Setting bail not as easy as it may seem

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  • Bonds are more complicated than most people realize.
    Bonds are more complicated than most people realize.
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    America’s criminal justice system is in the midst of what researchers call the “third wave” of bail reform.
    The “first wave” of bail reform coincided with the Civil Rights Movement, with some government officials denouncing a system that sent poor citizens to jail for their inability to post bond, while enabling alleged criminals who had the financial means to gain their freedom.
    Those de-incarceration efforts were met by a “second wave” of bail reform that spawned from the growing concern for public safety in the 1970s and ’80s. During this time, the federal government and many states passed laws authorizing judges to detain defendants in the interest of community safety, which led to overcrowded jails across the country.
    Essentially, monetary bail was used to assure public safety, with some judges imposing bonds that defendants could not possibly pay, thereby incarcerating that person – even though they were presumptively innocent and had never been found to pose a danger to anyone.
    The ongoing “third wave” of bail reform is driven by a growing consensus across the political spectrum that the decades-long expansion of the prison–industrial complex is barbaric, counterproductive and expensive. In response, the State of New Jersey enacted a law in 2017 that eliminated monetary bail in most criminal cases and established a public safety assessment score that helps a judge determine whether to release or detain a defendant.
    As was the case with the prior waves of reform, current efforts to improve the criminal justice system are not without flaws. However, the majority of judges today agree that bail is not meant to be a punishment.
    “I don’t punish anyone; that’s not my job,” a local magistrate judge told the Cherokee Scout. “My job is to try and protect the public, and to try and assure [the defendant’s] appearance in court.”

Bail upsets residents
    At community meetings held throughout Cherokee County over the last year, local residents raised concerns about suspects being released from police custody merely hours after their arrest. Some residents directed anger at municipal lawmakers, while others blamed police.
    Some law enforcement officials even outright claimed local magistrate judges were not following state guidelines for setting bond.
    The Scout spoke with a few magistrate judges last week to understand the situation from their point of view. They asked for their names to be left out of the report because they were merely sharing their opinions about the matter.
    The magistrates stressed that the state statute is a guideline for setting bond. It would be “impractical” to set a hard-and-fast rule regarding bail because every circumstance and every defendant is different.
    “You can’t recipe how a bond works because there are so many variables,” one magistrate said.
    Chapter 15A of the N.C. General Statutes governs criminal procedure throughout the state. Additionally, the Senior Resident Superior Court Judge for each judicial district issues recommended policies regarding bail.
    The bail and pretrial release policy for District 30A – which covers Cherokee, Clay, Graham, Macon and Swain counties – is essentially a synopsis of the guidelines set forth in the state’s general statute. The local policy, which is publicly available online, also includes recommendations and guidance for setting bond, along with suggested bail amounts for various types of felonies and misdemeanors.
    “The purpose of pretrial release is to impose the least restrictive conditions that will reasonably assure a defendant’s appearance in court,” the document says. “It is recognized that any release on bail will create the risks that the accused will flee, commit another crime while out on bail, destroy evidence or intimidate witnesses against him. These are calculated and accepted risks that must be taken as the price of our justice system. … Bail may not be used as punishment.”

Local guidelines
    The document further states that magistrates must release a defendant on an unsecured bond unless it can be determined that the arrestee is a flight risk, a danger to the community or likely to destroy evidence, induce perjury or intimidate a witness.
    “You can usually tell whether a defendant is just trying to get out the door and doesn’t plan to come back to court,” a magistrate said. “But 90 percent of the people I deal with live here, and you couldn’t run them out of town with a shotgun. So there’s really not a lot of reasons to lock them up.
    “Why make the county feed them and take them to the doctor? You put them in jail, and those bills become the county’s.”
    The local guidelines also list various factors a magistrate must consider in every case, such as the defendant’s character, mental condition, length of residence in the county, prior history of convictions and whether they were on pretrial release for another charge at the time of the most recent arrest.
    “I make decisions based on what I believe is the right thing to do at the time,” a magistrate said. “If you’re not doing what you think is right, you’re going to have a lot of sleepless nights. My general outlook is to treat defendants the way I would want my mother to be treated if she was in that position.”
    At a community meeting in Andrews on Oct. 29, local officials advised angry residents to call state legislators regarding the general statute if they truly feel the law is too lenient on arrestees. Magistrates interviewed for this report echoed that advice, but they also expressed doubt that anything would change because the law is largely “grey area” guidelines that allows judges to make decisions on a case-by-case basis.
    “I might set more secure bonds than the next judge,” a magistrate said. “The guidelines are not set in stone.
    “And people sometimes don’t understand that defendants are innocent until proven guilty.”