Organizations around the country have called for bail reform. Here at home, a report by the North Carolina Commission on the Administration of Law and Justice recommended that North Carolina move forward with pretrial justice reform. A recent Fifth Circuit case holding that the bail system in Harris County, Texas violates due process and equal protection may create an impetus for jurisdictions to act: Litigation risk. Continue reading
Tag Archives: pretrial release
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 →
“Arrest on first positive drug screen. $50,000 secured bond.”
“Hold without bond for any probation violation.”
May a judge sentencing a defendant to probation include instructions such as these in the judgment suspending sentence? Continue reading →
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 →
In the 2015 legislative session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases to include dating couples. Continue reading →
[Author’s Note: This post has been substantively edited to make corrections in response to helpful comments from readers.]
A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.). Continue reading →
Last session, the General Assembly added a new subsection to the principal pretrial release statute, G.S. 15A-534. The new provision took effect on December 1, 2013, and has proven to be extremely frustrating to magistrates. It also raises some legal issues. The provision states:
When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars ($1,000).
Purpose of the provision. The apparent purpose of the provision is to address the problem of defendants who commit new crimes while on pretrial release. Another section of the same bill authorizes the denial of release for defendants who, while on pretrial release for a firearms offense, are charged with a new firearms offense. S.L. 2013-298 (adding new G.S. 15A-533(f)). There’s an intuitive appeal to the idea that if the original release conditions weren’t enough to prevent the defendant from engaging in criminal activity, then more stringent conditions should be imposed.
Determining the “amount of the most recent . . . bond.” A practical problem with the new rule is that it may be difficult for a magistrate to determine what the defendant’s “most recent . . . bond” is. Imagine that Dan Defendant was arrested previously and charged with common law robbery. A $50,000 secured bond was imposed by the magistrate in that case. The release order reflecting that bond is stored in NCAWARE, and the bond amount may also be entered in ACIS and reflected in CJLEADS. (Each of these acronyms represents a criminal justice-related computer system to which magistrates have access.) If Dan is arrested today and charged with possession of cocaine, does the statute require a $100,000 secured bond? Not necessarily, because Dan’s bond on the robbery charge may have been reduced by a judge at a bond hearing, and the statute requires a bond of at least twice the “most recent . . . bond.” The problem is that the practice across the state is inconsistent regarding entering bond reductions into the various computer systems. Some districts update the computers and some don’t, meaning that a magistrate can’t always determine Dan’s most recent bond by checking the computers.
As the AOC notes in this memo, magistrates may be able to address this problem during business hours by calling the clerk’s office to confirm the most recent bond, but that won’t work when Dan is arrested at 2 a.m. Even during the workday, it may be difficult to get a timely response from the clerk’s office on an inquiry of this nature. Another option may be to contact the jail in the county in which Dan was charged with robbery as the jail may have updated release information. But in some cases, a magistrate will be unable to access any information beyond what the computer systems contain. Based on several recent conversations with magistrates, my impression is that some magistrates will impose twice what is reflected in the computer system while others will determine that they have insufficient information with which to apply the new rule and so will set release conditions without regard to the statute. I can’t criticize either approach.
It’s worth noting that this problem becomes even more severe when the defendant has multiple pending charges in multiple districts. Only the “most recent” bond is relevant under the new statute, but it may be difficult to determine which case file contains the most recent release order.
Eighth Amendment concerns. In some instances, the new statute requires a secured bond far beyond what a magistrate would normally impose. Suppose that Donna Defendant is arrested for, and charged with, trafficking in cocaine. With the assistance of a bondsman, Donna posts a $100,000 secured bond. She stays out of trouble and shows up for court. Three months later, Donna gets in a shoving match with her cousin in a parking lot outside a bar and is arrested for misdemeanor simple affray. The magistrate normally would release Donna on a written promise to appear or perhaps a small unsecured bond. But the new statute requires the magistrate to impose a $200,000 secured bond for the affray. Does this run afoul of the Eighth Amendment’s prohibition on excessive bail?
It might. There’s not much case law interpreting the Eighth Amendment, but what there is generally suggests that there should be a relationship between the bond amount and the extent to which the defendant is a flight risk or a danger to the community. Stack v. Boyle, 342 U.S. 1 (1951) (bail is excessive if it exceeds the amount “reasonably calculated” to ensure the defendant’s appearance). Under the circumstances, $200,000 appears to be grossly disproportionate to the state’s interest in the misdemeanor affray charge, and under the Supremacy Clause of the Constitution, the Eighth Amendment trumps any conflicting state statute.
This is an issue about which magistrates may wish to confer with their chief district court judges. The judges may be able to provide more specific guidance about whether and when constitutional concerns warrant departing from the statute. For example, a judge might advise that magistrates disregard the statute when it would call for a bond more than five times higher than the bond recommended in the district’s bond policy. In fact, some guidance on this issue could be incorporated into the bond policy that must be promulgated by the senior resident superior court judge under G.S. 15A-535.
Another practical solution is to ensure that defendants who receive unusually high bonds as a result of the statute appear before a judge quickly. In some districts, misdemeanor defendants do not automatically receive a first appearance in district court in the day or two after arrest – their cases are simply set for the arresting officer’s next court date. But when a magistrate imposes an exceptionally high bond under the doubling statute, it may make sense to set the defendant’s case for the next session of district court so that a judge can review and adjust the bond. The new statute may not apply beyond the original determination of bond by a magistrate, but even if it does, the judge will be able to address any constitutional concerns raised by the bond.
Future of the statute. I have been asked several times whether the General Assembly will revise the statute in light of the difficulties it has created. I don’t know. I have heard some speculation that the statute could be revised so that it would apply only when the previous charge and the current charge involve similar offenses. If that happens, it would likely alleviate the constitutional problem but would not solve the practical difficulty magistrates face in trying to determine the most recent bond imposed on the defendant. If the statute remains in place, the court system may need to alter its record-keeping practices to ensure that current bond amounts are reflected in a computer system to which magistrates have access.
Magistrates walk a tight rope of sorts in setting conditions of pretrial release for defendants charged with impaired driving offenses. In addition to taking into account all of the factors they must consider when setting conditions of pretrial release in any criminal case and setting conditions accordingly, see G.S. 15A-534, magistrates who set conditions of release for a person charged with an impaired driving offense must consider whether the person is impaired to the extent that an impaired driving hold must be imposed, see G.S. 20-38.4(a)(3). A hold is required if the magistrate finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if he or she is released, of physical injury to the defendant or others or damage to property.
If an impaired driving hold is imposed, the defendant may not be released even if he or she satisfies other conditions of release by, for example, posting the amount of any secured bond. Instead, the defendant must be held until he or she is no longer impaired to the extent he or she poses a danger, or until a sober, responsible, adult appears who is willing and able to assume responsibility for the defendant until he or she is no longer impaired. G.S. 15A-534.2.
Many magistrates want to impose such a hold in every case in which a defendant is charged with impaired driving. They worry that defendants allowed to leave without supervision may return to their cars and drive away, again endangering themselves and the public. Yet the law does not authorize an impaired driving hold to be imposed in every case in which a defendant is charged with impaired driving without additional findings. While magistrates determine whether impaired driving charges are supported by probable cause, the determination regarding the defendant’s impairment for purposes of imposing a hold must be made by clear and convincing evidence. And the question is not whether the defendant was impaired at the time he or she drove. It is, instead, whether the defendant’s current state of impairment presents a danger if he or she is released.
The matter is rendered more complicated by a countervailing concern that causes some magistrates to shy away from imposing a hold even when the statutory standard is satisfied. A defendant charged with an impaired driving offense is entitled to dismissal of the charges if he or she can demonstrate a substantial violation of the right to pre-trial release and irreparable prejudice resulting from the violation. See State v. Knoll, 322 N.C. 535 (1988). Thus, when a defendant is held pursuant to G.S. 15A-534.2 following an impaired driving charge, the magistrate later may be required to testify at a hearing on the defendant’s motion to dismiss regarding the reasons for imposing the hold. If a court determines the hold was not warranted, the charges may be dismissed.
It isn’t always easy to make the right call. There are few bright-line rules, other than that finding probable cause for impaired driving, without more, does not warrant the imposition of a hold. See State v. Labinski, 188 N.C. App. 120 (2008) (finding, in a case in which the defendant’s alcohol concentration measured 0.08, that the magistrate substantially violated defendant’s right to pretrial release by imposing an impaired driving hold without any evidence or finding that the defendant’s impairment presented a danger). Our courts have not established a per se level at which a hold must be ordered. Cf. State v. Bumgarner, 97 N.C. App. 567 (1990) (finding that impaired driving hold was warranted based on magistrate’s consideration of trooper’s testimony, the magistrate’s personal observations, and the results of the sobriety test, which revealed a 0.14 alcohol concentration). That said, alcohol concentrations that are sufficiently high likely do, without more, support the imposition of a hold at an initial appearance that is held within a reasonably short time after the alcohol concentration is gathered. I’m not sure exactly where our appellate courts might set that threshold, but an alcohol concentration of 0.15 may well be enough, particularly given that that level of alcohol concentration renders a person a “[h]igh-[r]isk” driver for purposes of the limited driving privilege law, see G.S. 20-179.3(c1), and is treated, for sentencing purposes, the same as “gross impairment of the defendant’s faculties.” See G.S. 20-179(d)(1). At the other end of the alcohol-concentration spectrum, there doubtless are cases in which evidence supports a finding that a defendant with an alcohol concentration of 0.08 or lower presents a danger if released.
When magistrates impose an impaired driving hold, they must complete form AOC-CR-270, which contains a space for magistrates to list the reasons for the hold. When I talk to magistrates about filling out that form, I encourage them to list all of the evidence they relied upon in determining that a hold was required, including any such evidence related to the defendant’s alcohol concentration, the manner in which the defendant drove, and the defendant’s conduct and physical bearing before and during the initial appearance. Not only does this exercise provide the findings necessary to support the hold, but it can serve to jog a magistrate’s memory about why it was imposed in the event he or she later is called upon to testify.
What’s the practice in your district? Are impaired driving holds routinely or rarely imposed? When they are, are they based upon certain threshold alcohol concentrations or other common case characteristics?
Five years ago, the General Assembly authorized judges to require that defendants placed on probation for a Level One or Level Two impaired driving offense abstain from consuming alcohol for at least thirty but not more than sixty days as verified by a continuous alcohol monitoring system. Continuous alcohol monitoring systems (CAM) employ ankle transmitter devices that monitor a person’s sweat for the presence of alcohol and transmit those results to a service provider. While CAM devices look like and operate similarly to other electronic monitoring equipment used by probation officers, the lack of state funding for CAM, as contrasted to that available for other offender monitoring programs—electronic house arrest and GPS tracking—has limited its use and rendered it controversial. The vendor currently authorized to provide CAM charges an installation fee of $75 plus $12 for each day of monitoring. At $360 a month, CAM costs far exceed the one-time $90 fee for the electronic device used to monitor house arrest. Acknowledging CAM’s price tag, the General Assembly initially limited to $1,000 a defendant’s total CAM costs and prohibited a court, upon finding good cause that a defendant should not be required to pay, from imposing CAM absent local government funding.
Last year, in an act known as “Laura’s Law,” the General Assembly created a new Aggravated Level One punishment for DWI, which required as a condition of probation abstinence from alcohol as verified by CAM for a minimum of 120 days. The act further authorized judges to require CAM for up to the term of probation for a Level One or Two DWI and eliminated the $1,000 cap and the prohibition against imposing CAM absent local government funding. The legislature also enacted G.S. 15A-534(i), permitting a judicial official to impose abstinence from alcohol and CAM as a pretrial release condition for certain defendants charged with impaired driving offenses.
This year, the General Assembly enacted S.L. 2012-146 (H 494), an act that considerably expands authorization for CAM—both as a condition of pretrial release and of probation—and increases its significance in DWI sentencing.
S.L. 2012-146 amends G.S. 15A-534(a) to authorize abstinence from alcohol and CAM as a condition of pretrial release for any criminal offense committed on or after December 1, 2012 and to require that any violation of an abstinence/CAM condition be reported by the monitoring provider to the district attorney.
Similarly, the act broadens from impaired driving cases to criminal cases generally the authorization for alcohol abstinence and CAM as a condition of probation, effective for offenses committed on or after December 1, 2012. New G.S. 15A-1343(a1)(4a) adds, as a permissible condition of community or intermediate punishment, that the defendant “abstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.” New G.S. 15A-1343(b1)(2c) also adds as a permissible special condition of probation that the defendant “[a]bstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.” Amendments to G.S. 15A-1343.2(f) expand a probation officer’s delegated authority to include requiring that an offender submit to continuous alcohol monitoring when abstinence from alcohol consumption has been specified as a term of probation.
New G.S. 15A-1343.3(b) requires that probationers pay fees for CAM directly to the monitoring provider and prohibit the provider from terminating CAM for nonpayment of fees without court authorization.
Amendments to G.S. 20-28(a) permit a court, in sentencing a defendant convicted of driving while license revoked, to order abstinence from alcohol and CAM for a minimum period of 90 days as a condition of probation if the person’s license was originally revoked for an impaired driving revocation. Thus, a court may require CAM under G.S. 20-28(a) without the substance abuse assessment identifying alcohol dependency or chronic abuse that is required by G.S. 15A-1343(a1)(4a) and 15A-1343(b1)(2c).
Probation under G.S. 20-179
The act also amends G.S. 20-179, which governs sentencing for DWI and related offenses. Under current G.S. 20-179, CAM is required as a condition of probation for an Aggravated Level One sentence and is authorized as a condition of probation for Level One and Two punishment. For covered impaired driving offenses committed on or after December 1, 2012, new G.S. 20-179(k2) authorizes a judge to order “as a condition of special probation” for any level of punishment that “the defendant abstain from alcohol consumption, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety.”
New G.S. 20-179(k3) permits the court in its sentencing order to authorize a probation officer to require a defendant to submit to continuous alcohol monitoring for assessment purposes if the defendant is required, as a condition of probation, to abstain from alcohol consumption and the probation officer believes the defendant is consuming alcohol. If the probation officer orders the defendant to submit to CAM pursuant to this provision, the defendant must bear the costs of CAM.
Level One Punishment
The act also amends the mandatory punishment provisions for Level One sentencing in G.S. 20-179(g), effective for offenses committed on or after December 1, 2012. G.S. 20-179(g) currently requires a minimum term of imprisonment of not less than 30 days and provides that the term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. Amended G.S. 20-179(g) permits a judge to “reduce the minimum term of imprisonment required to a term of not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, for a period of not less than 120 days.” The amendments further provide that if a defendant is monitored on an approved CAM system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120-day monitoring requirement for probation.
Level Two Punishment
The act similarly amends the mandatory punishment for Level Two sentencing in G.S. 20-179(h), effective for offenses committed on or after December 1, 2012. Current G.S. 20-179(h) requires a minimum term of imprisonment of not less than seven days and provides that a sentence may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 7 days. The act amends these mandatory punishment provisions to allow suspension of a sentence upon imposition of “a condition of special probation” requiring that the defendant “abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety.” If the defendant is monitored on an approved CAM system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 90-day monitoring requirement for probation.
New G.S. 20-179(k4) provides that “[n]otwithstanding the provisions of subsections (g), (h), (k2), and (k3) of this section,” the court must not impose CAM if it finds good cause that the defendant should not be required to pay the costs of CAM “unless the local governmental entity responsible for the incarceration of the defendant in the local confinement facility agrees to pay the costs of the system.” Notably, this subsection does not incorporate the CAM requirement for suspended Aggravated Level One sentences imposed pursuant to G.S. 20-179(f3) or the CAM authorization in G.S. 20-179(h1), leaving unanswered the question of whether a judge may impose CAM under those subsections notwithstanding a defendant’s inability to pay.
Impact of S.L. 2012-146
S.L. 2012-146 carries out certain recommendations made by the Division of Community Corrections (DCC) in this 2008 legislative report on CAM. It expands the use of CAM beyond DWI cases and requires an assessment before CAM may be imposed as a condition of probation for criminal convictions (with certain exceptions). It does not, however, satisfy the DCC’s recommendation that “the use of CAM monitoring should be available to all offenders when warranted, regardless of their ability to pay.” The extent to which the lack of state funding limits judicial officials’ exercise of their broadened authority remains to be seen.
In the last in this series of posts on pretrial release I’ll address two issues that continue to create problems for judicial officials: defendants who refuse to identify themselves and setting conditions for noncitizens.
Defendants Who Refuse to Identify Themselves
Sometimes defendants refuse to identify themselves. Without knowing a defendant’s identity, it is almost impossible for a judicial official to determine what conditions of pretrial release should be imposed. The judicial official will not be able to determine, among other things, whether the defendant has a record, has previously failed to appear, or what connections the defendant has with the community that are relevant to flight risk.
If the relevant local policy does not address the situation, a judicial official probably may delay the initial appearance while a law enforcement officer completes an investigation into the defendant’s identity. Such an investigation may not be feasible in all cases, particularly when the crime is not a serious one. Note, however, that if a person (1) is charged with an offense involving impaired driving, as defined in G.S. 20-4.01(24a), or driving while license revoked when the revocation is for an impaired driving revocation, as defined in G.S. 20-28.2, and (2) cannot be identified by a valid form of identification, then the arresting officer must have the person fingerprinted and photographed. G.S. 15A-502(a2). This requirement does not necessarily result in an identification of the person, but it does impose additional duties on law enforcement. If the judicial official delays the initial appearance to allow the officer to investigate and the officer’s investigation is unsuccessful or cannot be done quickly, the judicial official should consider the other option set out below; a judicial official should not allow an indefinite delay of the initial appearance.
A second option for dealing with a defendant who refuses to identify himself or herself is to hold the initial appearance, set conditions in light of the potential flight risk associated with a person who will not identify himself or herself, and include as a condition of pretrial release that either the defendant adequately identify himself or herself or that there is an adequate identification of the defendant.
Regardless of which procedure is used, it is probably not permissible and it is not advisable to require a defendant to produce a United States government-issued picture identification. Also, any reasonable form of identification may be satisfactory even if the defendant does not have any written form of identification—for example, when a responsible member of the community vouches for the defendant’s identity.
Noncitizens and Pretrial Release
A judicial official has no authority to hold an arrestee simply because he or she is not a United States citizen. G.S. 162-62 (as amended by S.L. 2010-97) provides that whenever a person charged with a felony or an impaired driving offense is confined to a jail or a local confinement facility, the person in charge of the facility must attempt to determine if the prisoner is a legal resident of the United States by questioning the person and/or examining documents. If the prisoner’s status cannot be determined, the person in charge must, if possible, make an inquiry to the Immigration and Customs Enforcement of the United States Department of Homeland Security (ICE). However, G.S. 162-62 also provides that it cannot be construed to deny bond to a prisoner or prevent the prisoner from being released from confinement when the prisoner is otherwise eligible for release. Of course, citizenship status may be relevant in determining conditions of pretrial release, such as when the arrestee has no contacts in the community and was planning on returning to his or her home country shortly, thus creating a flight risk.
Another immigration issue sometimes arises when the arresting officers informs a judicial official that there is an ICE detainer or that ICE is “interested” in the defendant. One of ICE’s responsibilities is detaining and removing noncitizens who are not legally present in the country. An ICE detainer refers to a document issued by ICE, frequently to a local jail, asking the jailer to hold a person for up to forty-eight hours so that ICE can take custody of that person. For example, suppose a defendant is in jail on a $5,000 secured bond. Normally, when the defendant is able to make that bond, he or she must be released. However, if an ICE detainer is in place, the jailer will hold the defendant for up to forty-eight hours after the defendant makes bond so that ICE can take custody. When an officer brings a defendant to a judicial official and an ICE detainer is in place, the judicial official should follow the normal procedure for conducting the initial appearance and setting conditions of pretrial release. There is no special hold to implement, and the judicial official is not authorized to hold the defendant. The detainer is in place, and if the defendant meets his or her conditions of pretrial release, the jail will hold the defendant per the detainer. However, the fact that a detainer is in place may affect the judicial official’s decision about appropriate conditions. For example, if the defendant is facing deportation, there may be an elevated flight risk.
Likewise, when an officer brings a defendant to a judicial official and informs the official that ICE is “interested” or is “investigating whether a detainer should issue,” the official should follow the normal procedure for conducting an initial appearance and setting conditions of pretrial release. There is no special hold to implement, and the official is not authorized to hold the defendant for this purpose. However, in this situation the official may learn of facts that will be relevant to the determination regarding the appropriate conditions of pretrial release.