About a year ago, in the spring and summer of 2020, the spotlight was on bail funds as a practical way to fight racism and injustice in America. Social media was filled with links to statewide and local community funds. Now? Crickets. But the issues surrounding bail have not disappeared just because the social media spotlight has dimmed.
Cash bail, while intended to ensure court appearances and prevent crimes, is fraught with problems. First, jailing someone accused of a crime seems antithetical to the principle of being innocent until proven guilty. Second, cash bail has disproportionate effects on minorities and poor people. Third, using cash bail can cause people to lose their families, homes, or even custody of their children. While it may seem strange that bail causes such losses, it should not be surprising as people who cannot pay bail lack job and financial security. Once people lose their jobs while they sit in jail, these losses follow.
Even though North Carolina statutes establish a preference for non-monetary pretrial release, “[n]inety-five percent of people in jail before trial in North Carolina are detained on secured bond [money bail].” This means ninety-five percent of people accused of a crime are being detained in prison before they have been found guilty. This statistic may indicate a need to focus not only on statewide statutory changes but also on how statutes are implemented. It seems that regardless of the law, local judicial officers can find ways to implement cash bail. This presents a problem for North Carolinians, since “studies show that low risk individuals who are detained pretrial are more likely to commit new crimes following release.”
While non-monetary pretrial conditions are the default per NCGS § 15A-534(b), N.C. law gives substantial latitude to judicial officers “to determine the appropriate conditions of pretrial release.” Local districts, per NCGS § 15A-535(a), must create policies for determining pretrial release, but they do not have to require written explanations when judicial officers deviate from a non-monetary condition to a secured bond or house arrest. Also, some localities use bond tables that only consider “the punishment level of the charged offense” to set bail amounts, when state law requires observing many factors to determine bail amounts. Lastly, N.C. statutes do not require a formal bond review process for people charged with misdemeanors.
However, unlike with misdemeanors, NCGS §15A-534(d) does provide more guidance on pretrial detention and release for defendants who were on probation for a prior offense and committed a felony. The judicial officer must determine if the defendant poses a danger to the public, his determination must be written, and a non-monetary condition must be used if the defendant is not a danger. If the officer lacks information to assess danger, the defendant must have a first appearance within ninety-six hours of his arrest to determine his pretrial conditions. If such guidance is available for felonies committed while on probation, why is it not available for misdemeanors?
Even in the absence of statewide reform, local reforms are still happening across North Carolina. As recently as this January, reports on Judicial Districts 21’s and 2’s reforms show “promising results.” Furthermore, Mecklenburg County has been a leader for years in addressing pretrial release and detention. In Mecklenburg County, the judge must first decide if someone needs to be placed in jail prior to trial. Only if the answer is ‘yes’ do judges then set bail. They also use an evidence-based pretrial assessment when assessing people’s likelihood of appearing and their potential to re-offend. Likewise, judicial officers must provide written explanations when they choose money bail or house arrest. The outcomes have been positive. Between 2009-2015, the jail population decreased 43%, public safety rates increased to 93%, court appearance rates increased to 98%, and the use of unsecured bonds increased from 5% to 28%.
There are also pilot programs in other districts, such as the Judicial District 30B pilot that started in 2019. This district implemented five reforms: (1) a decision-making framework to determine pretrial release conditions; (2) use of first appearance proceedings; (3) early involvement of counsel at pretrial proceedings; (4) increased use of summons instead of arrest; and (5) increased use of citations instead of arrest. The second reform ensures that misdemeanor defendants will not “spend days or weeks in custody on a secured bond imposed by a magistrate before a judge ever reviewed their conditions of release,” since state law does not require first appearance proceedings for misdemeanors. When bond is used, it must be set based on individual circumstances and not on a bond schedule. District 30B has seen encouraging results with approximately an 18% drop in the use of money bail, approximately a 17% increase in non-financial conditions, steady recidivism rates, and a minimal 1% increase in new charges during pretrial release or failure to appear at court.
While these reforms are directed at government officials, members of the community can also participate in bail reforms that tangibly help people. The Orange County Bail/Bond Justice Project provides a model for other counties about how to get involved. The project is a faith-based coalition dedicated to two goals: changing unjust bail practices and providing direct support to people charged with crimes. This project is more than a bail fund. It is a four-part project that organizes court observations, assesses data “to document equity issues in setting bail/bond amount,” develops a bail fund, and educates the community. The Project even helps defendants get to trial by sending text reminders for court dates and providing transportation.
It is time to turn the spotlight back on bail reform, but this time in an enduring way beyond a one-time donation to a bail fund. Government-led reforms are essential, but community-led reforms can also bring the issue to the government’s attention by collecting data while also directly assisting those in need right now.
 Colin Doyle et al., Bail Reform: A Guide for State and Local Policymakers, Crim. Just. Pol’y Program: Harv. L. Sch., 1, 7 (Feb. 2019), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=9a804d1d-f9be-e0f0-b7cd-cf487ec70339&forceDialog=0.
 Id. at 8.
 North Carolina Voters Want a Commonsense Approach to Pretrial Justice, Pretrial Just. Inst. 1, 2 (Dec. 12, 2018), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=844a230e-099b-e377-1140-9bdc23927472&forceDialog=0.
 Jessica Smith, Bail Reform in North Carolina, UNC Sch. of Gov’t (Feb. 14., 2019, 6:44 AM), https://nccriminallaw.sog.unc.edu/bail-reform-in-north-carolina-why-the-interest/.
 Jessica Smith, NC Superior Court Judges’ Benchbook, UNC Sch. of Gov’t, 1, 18 (Apr. 2015),https://benchbook.sog.unc.edu/criminal/pretrial-release.
 Jessica Smith & W.R. Kenan, Jr., Revising Local Bail Policy: Issues to Consider, 1, 2(Jan. 2020),https://cjil.sog.unc.edu/files/2020/01/Recommendations-for-Local-Bail-Policy-Revisions.pdf.
 Jessica Smith, Promising Results in Two New Bail Reform Evaluation Reports, UNC Sch. of Gov’t (Jan. 6, 2021, 8:39 PM),https://nccriminallaw.sog.unc.edu/promising-results-in-two-new-bail-reform-evaluation-reports/.
 Teo Armus, Mecklenburg County Has a New Bail Policy: But Does it Go Too Far- Or Not Far Enough?, Charlotte Observer (Mar. 20, 2019, 7:39 PM), https://www.charlotteobserver.com/news/local/crime/article227109254.html.; Doyle et al., supra note 1, at 4.
 Bail Policy for Twenty-Sixth Judicial District, N.C. Cts. (Jan. 23, 2019),https://www.nccourts.gov/assets/documents/local-rules-forms/Bail%20Policy.pdf?Ilxz6xa_CGHzzK9zpyEijZao9IRVZURc.
 North Carolina Voters Want a Commonsense Approach to Pretrial Justice, Pretrial Just. Inst. 1, 4 (Dec. 12, 2018), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=844a230e-099b-e377-1140-9bdc23927472&forceDialog=0.
 Jessica Smith, Results from Empirical Evaluation of NC Judicial District 30B Bail Project, UNC Sch. of Gov’t (Apr. 22, 2020, 9:52 AM), https://nccriminallaw.sog.unc.edu/results-from-empirical-evaluation-of-nc-judicial-district-30b-bail-project/.
 In the Matter of Promulgating Local Rules Relating to Bail and Pretrial Release for Judicial District 30B, N.C. Cts. (Dec. 28, 2018),https://www.nccourts.gov/assets/documents/local-rules-forms/Haywood%20and%20Jackson%20Bail%20Policy%202019.pdf?SwjMqg9_VKL0GjVCyNq4egpwSGqrND96.
 Smith, supra, note 11.