Report shows Orange County bail and bond system unjustly penalizes low-income citizens

A report released earlier this month said Orange County’s system of bail and pretrial detention is unjust and disproportionately penalizes people who are unable to pay, especially people of color.

When a person is arrested and charged, law enforcement brings them to an appointed official called a magistrate, who sets the bail and bond requirement. If they can't pay the amount, they go to jail before going before the judge the next day.

But in March 2019, N.C. Superior Court Judge Carl Fox reformed the pretrial policy in Orange County so that a written promise to appear would be the first option before a cash bond. 

However, the report by the Orange County Bail/Bond Justice Project states that during a year of courtroom observations, the written promise was only used in 17 percent of the magistrates’ cases and 38 percent of the judges’ cases.

The report says a secured bond, or requiring a certain amount of money for a person to get out of jail, was set by the magistrates 72.5 percent of the time and in 45 percent of the cases for judges.

When a defendant is unable to pay their secured bond, they are held in jail before their trial has started and throughout the trial.

The report states that people who are sitting in jail can lose their jobs, homes and custody of children because they are unable to attend to their responsibilities. This can have lingering effects on the defendants' lives, the report said.

Kimberly Brewer, chairperson of the Orange County Bail/Bond Justice Project, said this is a moral issue that needs to be addressed.

“They've just been charged with a crime; they have not been found guilty,” Brewer said. “In the eyes of the law, these people are assumed innocent until proven guilty, and yet many who are in jail are there just because they don’t have the resources to pay their bail.”  

According to the report, Orange County's poverty rate is 12.8 percent, but 82 percent of the cases going through the court were people who were considered indigent, or unable to afford an attorney. Only 21 percent of indigent defenders were able to post bail before they appeared in front of the judge.

Carrboro Town Council member Susan Romaine said among the number of indigent defenders jailed pretrial in 2018, a disproportionate amount were people of color.

“I think that the report is basically showing that our current system of bail and pretrial detention in Orange County is unjustly penalizing people who are poor and especially, it’s penalizing people of color,” Romaine said.

Caitlin Fenhagen, criminal justice resource director for Orange County, said while there is still work to be done, Orange County has already instituted several bail/bond policy reforms. 

The court holds hearings Monday through Friday at 2 p.m. so sufficient evidence can be gathered about the people in custody. They place a public defender and district attorney at those hearings to advocate.

“Most importantly, we have a pretrial services program that has been in operation for many, many years, but it has recently, in the last five years, really changed its practices and interviews every single person and does both a risk and need assessment,” Fenhagen said.

She said that assessment is done within 24 hours of being detained. 

The information from the assessment provides the district attorney and public defender stakeholders with relevant information to have a more meaningful review of the defendants. 

“We already see some good practices in Orange County, but even with those reforms, we still need a fundamental reform of the system to make it more just,” Brewer said.

When making a recommendation for bail, judges and magistrates are supposed to follow the guidelines and requirements set by state law and district policy, but they're allowed to use their own discretion. 

The data in the report show a wide variation for the percentage of cases where judges imposed a written promise to appear and secure bonds.

Brewer said if the laws and policies were followed in a consistent way, Orange County would have a more just and fair bail system.

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