I recently taught a session at the magistrates’ conference about arrestable conditions of pretrial release. The session sparked a lot of discussion about the law surrounding pretrial conditions for in-custody defendants. It is well understood that when a defendant violates pretrial release conditions after being released from custody, the law allows several mechanisms for enforcement, including revocation of pretrial release, arrest of the defendant, and the setting of new, potentially stricter conditions of pretrial release. What’s less clear is (1) whether or not conditions of release are enforceable if a defendant has not yet been released, and (2) if they are, what tools judicial officials have for enforcement. This post addresses these questions.
pretrial release
Criminal Processes in the Context of the Pretrial Integrity Act
By now, court officials are familiar with the pretrial release laws as amended by the Pretrial Integrity Act. The application of G.S. 15A-533(b) regarding defendants charged with certain high-level felonies has been fairly straightforward. Application of the 48-hour provision, G.S. 15A-533(h), has not been as simple and has given rise to several questions, including what procedures to apply when a criminal process other than an arrest warrant is used.
Under the new law, when a defendant is arrested for a new offense while on pretrial release for a pending proceeding, a judge—rather than a magistrate—must set conditions of release for the new offense within the first 48 hours after arrest. This post addresses the application of this provision with regard to citations, summonses, orders for arrest, and indictments.
New Resource on the Pretrial Integrity Act
I am happy to announce that a new Administration of Justice Bulletin, The Pretrial Integrity Act, is now available. It answers several questions raised by the new pretrial release laws enacted by S.L. 2023-75. The bulletin explores the newly enacted changes, how they are affected by different charging documents, the impact of the new provisions on existing pretrial release laws, and potential challenges in implementation.
New Bulletin on Pretrial Release in Criminal Domestic Violence Cases
I recently finished a new Administration of Justice Bulletin on Pretrial Release in Criminal Domestic Violence Cases. It is available here as a free download. Through a series of questions and answers, the bulletin discusses pretrial release generally; examines the special rules of pretrial release for domestic violence cases; and explores the mechanics of the 48-hour rule, the impact of violations of these special pretrial release rules, and questions on limitations of authority.
A Closer Look at the New Misdemeanor DV Crime and the 48-Hour Rule
I previously blogged about the new misdemeanor crime of domestic violence, which will take effect on December 1, 2023. For the new offense, codified as G.S. 14-32.5, a person is guilty of a Class A1 misdemeanor if that person uses or attempts to use physical force, or threatens the use of a deadly weapon, against another person. The person who commits the offense must have a covered relationship with the victim, as specified by the statute.
While both the new misdemeanor domestic violence statute (G.S. 14-32.5) and the existing domestic violence pretrial release statute (G.S. 15A-534.1) require both a covered offense and a qualifying relationship, the requirements do not mirror one another. This post explores the interplay between the relationships listed under G.S. 14-32.5 and G.S. 15A-534.1.
Probation Violations and the Pretrial Integrity Act
The Pretrial Integrity Act has been in effect for one month now and has generated several questions about the implications of the new provisions. Some of the most frequently asked questions stem from probation violations, particularly how arrests for probation violations are treated under the new law. This post briefly addresses the two most common questions in this context.
Pretrial Release Guide Available
The School of Government has published a new resource on initial appearances and pretrial release. Although any judicial official is authorized to preside at an initial appearance, in most cases that official is a magistrate. This guide addresses pretrial release only in the context of magistrates’ authority and limitations.
More on the New Pretrial Integrity Act
Last month, my colleague Jeanette Pitts blogged about the new Pretrial Integrity Act enacted under S.L. 2023-75 (H 813). Since the bill was passed, I have gotten a few questions about potential issues that might arise once it goes into effect on October 1. This post addresses some of those concerns.
Final Report: Judicial District 2 Bail Project
In January 2020, North Carolina’s Second Judicial District (Beaufort, Hyde, Martin, Tyrrell, and Washington Counties) implemented two consensus bail reform initiatives. First, they implemented a structured decision-making tool for magistrates to use when making bail decisions. Among other things, the tool:
- creates a presumption for conditions other than a secured bond for people charged with Class 3 misdemeanors;
- provides screening factors to quickly identify individuals charged with intermediate-level cases (defined by local policy to include Class A1 – 2 misdemeanors and Class F – I felonies) who can be released on a condition other than a secured bond;
- affords those charged with Class A – E felonies no special presumptions or screening; and
- embeds within the decision-making process the statutory requirement that conditions other than a secured bond must be imposed absent a risk of non-appearance, injury to any person, or interference with the criminal proceeding.
Second, stakeholders implemented new first appearances for individuals detained on misdemeanor charges to ensure timely judicial review of bail.
These reforms were developed by a stakeholder team including judges, prosecutors, public defenders, clerks, magistrates, and law enforcement leaders. One of the team’s goals was to reduce pretrial detentions of individuals who do not pose a pretrial risk but are detained due to inability to pay bail. The UNC School of Government Criminal Justice Innovation Lab supported stakeholders in the development and implementation of reforms and, with support from local stakeholders, conducted an empirical evaluation of their implemented reforms. We recently released a final report (here) on that evaluation. This post summarizes key findings.
Update: COVID-19 and State Habeas Corpus
In an earlier bulletin, I discussed the possibility that state habeas petitions could emerge as a remedy for medically vulnerable prisoners in North Carolina, as they have in other states (most notably New York). While it remains too early to tell how North Carolina courts will respond, there have been some important developments in recent weeks, as a number of prisoners have asked courts to consider their petitions. This post explores the status of two of those cases and related legal issues regarding the viability of state habeas as a remedy for prisoners uniquely endangered by COVID-19.