This question in the title of this post came up in a recent class. The specific context involved a domestic violence defendant who was in jail waiting for a judge to set conditions of release pursuant to the 48 hour rule established in G.S. 15A-534.1. But a similar issue arises whenever a magistrate sets conditions of release for a defendant who is unable to make bond and so remains in pretrial detention. An example of a common condition is that the defendant not contact the alleged victim. Continue reading
Tag Archives: bail
The decision, handed down April 28, 2017, comes out of Harris County, home to Houston, Texas. If you decide to read the opinion, ODonnell v. Harris County, be prepared to spend some time with it. The opinion is 193 pages long, and one reading may not be enough. Readers will see similarities and differences between the bail practices in Harris County and North Carolina. This post doesn’t undertake to compare the two and instead does a not-so-brief review of the findings, conclusions, and relief ordered by the judge, Chief District Court Judge Lee H. Rosenthal (if you’re wondering, appointed by President George H.W. Bush in 1992). The bottom line is that the decision enjoins Harris County from “detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail.” Slip op. at 181. Continue reading →
Post bail and skip out on court in North Carolina and chances are that someone other than a law enforcement officer will come looking for you. Bail bondsmen in this state have expansive powers to recapture their principals. Bondsmen may use reasonable force to apprehend a principal—even before a bond is forfeited. See State v. Mathis, 349 N.C. 503 (1998). They may lawfully break and enter a principal’s residence to take custody of a person for whom they serve as a surety. Id. This includes the authority to overcome the resistance of a third party who impedes their efforts to apprehend a principal. Id. at 514. Nevertheless, the power of bondsmen, while broad, is limited in scope. Bondsmen may not forcibly enter into the home of a third party to recapture a principal unless the person with whom they contracted lives in the home. Id. And while bondsmen may apprehend suspects in a manner that approximates an arrest, they are not law enforcement officers and are not imbued with all of the powers accorded officers of the State. Id. Thus, bondsmen may not, for example, carry guns on school property, even in the process of chasing an armed and fleeing principal. State v. Haskins, 160 N.C. App. 349, 356 (2003).
The court of appeals in State v. McGee, ___ N.C. App. ___ (June 3, 2014), recognized another limitation on a surety’s right to apprehend a principal: Bail bondsmen are not exempt from the speed limitations in Chapter 20 when seeking to apprehend a principal.
Facts. Michael McGee, a bail bondsman, called 911 on the morning of August 31, 2010 to inform law enforcement officers that he was chasing a principal, George Mays, who had failed to appear in court. McGee requested assistance from law enforcement officers in apprehending Mays. McGee’s fiancée, Anecia Neal, was riding with McGee in the front passenger seat of his car while he pursued Mays. McGee drove at a high rate of speed – between 80 and 100 miles per hour—down a two-lane road with a 45 mile per hour speed limit. Mays passed another car in a no passing zone. McGee attempted the same maneuver, but lost control of his vehicle and went down an embankment. Neal died from injuries she sustained in the accident. McGee was indicted for involuntary manslaughter and misdemeanor death by vehicle.
Issues. The trial court instructed the jury that ““[b]ail bondsmen can make an arrest; however they may not violate the motor vehicle laws of North Carolina to do so.” (Slip op. at 4.) McGee objected to the instruction. He argued on appeal that bail bondsmen may violate the state’s motor vehicle laws when apprehending a principal; that the reasonableness of the means used by a bail bondsmen is a question of fact for the jury; and that the trial court lessened the State’s burden of proof by so instructing the jury.
Analysis. The court of appeals rejected those arguments. First, the court noted that the legislature enacted speed restrictions “‘for the protection of persons and property and in the interest of public safety, and the preservation of human life.’” (Slip op. at 6.) While G.S. 20-145 expressly exempts police vehicles from speed limitations when driven in pursuit of a suspect and with due regard for safety, no statutory provision similarly exempts bail bondsmen from such limitations when pursuing a principal. The court determined that, like any other citizen, bail bondsmen must follow the state’s motor vehicle laws—even when pursuing a principal who has failed to appear in court. The authority to use reasonable means to capture a principal does not create an exemption from the speed limit laws. The court further noted that a bondsman’s power to take a principal into custody arises from the contractual relationship between the principal and the surety. (Slip op. at 8-9). Bond agreements provide that the surety posts the bail and, in return, the principal agrees that the surety can recapture him or her at any time. Mathis, 349 N.C. at 509. By entering this contract, the principal voluntarily consents to the custody of the surety and, under common law, implicitly agrees that the surety or the surety’s agent may break and enter his home and use reasonable force to apprehend him. The principal may not, however, contract away the rights of third parties. Thus, the McGee court reasoned, just as a bail bondsman cannot enter the home of a third party (that is not the principal’s residence) without the third party’s consent, bondsmen pursuing principals on the state’s roadways cannot engage in conduct that endangers the lives and property of third parties. Third parties have the right to expect that others using public roads, including bail bondsmen, will follow the laws in Chapter 20.
Thus, the court concluded that the trial court’s instruction was proper. It clarified that a bondsman’s right to arrest a principal does not include the right to violate the state’s motor vehicle laws – a correct statement of the law. The instruction did not invade the province of the jury, which was left to determine whether the defendant violated G.S. 20-141(a) by driving at a greater speed than was reasonable and prudent given the circumstances.
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).
An interesting article in the New York Times, available here, talks about the increasing use of GPS tracking in domestic violence cases, either as a condition of pretrial release or as part of a probationary sentence. The story indicates that twelve states have passed legislation designed to enable the use of GPS in such cases. As far as I know, North Carolina’s not one of them. I did a quick search of proposed legislation last night, and it doesn’t appear that we are set to jump on the bandwagon this year, either.
I wonder, though, whether specific legislation is really necessary. Under G.S. 15A-534, a judicial official may impose “restrictions on the travel, associations [and] conduct . . . of the defendant” as conditions of pretrial release. And under G.S. 15A-1343(b1)(10), a judge may impose, as a condition of probation, “any . . . conditions determined by the court to be reasonably related to [the defendant’s] rehabilitation.” Perhaps those provisions are broad enough to encompass, for example, a ban on contact with the victim, enforced by the use of GPS monitoring.
In fact, it looks like GPS monitoring is regularly imposed by federal courts as a condition of pretrial release, even though the federal pretrial release staute, 18 U.S.C. § 3142, doesn’t mention GPS. Instead, it contains general language similar to that found in G.S. 15A-534, including a provision that the court may require the defendant to “abide by specified restrictions on personal associations, place of abode, or travel,” or require the defendant to “satisfy any other condition that is reasonably necessary.”
I’d love to know if GPS has been used as a condition of release here, and if so, in what kinds of cases. I’d also be interested to know whether it’s been used as part of a sentence, outside the sex offender context. Domestic violence cases are a logical application for the technology, but not the only one: a defendant who repeatedly trespasses on a particular public housing project, for example, might be sentenced to probation with GPS monitoring to ensure that he doesn’t reoffend. Please post a comment if you know of any cases in which GPS has been used, or, of course, if you have an opinion about its use.
The idea does raise a couple of interesting issues. One, given the budget crunch facing the state and most localities, GPS could be a significant money saver, since it might allow more defendants to be released on bond or to be sentenced to probation while still preserving community safety. Apparently, the jurisdictions that use it normally pass the costs of monitoring — eight or nine dollars per day seems to be the range — on to the defendant, making it even more of a bargain. But two, do we have the institutional capacity to use GPS, either pretrial or as a condition of probation? The federal courts have pretrial services offices that apparently have the ability to administer GPS monitoring imposed as a condition of pretrial release. Who would serve that role here? And can probation do it, for convicted defendants? Others will know more about this than I do, and I encourage you to contribute to the discussion.