North Carolina’s cash bail system is unjust and unconstitutional. It degrades our criminal justice system without benefiting public safety, unfairly discriminates against those who can’t afford to buy their freedom, and mocks the presumption of innocence. It should be dismantled and ultimately discarded by our state legislature.
But major reform doesn’t require new law. In fact, the one person with the most power to change this practice isn’t a state legislator or the governor, but a prosecutor: the elected district attorney.
So I was surprised when the district attorney currently seeking reelection in Durham recently said he supports legislative reform but that he had no power to change current practice. As a defense attorney who has represented clients in hundreds of bond hearings, I’ve seen firsthand how prosecutors have created current practice. They have fostered what former Superior Court Judge Gregory Weeks recently called a “culture of bail” in North Carolina – a culture in which the demand to pay money bail is accepted as an inevitable and unquestioned part of the pretrial process.
That isn’t how bail is supposed to work.
Under North Carolina law, money bail should be rare, ordered only when absolutely necessary to ensure public safety and the appearance of a person in court. In most cases, prosecutors should affirmatively advocate release with only a promise to return. But that rarely happens. Instead, prosecutors take an adversarial approach, reflexively demanding the full amount listed on rigid bail schedules, often without regard to the individual circumstances of each defendant. Too often, judges simply adopt the prosecutors’ demands.
The result is that people are jailed solely because they do not have money. Poorer, disproportionately minority defendants are pressured to plead guilty even in cases with weak evidence. Desperate to go home, and faced with the possibility of losing jobs, missing school, or needing to care for children, it is not unusual for innocent people to plead guilty when it is their only immediate chance at freedom. Those who choose to fight their charges from jail can wait years before trial.
A couple of years ago, I represented a fifty-five-year-old indigent black man charged with cocaine possession, with no allegation of dealing. The prosecutor offered two years of probation if he would plead guilty, but at the same time argued against reducing or unsecuring my client’s bond. My client did not want to plead guilty, but when the judge sided with the prosecutor and refused to enter a bond amount my client could afford, he decided to accept probation and enter a plea so he could go home. That’s when the prosecutor went ballistic. Despite the standing offer for probation, he wanted to punish my client for challenging the bail amount with another few weeks in jail. Thankfully, the judge allowed us to enter the plea that day, and my client was able to go home, but the prosecutor had actively worked to needlessly keep him in jail.
Just last week, I had another bond hearing with the same prosecutor on another drug case. My client, an indigent black man with mental illness and an intellectual disability was in jail, understandably unable to pay his $1 million bond on drug trafficking charges. Durham police had informed his landlord of the arrest, leading to the eviction of my client and his wife, a financial analyst, who are now homeless.
A $1 million bond for an indigent defendant charged with a non-violent crime is undeniably excessive and inconsistent with North Carolina law. So last week I asked a judge to unsecure the bond based on the relevant factors under the statute: my client’s inability to pay, his deep ties to the community, his lack of culpability due to intellectual disability, and his having no record of failing to appear, which suggests that he is not a flight risk. My request would almost certainly have been granted with the prosecutor’s cooperation.
But the prosecutor would not relent. He argued against reducing the bond and even against allowing my client into the pretrial services program, referring the judge to the local bail schedule, while offering more than a decade in prison in exchange for a plea (in contrast, a confidential informant had just received probation on his own felony drug charges in exchange for setting up my client). The judge denied my motion to have my client’s bond unsecured, and declined to reduce his bond at all.
Sadly, for Durham, these examples are not exceptional, nor are they limited to a single prosecutor. For these clients and many others like them, the abuse of money bail is life-shattering. Bondsmen typically charge around ten percent of the bail amount to get someone out -- money the defendant will never get back. Almost no one can afford to pay a bondsman $100,000 to post a $1 million bond, and certainly not someone who is indigent, homeless, and unable to work because of mental illness. The inherent discrimination of our cash bail system desperately needs to be addressed.
Other district attorneys around the country have taken ownership of the problem. Like in Chicago or Philadelphia, our district attorney could instruct prosecutors not to seek cash bail for certain charges. Durham prosecutors could also advocate for release on an unsecured bond as the default, diverging only when they have specific evidence of a risk to the public. And where supervision may be appropriate, Durham prosecutors could recommend the pretrial services program instead of money bail.
The district attorney is right that we need to overhaul North Carolina’s cash bail system. We also need our District Attorney to take a hard look at office practices and do everything possible to lessen the abuses of cash bail, rather than continue to allow prosecutors to contribute to them.
Allyn Sharp is a Durham-based attorney who focuses on the representation of underprivileged people charged with serious felonies at the trial and post-conviction levels.