial official conducting an initial appearance finds, by clear and convincing evidence, that a person arrested for violating an order limiting freedom of movement or access issued pursuant to G.S. 130A-475 (incident involving nuclear, biological, or chemical agents) or G.S. 130A-145 (quarantine and isolation authority) poses a threat to the health and safety of others, the judicial official must deny pretrial release.
• Methamphetamine Offenses. G.S. 15A-534.6 authorizes judicial officials to deny pretrial release for specified methamphetamine offenses under certain conditions.
• Drug Trafficking Offenses. G.S. 15A-533(d) provides that it is presumed (subject to rebuttal) that there is no condition of release that will reasonably assure the appearance of the defendant as required and the safety of the community if a judicial official finds certain facts.
• Gang Offenses. G.S. 15A-533(e) provides that it is presumed (subject to rebuttal) that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official finds certain facts.
• Military Deserters. A military deserter is not entitled to conditions of pretrial release. 10 U.S.C. 808.
• Parole or Post-Release Supervision Violators. A person taken into custody for a violation of parole or post-release supervision under structured sentencing is not subject to the provisions on pretrial release. G.S. 15A-1368.6 (post-release supervision); G.S. 15A-1376 (parole).
• Probation Violators with Pending Felony Charges or Convictions Requiring Sex Offender Registration. As a general rule, when a defendant has been convicted in North Carolina, put on probation, and later arrested for a probation violation that occurs in North Carolina, he or she is entitled to conditions of release. G.S. 15A-1345(b). There are two exceptions to this general rule. G.S. 15A-1345(b1) provides that if a probationer is arrested for violating probation and either (1) has a pending felony charge or (2) has been convicted of an offense that requires registration under the sex offender registration statutes or that would have required registration but for the effective date of the registration program, the judicial official must determine whether the probationer poses a danger to the public before imposing conditions of release and must record that determination in writing. If the judicial official determines that the probationer poses such a danger, the judicial official must deny the probationer release pending the revocation hearing. If the judicial official finds that the defendant does not pose such a danger, the judicial official determines conditions as usual. If there is insufficient information to determine whether the defendant poses such a danger, then the judicial official must detain the defendant in custody for no more than seven days from the date of the arrest to obtain sufficient information to make that determination. G.S. 15A-1345(b1)(3).
• Out-of-State Probation Violators Covered by the Interstate Compact. The general rule that probation violators are entitled to conditions of release does not apply to defendants who are arrested on out-of-state warrants for probation violations when the state that imposed the probation and is now seeking to violate the defendant has a supervision agreement in place with the State of North Carolina pursuant to the Interstate Compact for Adult Offender Supervision. G.S. Chapter 148, Article 4B. Unlike other out-of-state offenders, out-of-state probation violators covered by Interstate Compact supervision agreements are not dealt with through extradition; rather, the Interstate Compact statutes and rules govern. One of those statutes provides that such a defendant may be detained for up to fifteen days and is not entitled to bail pending the required hearing. G.S. 148-65.8(a).
• Capital Offenses. A person charged with a capital offense is not entitled to conditions of pretrial release. Rather, the decision whether to set conditions for such a defendant is left to a judge’s discretion. G.S. 15A-533(c).