On my drive home yesterday, I heard a news story on the radio. The report indicated that the Illinois Supreme Court had just upheld a law completely eliminating financial conditions of release in the Prairie State – apparently making it the first state in the country to abolish cash bail. The story didn’t detail the legal arguments at issue in the case, or even who had challenged the law. Given the national interest in bail reform, I thought the Illinois case might be a harbinger of things to come elsewhere, so I looked into it. This post briefly summarizes what I learned.
bail reform
Results from Empirical Evaluation of NC Judicial District 30B Bail Project
After former Chief Justice Mark Martin’s North Carolina Commission on the Administration of Law and Justice issued its final report recommending that North Carolina embark on bail reform pilot projects, North Carolina Judicial District 30B launched the first such project. Judicial District 30B consists of two rural counties in Western North Carolina: Haywood and Jackson. Among other things, the district is not served by a public defender, has no pretrial services, and in one of the counties caseloads are such that District Court is not held daily. The collaborative pilot project was led by Senior Resident Superior Court Judge Bradley Letts and involved a broad range of stakeholders including the District Attorney, local defense lawyers, District Court judges, magistrates, clerks of court, police chiefs, representatives from the Sheriffs’ departments, and more.
Federal Lawsuit Challenges Alamance County NC’s Bail System
In late 2019, bail litigation came to North Carolina. I have written before about successful federal bail litigation in other jurisdictions, including a decision holding that the bail system in Harris County, Texas was unconstitutional. Similar litigation is now underway in our state, and appears to be headed towards a consent preliminary injunction.
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.
What Happens When Prosecutors Stop Asking for Cash Bail?
Philadelphia’s recently elected district attorney implemented a No-Cash-Bail reform policy, providing that the district attorney’s office would stop asking for cash bail for defendants charged with 25 misdemeanor and felony offenses. A study of that policy change found, among other things, that it led to an increase in defendants released with no monetary or other conditions, a decrease in the number of defendants who spent at least one night in jail, but no accompanying change in failures to appear (FTAs) or recidivism. Aurelie Ouss & Megan Stevenson, Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail (George Mason Legal Studies Research Paper No. LS 19-08, Feb. 17, 2019). Those skeptical of eliminating cash bail have argued that taking a monetary incentive out of the system would result in higher FTAs and increases in pretrial crime. Id. at 5. The new study undermines those assertions.