The Bail Reform Act’s Pernicious Effects

Pre-trial detention is among the most misunderstood and abused aspects of the criminal justice system. Whether a person is detained or not, and the conditions under which a person is released, often sets the stage for the outcome of the case.

It is now widely understood that a detained person is far more likely to ultimately plead guilty to a crime, even though he or she may not have committed that particular crime, because the desire to get out of pre-trial detention is so great. (Most pre-trial detention, whether in the state or federal system, is accomplished through local jails where conditions are generally much worse than all but the very worst prisons.)

Most state systems focus on a combination of monetary bonds, bondsmen, pre-trial detention services, and electronic monitoring to ensure that a person released returns to court for the resolution of a criminal matter.

But the federal system is different. In 1984, Congress passed the Bail Reform Act which represented a dramatic shift in criminal justice priorities away from the more liberal 1966 Bail Reform Act. Under the previous system, pre-trial release was more common, sometimes in combination with monetary bonds.

But the 1984 Bail Reform Act, coming at the height of the War on Drugs and Nancy Reagan’s “Just Say No” campaign, was a more conservative approach to pre-trial detention, particularly as applied in the Eastern District of North Carolina.

The Netflix series Narcos refers to pre-trial detention then and now:

Congress, in revamping the federal pre-trial detention system in 1983, amended 18 USC Sec. 3142 to provide two methods of release. Under subsection (b), a person may be released on a personal recognizance or unsecured appearance bond unless the judicial officer determines that such release will not reasonably assure the appearance of the person at court or will endanger the safety of any other person or the community.

But most federal cases fall under subsections 3142(c) or (d): a P.R. or unsecured bond is determined not to be sufficient to ensure a person’s presence at court or the safety of the community, in which case the person is released on the least restrictive conditions under (c) designed to accomplish the twin aims of bond, or the person is detained pending disposition of the case under (d).

Congress also shifted the burden in favor of the Government by creating a rebuttable presumption against release in cases involving gun cases and many controlled substances offenses (among others). The idea, as Congress said in 1984, was that certain drug cases involved people with substantial ties to narco-traffickers whose appearance at trial could not be guaranteed because they would simply flee the country and resume illegal activity with cartels:

It is well known that drug trafficking is carried on to an unusual degree by persons engaged in continuing patterns of criminal activity. Persons charged with major drug felonies are often in the business of importing or distributing dangerous drugs, and thus, because of the nature of the criminal activity with which they are charged, they pose a significant risk of pretrial recidivism. The Committee received testimony that flight to avoid prosecution is particularly high among persons charged with major drug offenses. Because of the extremely lucrative nature of drug trafficking, and the fact that drug traffickers often have established ties outside the United States from whence most dangerous drugs are imported into the country, these persons have both the resources and foreign contacts to escape to other countries with relative ease in order to avoid prosecution for offenses punishable by lengthy prison sentences. Even the prospect of forfeiture of bond in the hundreds of thousands of dollars has proven to be ineffective in assuring the appearance of major drug traffickers.

The problem with the language of the Bail Reform Act is that it has been reduced from its original purpose of keeping the community safe from narco-traffickers (as it relates to drug crimes), to a general, all-purpose effort to incarcerate people pre-trial in order for the government to gain advantage over defendants.

In the EDNC, people are regularly detained even though, truthfully, there is little reason to believe they would be spirited away by a cartel, because the government merely raises the spectre of flight or risk to the community.

Attorneys and Bondsmen

attorney and be newsmen

North Carolina law prohibits lawyers from having any kind of interest in bonding activities. In addition, the North Carolina Rules of Professional Conduct make it a professional ethical violation for an attorney to be involved in bonding activity.

The reason for this is that a bondsman's interests are often not aligned with the client's or defendant's interests. The bondsman has an interest in having the bond set as high as possible so that the fee paid to the bondsman is high. In North Carolina, a bondsman can charge up to 15% of the total bond as his fee. A bond of, for instance, $10,000 would yield a fee of $1500 to the bondsman at 15%. Many bondsman charge less than 15%. But you can see that if the bond is set high the bondsman makes more money.

A defense lawyer's goal is to have the bond set as low as possible so that his client can be released from custody as cheaply as possible and as efficiently as possible. A defense attorney who also has an interest, financial or otherwise, in the bonding company may have a conflict of interest. On the one hand, the attorney may have a financial interest in the bond being set high. On the other hand, the attorney has a professional obligation to have the bond as low as possible in the interest of his client.

North Carolina law, therefore, prohibits attorneys, sheriffs, judges, and other court personnel, from having any financial interest in the bonding company so as to not create a conflict, or the appearance of a conflict of interest.

In fact, North Carolina law makes it a class 1 misdemeanor for a lawyer to have a financial interest, directly or indirectly, in the bonding company.

North Carolina law does not prohibit an attorney from recommending a bondsman or number of bondsmen so long as he attorney has no financial interest in the recommendation so long as he is not being paid a fee for the referral or recommendation.

 

Man who threatened Mayor McFarlane Better have a Rich Uncle

Bond WakeJudge Keith Gregory refused to lower the bond in a case involving alleged threats made against Raleigh Mayor Nancy McFarlane.

Alec Dane Redner, a 27-year-old Wake County resident, was arrested in January on charges of communicating threats, a class 1 misdemeanor in North Carolina, and with threatening an executive officer, a class I felony.

According to WRAL, Redner posted a message to McFarlane’s political website, reading: “You make a joke about the U.S. Constitution but soon you will (be) on the other end of the barrel.” The message also referred to the mayor by a crude name and told her to “watch out.”

These comments allegedly were made in response to statements McFarlane made that Redner believed were critical of Second Amendment gun rights.

A magistrate initially set the bond upon his arrest at $250,000 cash. Magistrates can sometimes set excessively high bonds, especially in high profile cases, assuming that once a district court judge looks at the bond, the judge will appropriately modify the bond.

Judge Gregory, at the prosecutor’s request, kept the bond the same. Collin Cook, the defense lawyer in this case, argued that the bond was unconstitutionally high.

The conservative talker 106.1 FM, normally a tough-on-crime outlet, briefly addressed the story, and pointed out that listeners had posted on websites/Facebook pages. I have been unable to find comments sections of 106.1-related blogs, but WRAL’s comments section does have some push back against a $250,000 bond by commenters who note that bond set by Judge Gregory is far in excess of what would normally be set for either a class 1 misdemeanor or a class I felony.

Last year, Judge Stephens and Judge Rader issued bond guidelines consistent with their authority under N.C.G.S. 15A-535. These guidelines establish that, after the judge makes a determination that the person should be released upon the execution of a secured bond, that judge should look to the suggested bond amounts, while exercising their own judgment in making bond decisions.

Bond is always an individual judgment by a judge about whether the person is a danger to society, and whether the person is a flight risk. The judge can look at a person’s criminal record (or lack thereof), the nature of the offense, ties to the community, the strength of the government’s case, the punishment level if convicted, history of employment, among other considerations outlined in 15A-534.

Since I was not at the hearing, I don’t know the arguments that were made in favor or opposed to a reduction of bond from $250,000, or whether Redner has a substantial criminal record or no criminal record. However, the suggested bond amount in this instance is more 25 times higher than the highest recommended bond for the crime of threatening a public official, a class I felony punishable by a maximum of 24 months only if Redner were a repeat, level six offender.

Because Redner cannot be sentenced to a straight active sentence unless he has more than 9 prior record level points, the default position in most cases for a Class I felony is of up to $10,000 secured, with the opportunity to use a bondsman to bond out for as little perhaps 10 percent.

In addition, most bonds are merely secured bonds, not cash bonds. In this instance, Redner will need to come up with $250,000, without resorting to a bondsmen where he would only need to pay a fee of up to 15 percent. Unless he’s a millionaire, or has a very rich uncle, he’s not getting out of jail.

Domestic Violence and No Contact Orders

North Carolina, like most states, has special laws that govern crimes committed between people who have had a past or current intimate, familial, or dating relationship. These laws govern both heterosexual and same-sex relationships, although the recent passage of Amendment One (banning gay marriage in North Carolina) has put some of these laws in doubt as they apply to homosexual relationships.

Domestic Violence Defined

Chapter 50B of the North Carolina General Statutes defines domestic violence as it relates to civil restraining orders. In the criminal context, similar rules apply. It’s important to note that the word “violence” does not necessarily mean the criminal act was particularly violent. It merely is a catch-all term used to categorize all crimes where the alleged offender and the alleged victim have been in a personal, intimate, or familial relationship. It doesn’t, generally, apply to mere friendships or acquaintances, unless the friends or acquaintances have previously been in an intimate relationship.

In Raleigh, DV cases are handled in special courtrooms by special prosecutors and appear before judges who have been specially trained in DV-related issues. From the very beginning, a case that has been defined as “domestic violence” will be heard in courtroom 4A of the Wake County Courthouse. If there is an accompanying DV-related request for a protective order, that will be handled in courtroom 9A, which is a civil courtroom.

Types of Domestic Violence Cases

Domestic violence cases can include felonies. Felony-related domestic violence cases are handled by Wake County felony assistant district attorneys. Most DV cases are misdemeanors, however, and are handled by one of two specially assigned ADAs who focus on DV issues.

These crimes can include violation of a 50B Order, Assault on a Female, Battery on an Unborn Child, Simple Assault, Communicating Threats, Interfering with Emergency Communications, Injury to Personal Property, Injury to Real Property, Cyberstalking, Stalking, or Harassment.

Pre-Trial Release and Domestic Violence

The first issue in a criminal case involves pre-trial release. In many DV cases, the alleged offender is detained. In most other criminal cases, the person will be granted a bond immediately upon arrest by a magistrate. But in Domestic Violence cases, a person can be held without bond for up to 48 hours or until the first opportunity to appear before a District Court Judge.

That means that if a person is arrested on a Friday or Saturday night, the person will be held until Monday morning at 11:00 AM.

In most cases, the State will request a bond or pre-trial release, or some combination of the two and a requirement that the alleged offender have “no contact” with the alleged victim.

Even if the victim wants to talk to the defendant, the defendant is prohibited by the order from communicating in an fashion with the victim. If the defendant violates the order, he is subject to additional criminal penalties, including revocation of pre-trial bond.

The victim may be able to have the no contact order lifted by talking to the District Attorney or his victim witness assistant, and this can frequently be facilitated by the defendant’s lawyer.

It’s important to address the “no contact” order at the First Appearance hearing that occurs soon after arrest because failing to do so means, in many cases, that the defendant can have no contact with the alleged victim until at least the next hearing which typically occurs at least three weeks after the first appearance.

What is a No Contact Order?

A “no contact” order is exactly what it says. The defendant may not contact the victim by any means, direct or indirect, via phone, text, email, or social media. The defendant may not pass messages through family members. The defendant may not send gifts. The defendant may not call to apologize.

A violation of a valid “no contact” order may mean new additional criminal charges, and possible revocation of the initial bond conditions.

Some “no contact” orders may permit communication about children, but such communication must be limited to issues or the exchange of children.

A no contact order may only be lifted by the court, and usually will only be lifted with the consent of the District Attorney. However, if the judge believes that the defendant has persuaded the victim not to come to court for future hearings, the judge may reimpose the no contact order.

Disposition of a Domestic Violence Case

Treatment is an important part of Domestic Violence court, and, where the person has little or no criminal record, and the conduct was not especially bad, the defendant may be offered a deferral program. The deferral program involves at least four components:

  1. The Defendant agrees to participate in a treatment program of some sort.
  2. The Defendant writes an admission that may be used against the Defendant if he fails to complete the deferral program.
  3. The Defendant agrees not to get into any further criminal trouble during the course of the program.
  4. The Defendant agrees either not to harass, assault or threaten (HAT) the victim, or agrees to have no contact whatsoever, depending on the circumstances.

In addition, most DV deferral agreements do not permit the defendant to expunge his record upon completion of the program. While the defendant may earn a dismissal, the defendant can’t erase a record of the arrest from his record (as would be true in other criminal cases).

The Defendant must also come back to court (or have his attorney come back to court) with proof of having enrolled, begun attendance, and completed the programs at various review court dates.

No Deferral Agreement Offered. What Next?

If no deferral agreement is offered (or the defendant doesn’t believe he should have to complete a deferral agreement), the case will be resolved usually by plea or trial. Plea agreements in DV court are the same as plea agreements in any other criminal court. A trial in DV court is also similar.

If found guilty following a trial, the person can appeal his case to regular misdemeanor appeals court for a jury trial.

Bail Bonding and Pre-Trial Release Programs under Assault

In an incredibly silly move, the North Carolina General Assembly is threatening to cut pre-trial release programs, which save the taxpayer about $70/day and have a 90 percent success rate. These programs save counties money, they save defendants money. But bail bondsmen and their allies in the legislature are happy to keep more people locked up just so they can profit off the ones who can bond out.

It’s frankly disgusting.

The Importance of Bond: George Zimmerman’s Lesson

Bond is one of the most important stages in a criminal case as George Zimmerman is now learning. Zimmerman is the man accused of second degree murder in the shooting death of Trayvon Martin in Florida.

In North Carolina, an arrestee has two opportunities to have bond set within the first 48 hours. The first opportunity occurs in front of a magistrate. The magistrate – who is a judicial official for purposes of constitutional law – sets the initial bond, usually consistent with the bond guidelines established by Wake County’s Superior Court Judge.

Where there’s flexibility, it is important to have a Raleigh criminal lawyer present during surrender so that bond can be set as low as possible. In some cases, bond can be set so low that the person can bond out immediately without having to be dressed out by the Wake County Detention Center staff.

If bond is set higher than one can afford, then the arrestee can stay in custody until his “first appearance” which is an appearance in front of a District Court Judge. A First Appearance requires that the defendant be informed of three things:

  1. The charges against him, including the maximum possible punishment.
  2. His next court date (also known as a Probable Cause hearing)
  3. And the question posed to the arrestee about what he’d like to do about a an attorney – hire an attorney, or request that the court appoint lawyer.

If someone has remained in custody, that person will almost always be granted a Court Appointed lawyer although, at a future time, that person can hire a lawyer to replace the public defender or court appointed lawyer.

As George Zimmerman has learned, bond is a serious matter because so long as the state can keep him confined pending trial, that places tremendous pressure upon him to plead guilty to a lesser charge before a trial is ever heard.

Electronic House Arrest vs. Electronic Monitoring

This post deals with the post-conviction application of EHA or Electronic Monitoring in a Raleigh criminal case.

If a person is sentenced within an Intermediate (I) sanction block, that person must face at least 1 of several intermediate sanctions, including:


  • Split Sentence – up to a 1/4 of the sentence in custody, with the balance hanging over the offender’s head during a term of probation.
  • Drug Court – requires that the person face at least 120 days in order to qualify
  • Electronic House Arrest
  • Electronic Monitoring

There is a huge difference between Electronic House Arrest and Electronic Monitoring, at least as it’s applied in Wake County. EHA is far more restrictive, allowing the offender to leave his house only for the following three reasons:

  1. School
  2. Work
  3. Counseling/Treatment

Other than those reasons, the person may not leave his or her house. In addition, the offender must first provide written proof to his probation officer in order to be allowed to leave his or her house to those locations. EHA is effectively a jail at home.

Electronic Monitoring is a less restrictive, but still closely monitored program that allows a person to leave his or her house during the day, with a curfew, to be determined by the probation officer, set each evening. A person’s travel may be restricted by the probation officer, but he may be permitted to go grocery shopping, pick up the kids from school, go to WalMart, and so forth, which are not permitted while on post-conviction EHA.

Pre-trial EHA is a different program, that isn’t as restrictive as post-conviction EHA.

Pre Trial Release Conditions

Jennifer Smith at the UNC School of Government’s criminal law blog has a useful post explaining the various exceptions to the general rule that people arrested ought to have conditions set upon which they can be released from custody. Those conditions may be as lenient as a “written promise to appear” or as part of a “pre-trial release” program, or may be unsecured bonds, secured bonds, or released into the custody of another (such as a parent or guardian). More here.

Among the various categories of people who are excepted from having conditions set are: drug traffickers, certain fugitives, people accused of certain methamphetamine offenses, probation violators, parole and post-supervision release violators, and people accused of capital offenses.

There are additional categories of defendants who may be denied pre-trial release, if only for a short time, including Domestic Violence defendants, who can be held for up to 48 hours or until they see a District Court judge, and DWI arrestees who may be held without bond until they either sober up or are able to be released into the custody of a sober person.

In addition, while the pre-trial release statutes are clear that the default position is a “written promise to appear,” in a very significant number of cases, bond is set no matter what the default position.

NPR aired a three part report on the Bail Bonding business a while back in other jurisdictions that noted the unhealthy connections between bail bondsmen who support candidates for judge who establish bonding conditions that then enrich the bail bondsman while, at the same time, keep thousands of people in jail who cannot afford to bond out under any condition or amount.

I’m unaware of any problems with connections between bail bondsmen and pre-trial release conditions in North Carolina, but it is always a concern where you have a semi-private system (bail bonding) in a public framework (the judicial system.)

How Bail is Set in North Carolina

Upon arrest bail will be set by a magistrate or judge in most cases.

Bond and bail guidelines are governed by Article 26 of Chapter 15A of the North Carolina General Statutes, and by local rules as established by the Chief Resident Superior Court Judge and Chief District Court Judge of each judicial district.

A defendant charged with a noncapital (i.e., not charged with First Degree Murder) must have conditions of pretrial release determined in accordance with 15A-534.

15A-534 establishes that a judge or magistrate must allow the defendant released on a written promise to appear (own recognizance), on an unsecured bond, or into the custody of a designated person, unless the judge or magistrate finds that doing so will not reasonably assure the defendant appears for trail, will pose a danger of injury to any person, or is likely to result in destruction of evidence or intimidation of witnesses.

In other words, the default position according to the statute is that the person be released from custody.

However, too often, and especially for felonies, magistrates and judges jump straight to a secured bond, which imposes a requirement that the defendant post some amount of money to the court before he will be released.

For wealthy defendants, this is merely an incovenience. But for middle class or poor defendants, coming up with a large amount of money on short notice can be a real problem, leading to days, weeks, or even months or years in jail priot to trial.

Typically, bail is set within the first 48 hours of arrest. If someone is arrested on a non-capital and non-domestic violence-related charge, then in most cases they will have a bond set immediately by a magistrate.

A magistrate is a judicial official, but not a judge. If a magistrate sets a bond that seems high, then the defendant will appear before a District Court judge within 48 hours where that judge will review the bond.

The judge may modify the bond in virtually any way – increase it, decrease it, or establish additional requirements.

If the person can make bond at that point, then the person can do so in one of two ways. Either the person can post the entire bond amount either in cash or in property (using a Deed of Trust) or the person can hire a bondsman, who is a licensed private agent of a bonding company who will take a fee – usually 10 percent, but no more than 15 percent according to statute – in order to stand in surety for the Defendant.

Hiring a lawyer before bonding can in many cases save money, since an attorney may be able to request a lower bond, which means less money posted or less money spent on a bondsman.

Modifying Bonds in North Carolina

I’ll paraphrase a question I recently was asked:

My son has a $500,000 bond trying to get it reduced. He as a court appointed lawyer. I need to know the steps to getting a bond reduction and how long does it take.

These are not steps you should take. They are steps his lawyer should take. Basically the lawyer is going to want to interview you and your son about various facts about his and your life that the judge can take into consideration when deciding to modify the bond. These questions are about his prior criminal history (if he has any), what ties to the community your son has, your son’s otherwise good behavior (school attendance, any clubs he belongs to, church, etc.), and the seriousness or not of the allegations.

In North Carolina, the prosecutor decides when the defendant goes before a judge. This is almost entirely unique in the United States. First Appearance – which it sounds like the above person went through since he now has a court appointed attorney – is the first shot at a bond hearing.

The second shot is usually his probable cause hearing, which is 3 or 4 weeks following the First Appearance. During that period, he will remain in custody if he can’t bond out on the original bond.

Your son’s attorney can ask the prosecutor to grant an earlier hearing, but this almost never happens.

After the probable cause hearing, he’d next have a chance for a hearing at Superior Court arraignment.

Depending on the issues, it can take several bond hearings to get the bond down to a level that you can afford to pay.

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