Freedom For Sale
In North Carolina, as elsewhere in the nation, there is growing recognition that money bail unfairly penalizes indigent defendants by incarcerating them for months or even years to wait for their trial while comparable wealthy defendants walk free as they await trial.Constructed in 1973, the New Guilford County courthouse has been showing its age for the better part of the past two decades. Like many buildings from this era, the facade is a harsh block of colorless stone with slits inserted for windows that don't open.
The architectural style outside, known as Brutalism, seems to have infected much of the criminal justice treatment of indigent defendants inside. Bond court is held in Courtroom 2C, which sits on the southwest side of the building. Tuesday through Friday at 2:00 PM, the small courtroom fills with defense attorneys and prosecutors in front of the bar and friends and family of inmates and alleged victims behind the bar – all waiting for their chance to argue that their particular inmate should or should not be allowed pretrial release while their case works its way through the legal system.
Guilford County criminal court operates under a court order known as “pretrial release policies in the eighteenth judicial district.” The document sets out “suggested bond amounts” for every violation of the penal code, from local ordinances, like allowing weeds to grow over 12 inches high in your yard, to major felonies, like murder or drug trafficking.
It was in this stark setting earlier this year that Emorbridge Poole and David Stewart got their welcome to the world of court approved pretrial release bail policies – where those with money can buy their freedom while the less fortunate languish in local jails for the exact same allegation; where indigent citizens spend more time in local jails than the law allows for their alleged crime simply because they don't have the money to purchase their freedom; where poor, non-violent misdemeanants remain in jail while rich, violent felons are released; where a person's access to liberty is based exclusively on their ability to pay a pretrial bond.
On February 27, 2018, Mr. Poole was charged with trespassing while intoxicated at a local gas station and knocking over a store rack, all misdemeanor offenses. One week later, Mr. Stewart was charged with a violent felony in connection to shots from a “semi-automatic handgun” being fired into a convenience store as well as resisting arrest.
Unemployed with no resources, Mr. Poole was appointed a public defender. Despite the relative minor nature of the charges and the lack of any finding that he was a danger to himself or others, that he would not appear in court as ordered, or that he would intimidate potential witnesses, he was denied release until he paid the court $500.00 and was subsequently incarcerated in the local jail to await trial. On the other end of the spectrum, facing charges of feloniously conspiring to shoot a handgun into occupied property and resisting arrest, Mr. Stewart was released from custody after posting a $5,000.00 bond.
Mr. Poole provided the court with a sworn affidavit indicating that he had “$0” “monthly income,” “$0” “cash on hand and in bank accounts,” and “$0” “assets,” yet he remained incarcerated for three weeks because he didn't have $500.00 to purchase his freedom. This came at a cost of $82.00 per night to the taxpayers of Guilford County, for a total of over $1,500. Meanwhile Mr. Stewart, whose family was able to post his $5,000.00 bond, was released immediately to live under minimal judicial supervision in Greensboro despite the violent nature of his charges.
The story of defendants like Mr. Poole and Mr. Stewart is all too common in courthouses across North Carolina. In this article we will explore the problems posed by the current haphazard state of pretrial release policies in North Carolina. We will explain how these seemingly arbitrary bail policies, which allow pretrial bail to act as an illegitimate form of preventive detention, violates the Fourteenth Amendment of the United States Constitution as well as Article I, section 27, of the North Carolina Constitution. We will conclude the article by making suggestions for reform that require pretrial detention to be based on objective evidentiary factors such as whether a defendant is a flight risk or a danger, rather than how wealthy the defendant is, that will bring North Carolina back into compliance with state and federal law.
“In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Two bedrock principles of constitutional law guide any pretrial detention analysis. In the words of the U. S. Supreme Court: “[T]he fairness of relations between the criminal defendant and the State” is analyzed under the Due Process Clause, while “the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants” is analyzed under the Equal Protection Clause.
I. Constitutional Impetus for Bail Reform
In applying this legal framework to a question of pretrial release for a criminal defendant, the Fifth Circuit Court of Appeals held as far back as 1978 that while “[u]tilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements, [t]he incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Several federal district courts have also applied this reasoning to invalidate bond systems like those in North Carolina that have the effect of imprisoning indigent defendants solely because they cannot afford bail.
One such example is Jones v. City of Clanton. In 2015, the city of Clanton, Alabama, used a bail schedule much like the one used in Guilford County to set bail in misdemeanor cases. Under this bail schedule, bail was set at $500.00 for each misdemeanor charge. Thus, defendant Christy Varden was given a $2,000.00 bail for four misdemeanor charges. When she couldn't make the bail she was required to wait in jail until her trial. In a subsequent lawsuit alleging that the city's bail policies violated Ms. Varden's constitutional rights, the court ruled unequivocally: “[U]se of a secured bail schedule to detain a person after arrest, without an individualized hearing regarding the person's indigence and the need for bail or alternatives to bail, violates the Due Process Clause of the Fourteenth Amendment.”
More recently, in Odonnell v. Harris County, 882 F.3d 528 (5th Cir. 2018), the plaintiffs brought a § 1983 action, alleging that Harris County's system for setting bail for indigent misdemeanor defendants violated both Texas statutory law and constitutional law and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
The Texas Code requires court officials to conduct an individualized review when setting bail, basing decisions on factors such as ability to pay, the charge, and community safety. However, the district court found that these individualized assessments do not actually occur in practice. The district court concluded that the County violated both the procedural due process rights and the equal protection rights of indigent defendants and granted the plaintiff's motion for a preliminary injunction.
On appeal, the Fifth Circuit affirmed the district court's ruling. With regard to due process, the court concluded that the procedure used in Texas did not sufficiently protect indigent defendants from magistrates imposing bail as an “instrument of oppression” and thus violated the plaintiffs' due process rights.
With respect to the equal protection claim, the court emphasized that the County's policies and procedures violated the Equal Protection Clause both because of “their disparate impact” on indigent defendants and because the County's custom and practice purposefully “detain[ed] misdemeanor defendants before trial who are otherwise eligible for release, but whose indigence makes them unable to pay secured financial conditions of release.” The court conceded that ordinarily, “[n]either prisoners nor indigents constitute a suspect class.” However, the court emphasized that indigents do receive heightened scrutiny where two conditions are met: (1) “because of their impecunity they were completely unable to pay for some desired benefit,” and (2) “as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” Under this framework, the court found that indigent misdemeanor defendants were in fact unable to pay secured bail to obtain pretrial release, and as a result they sustained an absolute deprivation of “freedom from incarceration.” Thus, the court concluded that the County's use of secured bail also violated the Equal Protection Clause.
Similarly, North Carolina courts have held that failure to provide a criminal defendant with a meaningful opportunity for pretrial release can result in a due process violation. For example, in State v. Thompson, the defendant alleged that N.C. GEN. STAT. § 15-A-534.1(b) as applied violated his procedural due process rights when a magistrate scheduled his pretrial release hearing exactly forty-eight hours after commitment even though there were judges available to hold an earlier hearing.
In determining whether the delay violated due process, the court began by noting that “it is beyond question that the private interest at stake, liberty, is a fundamental right.” Specifically, the “traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” The Court based its recognition of the right to freedom prior to trial in the “principle that there is a presumption of innocence in favor of the accused [which] is the undoubted law, axiomatic and elementary, and . . . lies at the foundation of the administration of our criminal law.” Next, the court concluded that once a judge became available, “further delay in providing this hearing did not serve any underlying interest of the State.” Because Mr. Thompson had a fundamental liberty interest in pretrial release and there was no legitimate state interest to be served by the delay, the Supreme Court of North Carolina held that “the application of N.C. GEN. STAT.. § 15A-534.1(b) violated Thompson's procedural due process rights.”
II: Seizing the momentum for reform in North Carolina
Although money bail has been deeply entrenched in North Carolina for decades, successful litigation around the country challenging the constitutionality of wealth-based pretrial release makes the moment ripe for bail reform in North Carolina. While advocates of the money bail system argue that it is a “well-founded tradition”  that “allows individuals of all financial means to leverage their social networks and community ties to obtain pretrial release,” they fail to recognize that tradition is not a rational reason to detain non-threatening indigent defendants.  It also ignores the fact that not every defendant has the benefit of a robust social network or community ties that can assist in such times of need.
By definition, most indigent defendants do not have sufficient financial means to post bail. Instead of allowing wealthy defendants, even those facing charges of violent crimes, to purchase their freedom through money bail while poor defendants sit in jail for lesser crimes, North Carolina must stop focusing on suggested bond amounts for particular crimes and begin focusing on each case and each defendant objectively and individually. This change in focus would allow North Carolina magistrates and judges to pay attention to not only the criminal allegation but also to other significant factors, such as whether the defendant is a flight risk or a danger to themselves or the community, and, importantly, to the defendant's financial ability to post money bail. This reform would also allow the court system to balance its interest in securing the defendant's attendance and the defendant's own interest of pretrial release.
Not only does unnecessary pretrial detention adversely affect the defendant, it is also financially burdensome on the state and its taxpayers. Pretrial detention is both costly and inefficient – especially when alternative options like properly managed pretrial release programs can ensure public safety and the appearance of defendants in court. Changing how North Carolina assesses who is released and who has a bond set is just the beginning to reforming the bail bond system.
In addition to changing how the system initially decides which defendants have a bond set and which are detained, North Carolina should also implement alternatives to monetary bail or incarceration, such as pretrial release programs.
Some North Carolina counties, such as Wake, Forsyth, and Alexander, already use pretrial release programs.  One of these programs is run by a nonprofit called ReEntry, Inc. ReEntry's goal is to divert all appropriate incarcerated individuals from pretrial detention to supervision in its pretrial release program. This not only saves the County the cost of pretrial detention, it also assures community safety by strict monitoring of released defendants, and allows those defendants to move on with their lives while waiting for their case to be resolved.
ReEntry, like other pretrial service programs, uses a risk assessment tool in order to make recommendations to judicial officials. The judge then has the final decision as to whether the defendant can be released into the program. Of course, while risk-assessment is significantly fairer to indigent defendants than is money bail, these tools must be used with care. Judicial officials must make sure that the pretrial service units that use them are qualified and trained, and that the motivation is there to make sure everyone is treated with fairness and consistency.
ReEntry is one of around thirty such programs currently operating in North Carolina. All of these pretrial release programs have varying degrees and methods of supervision. Some of these methods include requiring the defendant to check in physically or by telephone, to complete drug tests, and to be subjected to mandatory electronic monitoring. Ultimately, if risk assessment and pretrial release programs are to be accepted in North Carolina, these programs will need to be standardized so that all North Carolinians are treated equally. The goal of diverting qualifying (non-dangerous) defendants from jail when they would not otherwise not be able to afford bond is admirable and should be pursued in North Carolina.
In North Carolina, as elsewhere in the nation, there is growing recognition that money bail unfairly penalizes indigent defendants by incarcerating them for months or even years to wait for their trial while comparable wealthy defendants walk free as they await trial. The way money bail is currently decided by North Carolina trial courts violates both the United States and North Carolina Constitutions. With everyone from the right leaning former New Jersey Governor Chris Christie to the left leaning California Senator Kamala Harris recognizing the serious deficiencies in the money bail system and advocating for reform, the time is right for North Carolina officials to act.
 Brutalism, OXFORD LIVING DICTIONARIES, https://en.oxforddictionaries.com/definition/brutalism (last visited May 22, 2018) (“A stark style of functionalist architecture, especially of the 1950s and 1960s, characterized by the use of steel and concrete in massive blocks.”).
 Pretrial Release Policies in the Eighteenth Judicial District, http://www.nccourts.org/Courts/CRS/Policies/LocalRules/Documents/1598.pdf (last visited May 22, 2018).
 N.C. GEN. STAT. §14-159.13 (2017) (second degree trespass), N.C. GEN. STAT. §14-444 (2017) (intoxicated and disruptive) and N.C. GEN. STAT. §14-160 (2017) (injury to personal property).
 UNCG Police Help Nab 2 Men in Connection to Shooting Incident at Convenience Store, NEWS & RECORD, http://www.greensboro.com/news/crime/uncg-police-help-nab-men-in-connection-to-shooting-incident/article_c3649bfe-4c67-5e25-abff-bc05ea1d376a.html (last visited May 22, 2018).
 N.C. GEN. STAT. § 15A-534(b) (2017) (“The judicial official in granting pretrial release must impose [non-monetary bail conditions] unless he determines that such release will not reasonably assure the appearance of the defendant as required; will pose a danger of injury to any person; or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses. . . . and must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge pursuant to G.S. 15A-535(a).”).
 N.C. GEN. STAT. § 14-34.1 makes it a Class E felony to discharge a firearm into occupied property. The offense is elevated to a Class D felony, requiring a mandatory active prison sentence, if the property is an occupied store such as is charged in this case.
 Administrative Office of the Courts Form AOC-CR-226, http://www.nccourts.org/Forms/Documents/687.pdf (last visited May 22, 2018).
 Bail, Fines, and Punishments, N.C. Const. art. I, § 27 (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”).
 United States v. Salerno, 481 U.S. 739, 755 (1987).
 Bearden v. Georgia, 461 U.S. 660, 665 (1983).
 Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc).
 See, e.g., Rodriguez v. Providence Cmty. Corr., Inc., 155 F. Supp. 3d 758, 768 (M.D. Tenn. 2015) (granting class-wide preliminary injunction based on “the equal protection principles articulated by Pugh and its progeny”); Pierce v. City of Velda City, 2015 WL 10013006, at *1 (E.D. Mo. 2015) (“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”); see also Williams v. Farrior, 626 F. Supp. 983, 985 (S.D. Miss. 1986) (“For the purposes of the Fourteenth Amendment's Equal Protection Clause, it is clear that a bail system which allows only monetary bail and does not provide for any meaningful consideration of other possible alternatives for indigent pretrial detainees infringes on both equal protection and due process requirements.”).
 Jones v. City of Clanton, No. 215CV34-MHT, 2015 WL 5387219, at *2 (M.D. Ala. Sept. 14, 2015), https://cases.justia.com/federal/district-courts/alabama/almdce/2:2015cv00034/56330/76/0.pdf?ts=1442308683 (last visited May 22, 2018).
 42 U.S.C. § 1983, Civil action for deprivation of rights, allows people to sue the government for alleged civil rights violations. The statute applies when someone acting “under color of” state-level or local law is alleged to have deprived a person of rights created by the U.S. Constitution or federal statutes.
 Odonnell v. Harris Cty., 882 F.3d 528, 534-35 (5th Cir. 2018).
 Id at 536.
 Id. at 537.
 Id. at 540 (quoting Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).
 Id. at 543.
 Id. (quoting the district court).
 Id. (quoting Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997)).
 Id. (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973)).
 Id. at 545.
 See State v. Thompson, 349 N.C. 483, 499 (1998).
 Id. at 496.
 Id. at 498.
 Id. (quoting Stack v. Boyle, 342 U.S. 1, 4 (1951)).
 Id. at 499-500 (quoting Coffin v. United States, 156 U.S. 432 (1895)).
 Id. at 500.
 Id. at 503.
 The system of bail used in North Carolina originated in England in the thirteenth century where a sheriff was required to consider the gravity of the offense charged, the weight of the evidence, and the character of the defendant prior to considering bail. If bail was made available, a friend or relative of the accused would be required to promise to forfeit a specified sum of money to the court if the defendant failed to appear. Loran L. Lewis, Bail Bond Reform in Allegheny County, 5 JURIS: DUQUESNE L. SCH. NEWSMAGAZINE 10 (May, 1972), http://www.duq.edu/Documents/juris/_pdf/Vol05No4.pdf.
 Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. REV. 1399 (2017).
 See note 2, supra.
 For example, a study in California's Santa Clara County found that pretrial service supervision cost less than 1/10 the cost of pretrial detention in jail ($15.00 per day vs. $159.00 per day in jail). Criminal Justice Policy Program, California Pretrial Reform: The Next Step in Realignment 7 (Oct. 2017), http://cjpp.law.harvard.edu/assets/CA-Pretrial-Reform-The-Next-Step-in-Realignment-FINAL.pdf.
 Brent D. Troxell, Understanding Pretrial Programs' Success and Their Effects on County Jails (March 14, 2012), http://www.mpa.unc.edu/sites/www.mpa.unc.edu/files/Brent%20Troxell.pdf.
 Steps in Being Released to Pretrial Release, http://wwwcache.wral.com/asset/news/state/nccapitol/2012/06/12/11200610/pretrial_Services_procedures_doc.pdf (Last visited April 10, 2018).
 Risk-assessment tools use scientific algorithms to make predictions about the risk posed by individual defendants. See, e.g., John Clark, Upgrading North Carolina's Bail System: A Balanced Approach to Pretrial Justice Using Legal and Evidence-Based Practices 19 (Aug., 15 2017).
 Troxell, supra note 60.
 Chris Christie, Save Jail for the Dangerous (Apr. 27, 2015), https://www.brennancenter.org/analysis/save-jail-dangerous.
 Sophie Tatum, Kamala Harris, Rand Paul Back Fixes to Bail Process (July 20, 2017), https://www.cnn.com/2017/07/20/politics/criminal-justice-reform-bills-kamala-harris/index.html (“‘Our justice system was designed with a promise: to treat all people equally,' Harris was quoted saying in a news release. ‘Yet more than 450,000 Americans sit in jail today awaiting trial and many of them cannot afford “money bail.” In our country, whether you stay in jail or not is wholly determined by whether you're wealthy or not -- and that's wrong.'”)