Bill would curb pretrial release programs
Posted June 13, 2012
Updated September 23, 2015
Raleigh, N.C. — A bill that would limit when publicly-funded pretrial release programs could help defendants get out of jail is making its way through the General Assembly despite objections from some judges and sheriffs.
The measure passed a House Judiciary subcommittee Wednesday morning.
It pits backers of the program – including many judges and sheriffs – against bail bondsmen, who say the taxpayer-supported programs are cutting into their business and not doing as good of a job.
After someone is arrested, a magistrate sets conditions of release that can range from a written promise to appear – a defendant signs their name and pledges to come to court – to a secured bond, in which money or property is pledged to ensure a defendant shows up.
Defendants who are wealthy enough can post their own bond or hire a bail bondsman to do it for a percentage of the cost.
First offenders, people with jobs and stable ties to the community and others deemed less of a risk to re-offend or flee are able to bypass bond and be put into the pretrial release program.
Programs screen defendants
Not every county has a pretrial program, but they exist in most of the state's urban areas including Wake, Durham and Mecklenburg counties. Typically, they are run by nonprofit agencies that contract with the county government and focus on lower-income defendants. Exactly how they function is different from county-to-county, but all conduct background checks on suspects that often include interviews with the alleged offenders, their families and victims.
Those who don't meet those criteria typically have to wait for a bail hearing the day after their arrest. It's at that hearing pretrial programs deliver reports on each defendant to the court and recommend whether they stay in jail or are released. Senate Bill 756 would keep pretrial programs from interviewing those defendants and making such recommendations for 48 hours.
Backers of pretrial programs say the measure would handcuff the courts' ability to identify when defendants should be released prior to trial, cost taxpayers money and unduly punish people not yet convicted of a crime.
"Any delay for us amounts to more people in my jail," said Wake County Sheriff Donnie Harrison. "The pretrial program helps us with that."
Greensboro Police Chief Ken Miller told the committee that the measure would "break" the system of cooperation between the police, judges and prosecutors.
"What it will do is drive up crime in our community," Miller told the committee.
But bail bondsmen and their allies, including some district attorneys, say pretrial programs aren't as good at screening for potential risk factors as they should be. To boot, bondsmen say, pretrial programs take money out of their pocket.
"They're in direct competition with us," said Mark Black, a lawyer and lobbyists for the N.C. Bail Agents Association. "They're getting folks out who are bondable."
Rep. Mike Hager, R-Rutherford, told the committee Tuesday that his objective was to ensure people who might be able to afford private bonds are not entered into pretrial programs. He did acknowledge that some people would not be able to post bond no matter what.
"This legislation would really affect the indigent, the poor people who do not have money to post bond," said Chuck Johnson, who heads Wake County's pretrial program, which is run by ReEntry Incorporated.
Every weekday, Johnson said, his agency will screen the roughly 60 defendants who are due to come before the Wake County Court at 2 p.m. for their bail hearings. Of those, many won't meet the screening criteria because their alleged crime is too violent, they don't have an address or are otherwise unqualified. Those with a history of missing court dates are passed over, for example.
"First and foremost, we're concerned with public safety," Johnson said. While his program will monitor anyone the court orders into pretrial release, he said, his staff interviews and recommends those who pose the least risk to society.
On a typical day in Wake County, that group of candidates for pretrial release amounts to 5 to 10 people, many of whom couldn't afford to pay the $150 fee bondsmen would charge for a $1,000 bond.
Of the 1,357 defendants Wake County's pretrial program tracked last year, Johnson said, about 90 percent made their court appearances with no problem.
The N.C. Sheriffs Association has not taken a position on the bill. But Harrison said lawmakers should leave the pretrial program alone.
"I like the way it is," Harrison said. It costs $70 or more per day to keep an individual in jail. For the 1,357 people that Wake County released to pretrial programs last year, an extra two days in jail would have cost roughly taxpayers $190,000, compared to $1.55 per day each spent on pretrial release.
Rep. Jennifer Weiss, D-Wake, called the measure an "unfunded mandate" on counties which would foot the bill to house those suspects.
During committee debate last week, some members expressed skepticism that bondsmen really needed 48 hours to assess the risk that an inmate posed.
"I think 24 hours is reasonable," said Rep. George Cleveland, R-Onslow.
Opponents of the measure worry that defendants kept in jail for two extra days could end up losing their jobs unnecessarily when they miss work..
Public defenders and representatives of the mental health community also oppose the bill.
On the bondsman's behalf, Black points to a publication by the Department of Insurance that estimated the bail bondsmen save the state $2 billion a year. Lawmakers, he said, should embrace the business rather than allow government-funded competition.
"If we don't return 98 percent of our guys, we'll be out of business," said Black, the bail agents' lobbyist.
"There's no reason to keep those people in jail who are not going to be able to use the resources of a bail bondsman anyway," said Rep. Joe Hackney, D-Orange. He has been working to modify the bill in committee but said he would prefer to see it killed.
Outside the program, bail bondsmen bear risk
SB 756 would limit the conditions under which pretrial programs could take custody of alleged offenders. The most hotly debated feature of the bill would prohibit pretrial service officials from interviewing defendants for 48 hours after their arrest.
"This is simply a bill to allow bail bondsmen to get more business and it deprives judges of information," Marcia Morey, the chief district court judge in Durham County. Without Durham's pretrial program, Morey said, she wouldn't know whether people had a job, owned a home or had risk factors that should increase their bail.
"The information pretrial release gives us is so important to make reasoned decisions," she said.
But others who work in the court system say pretrial programs aren't as effective as they could be.
"I believe we have individuals who are being put into this program who should not be. That's happening because the proper screening is not taking place," said Phil Berger Jr., the district attorney in Rockingham County and son of the state Senate leader. He cited the case of a person he recently charged with a "fairly serious sex offense," who was released to his county's pretrial program and later picked up by police for selling drugs.
The 48-hour waiting period, he said, would "allow pretrial service to more effectively screen these defendants. It also enables individuals to take advantage of the bond process."
There are 1,540 individuals with one of three different of bail-bonds-related licenses in North Carolina. They are regulated by the Department of Insurance and their businesses tend to cluster around courthouses.
Berger said he prefers to see private bondsmen take the chance somebody might not show up for a court date.
"With pretrial release, the taxpayers are essentially subsidizing and posting the bond for this guy," Berger said.
Sgt. Robin Abbott with the Pitt County Sheriffs Office says his department uses the program differently from many others. In Pitt County, he said, the pretrial release program tracks those who qualify for release but are among the most likely to re-offend. He said the program ensures that his county's already over-crowded jail doesn't become dangerously full.
"A 48 hour delay would bring real complications to us," Abbott said.
Lobbyists for and agents who work in the bail bonds industry agree. They have been pushing SB 756 saying it would be boon to taxpayers and bondsmen.
"In six years, I've paid two forfeitures," said Donny Bradley, owner of DOC Bail Bonding in Statesville, which operates in nine counties. He acknowledges that the bill would probably mean more business for bondsmen. In return for that business, he said, private bail agents do a better job of keeping track of offenders.
"There's no reform inside a jail and there's definitely no reform in pretrial release," Bradley said. His business, Bradley said, works to both make sure defendants show up on time and connects them to drug treatment or other services.
But Johnson said that pretrial programs are the only entity in the court system that regularly monitors defendants. Often, judges will order defendants into pretrial release who weren't originally identified as candidates for the program just to make sure someone keeps tabs on them until their court dates.
"We don't compete (with bondsmen) at all," he said.
Bondsmen among legislators
Opponents of the measure say they have been confounded as to why the bill has gotten so far. The Senate passed the measure last year to little fanfare. This year, a House committee has scrutinized the bill.
While the bail bonds industry's political action committee gave $28,064.80 to lawmakers last year, opponents of S 756 suggest their political influence may not entirely rely on traditional lobbying. Both Sen. Tom Apodaca, R-Henderson, chairman of the powerful Senate Rules Committee, and Rep. Justin Burr, R-Stanly, who is chairman or vice chairman of several House committees, are bail bondsmen.
"I'm not involved in it," Burr said of the bill, adding that he won't talk to fellow lawmakers about matters related to bail bonds.
Apodaca recused himself from voting when the measure first passed the Senate last year.
"I didn't even know it was being heard over there," he said. He added, "Right now I don't have that great of a relationship with the House," saying that his blessing on a bill might not do it much good.
Now that the measure has passed committee, it will be heard by the full House. If successful there, it would return to the Senate for approval.