Crime

Is Durham's bail-bond system unconstitutional? Why the judge said wait

In this photo taken Tuesday, July 7, 2015, a bail bonds sign hangs on the side of a bail bonds business near Brooklyn's courthouse complex and jail in New York. Officials say they’re eliminating cash bail for thousands of New Yorkers accused of misdemeanor and non-violent felonies in an effort to divert them from the Rikers Island jail complex. An $18 million plan to be unveiled Wednesday, July 8, will allow judges to instead require that people accused of certain crimes be monitored while they wait for their trial.
In this photo taken Tuesday, July 7, 2015, a bail bonds sign hangs on the side of a bail bonds business near Brooklyn's courthouse complex and jail in New York. Officials say they’re eliminating cash bail for thousands of New Yorkers accused of misdemeanor and non-violent felonies in an effort to divert them from the Rikers Island jail complex. An $18 million plan to be unveiled Wednesday, July 8, will allow judges to instead require that people accused of certain crimes be monitored while they wait for their trial. AP

A Durham defense attorney's challenge to the county’s suggested bail-bond schedule for those charged with crimes will have to wait until the next district attorney takes office.

Attorney Allyn Sharp cited the Eighth Amendment and parts of the Constitution in a motion filed Friday to reduce the bail for one of her clients. In addition to barring “cruel and unusual punishment,” the Eighth Amendment prohibits “excessive bail.”

Superior Court Judge Orlando Hudson decided to hold the motion in abeyance, meaning there will be no action on it for now.

“Patience is not my virtue,” Sharp said in an interview after the hearing, “but especially when I have clients who are sitting in jail despite the presumption of innocence.”

Santana Deberry, who won the Democratic primary for district attorney in a race with no Republican challenger, campaigned on reducing the jail population and lowering bond amounts. Barring any unexpected developments, she would take office in January.

“I feel like the time is ripe to address the cash bail system,” Sharp said. “My clients who are waiting in the jail can’t wait for seven months.”

Sharp was seeking to get bail reduced for Hunter Anderson, who is charged with statutory rape. He has been in jail for nearly two years, unable to post the $500,000 bail. People seeking release from jail on a secured bond typically pay a bondsman up to 15 percent of the bail amount.

Sharp says Anderson is indigent, although Assistant District Attorney Cynthia Kenney challenged that claim Friday, noting he has been able to hire an attorney.

In 2011, Hudson and Chief District Judge Marcia Morey issued a list of suggested bail amounts for each class of crime for Durham County. They made clear that it is not to be a prescribed list of amounts for each crime:

“It is recognized that the General Statutes ‘require a release decision related explicitly to all factors found to be relevant to the accused’s roots in the community.’ Consequently, ‘a bail schedule is incompatible with such an individualized decision.’ The circumstances of each individual case will govern each decision. However, as a general guideline only, and as a mere suggestion, and not to be blindly followed, these criteria may be considered by the magistrate and other judicial officials in setting amounts in a secured bond situation.”

But Sharp said the suggestions have come to be taken as a prescribed amount that judges and magistrates follow in setting bail and asked that Hudson strike the list.

Hudson said he doesn’t follow the list when he sets bail.

“I don’t have them memorized,” he said. “I don’t know what they read. I don’t follow them because I use my 40-plus years as a lawyer and 35 plus years as a judge to figure out what’s reasonable. … I would expect every official to figure it out that way.”

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Sharp responded that in her experience that has not been the case and that officials tend to follow it as law.

Hudson said the next times he issues a list of suggestion said he is going to get a red rubber stamp that says, “Bond schedule is not the law.”

Deberry, executive director of the N.C. Housing Coalition, won 48.8 percent of the vote in a three-way race for district attorney nominee in the Democratic primary, defeating incumbent Roger Echols. There is no Republican challenger, so Deberry will almost certainly be elected D.A. in November and take office in January.

“The people have elected,” Hudson said, “a new D.A. for Durham County, a D.A. who has run on the platform that the jail is too full, the bonds are too high, the trials are not speedy enough. I suggest to you that when she becomes D.A., there’s going to be a move on her part to change the bond rules for Durham County.”

Sharp argued that a move should made before that.

“If something is unconstitutional,” Sharp said, “I do believe it should change overnight.”

JUDGE HUDSON
Durham Superior Court Judge Orlando Hudson. Harry Lynch News & Observer file photo

“I don’t think it is unconstitutional,” Hudson said, pointing out that he and Morey couched the list as recommendations.

Hudson and Morey note in the document establishing the suggested bonds, that two main ideas clash in the establishment of bail: “One view sees preventive detention after arrest as necessary in a violent society. The other view is that because everyone is presumed innocent until proven guilty that there is a fundamental right to bail.”

Kenney, who is prosecuting Anderson in the statutory rape case, said potential harm to society and the defendant’s likelihood to appear in court were part of the consideration is setting his bail.

“I understand the passion,” she said. “I understand the arguments, the history that the court has proffered. … But there are many things in this system that work real well, and with integrity comes the guarantee of those wheels of justice moving.”

Matt Goad: mattgoad@gmail.com
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