Former Chief Justice Mark Martin’s Commission on the Administration of Law and Justice issued a report in 2017 encouraging bail reform in North Carolina, and a number of districts have reformed their bail practices in recent years. Professor Jessica Smith and the UNC School of Government’s Criminal Justice Innovation Lab have published a number of helpful resources on the topic.
As Professor Smith has written, a number of criticisms have been levied against the traditional bail system. One is that it does not promote public safety. In North Carolina, defendants are most commonly released on secured bonds, which are not tied to their conduct upon release and are forfeited only if they fail to appear in court. Moreover, numerous studies indicate pretrial detention increases the likelihood that otherwise low risk individuals who are unable to make bond will commit additional crimes upon release. Another criticism is that it that traditional bail practices are discriminatory. Wealthy defendants can purchase their way out of custody while similarly-situated defendants without the money cannot. Because of racial wealth disparities, Black defendants are significantly overrepresented in the pretrial detainee population.
Critics of the traditional bail system also contend it is fundamentally unfair, because whether a person remains in custody pretrial is largely a function of whether they can afford bond. These critics have come from across the political spectrum and include conservative commentators who regard the present system as a “perversion of the traditional justice system and our founding principles, which requires that punishment should occur after a conviction.” Others have noted that pretrial detention inhibits defendants’ ability to aid in their own defense. Studies have determined those detained pretrial are more likely to be convicted and more likely to receive active and longer sentences than those who are not. Many critics of the traditional bail system also contend it wasteful and costly. Nearly half a million people are detained pretrial on any given day in America at a cost to taxpayers of approximately $14 billion a year. A number of jurisdictions across North Carolina have implemented bail reform in recent years, including Districts 2 and 21. These efforts are ongoing and Professor Smith is tracking their results. Studies on the impact of these changes have been disrupted to some degree by the COVID-19 pandemic, but the early results are promising.