Judge Doretta Walker sounds upbeat as she runs through the docket in the small courtroom at the Durham County Detention Facility. Men and women making their first appearances file onto a bench, their backs pressed against glass that separates them from vacant rows where bail agents, family members, and observers would sit were the courtroom not nearly empty.
The details of each case are read aloud: the charges the defendant is facing, previous convictions, failures to appear in court. Then Walker and an attorney from the Public Defender’s office begin to negotiate the price of the accused’s freedom, like some backward, drab version of The Price is Right.
James Stanley, the attorney, is trying to get unsecured bonds assigned to as many of the defendants as he can, even if this means asking Walker to assign them a higher dollar amount. Unlike secured bonds, unsecured bonds require no money up front to get out of jail, only that the defendant pay if he or she fails to appear in court. Stanley begins each request by reminding Walker that the defendant is innocent until proven guilty. In most cases, he says the defendant cannot afford the bail that has been assigned.
Most of the people in this courtroom last Wednesday were already being held on low bonds—$1,500 or $3,000—meaning they’ve been unable to pull together a couple hundred dollars to pay the fee of a bail agent. Unless they can find the money or their bonds get reduced, they’ll stay in jail, even though they haven’t yet been convicted of the charges they face.
“The bail system,” says a deputy sitting in the back of a courtroom, pausing as he chooses his words, “is weird.”
It’s a system known for decades to include racial and economic inequities. And with about a quarter of the people held at the Durham jail in 2016 there on bonds of $5,000 or less, local activists are calling for Durham to join the growing number of jurisdictions nationwide—from Alaska to New Jersey to Maryland, with efforts also underway in California, Connecticut, and New York—that have eliminated or significantly restricted the use of money bail.
Southerners on New Ground is leading the charge. Last year, the queer liberation organization bailed out twenty-three women from the Durham jail for Mother’s Day and in celebration of Black August.
“What [cash bail] does is create a system where often the people with the least ability to pay, charged with the most minor offenses, are stuck in jail,” says Serena Sebring, a regional organizing manager with SONG.
On Tuesday, the group is teaming up with the People’s Alliance and the Durham Human Relations Commission, which recommended ending money bail in a report on conditions at the jail last year, to host Free From Fear, a forum focusing on bail reform as a means of making Durham’s criminal justice system more equitable.
The three groups are studying how money bail is affecting Durham residents, the laws surrounding the practice, and how alternatives could be put into place. SONG has collected about five hundred signatures on a petition to end money bail and will launch a campaign pushing for a change next month.
Studies across the country have shown that the bail system has the biggest impact on the poor and people of color, influencing the outcomes of their cases all the way to sentencing. Defendants held before their trial, rather than released, are more likely to plead guilty, be convicted, receive a prison sentence, and face longer sentences, studies suggest.
One study of more than thirty thousand cases across the country found that black defendants were 66 percent and Hispanic defendants 91 percent more likely to be detained pretrial than white defendants. This time in jail can affect their employment, bills, and child custody.
Inequities in Durham’s system have been known for at least thirty years. Local judges, responding to critical media reports, commissioned researchers from UNC-Chapel Hill’s Institute of Government to study the issue. Their 1987 report on more than nine hundred cases found that, while black people were assigned lower secured bonds than their white counterparts, they were more likely to be given secured bonds, were less likely to be released pretrial, and spent more time in detention.
While it’s difficult to say definitively how many people are in the Durham jail because of an inability to post bond, hundreds of people are held on low bonds—and this reality is disproportionately affecting black people, who made up about 38 percent of Durham’s population but more than 80 percent of the jail population in 2015, according to the Vera Institute.
Delvin Davis, a senior research analyst at the Center for Responsible Lending, analyzed data on every person held at the jail in 2016. Of the 7,187 people detained that year, 4,357 were held pretrial. Of that group, 46 percent had a money bond, including 1,732—about 40 percent of the pretrial population and 24 percent of the total population—with bonds of $5,000 or less. A little less than 5 percent of the pretrial population had a bond of $1,000 or less.
The INDY looked at the full jail population for January 29, which included five hundred detainees. This analysis produced a somewhat lower number of people held on bonds of $5,000 or less—about 15 percent of the total population. A majority of those were people of color.
According to a 2016–17 annual report from the Sheriff’s Office, it costs $125.59 per day to house one inmate. Which means that, if the nineteen-year-old who has been held since January 5 on a $3,500 bond is detained until his March 6 court date, the county will have spent $7,500—more than double his bond—to house him.
Until the very end of her fifty-one-day confinement in the Durham County jail in 2012, Andrea Hudson held out hope that her bond would somehow be lowered. There was no other way, with her out of work, that her two children would be able to pull the money together.
Besides, they’d been caught off-guard. Hudson had left for work one day and never returned. An officer pulled her over for a traffic violation, found outstanding warrants for her arrest on charges of fraud and exploiting an elderly person, and took her to jail, where she spent all but one hour every other day confined to a cell.
Hudson’s bond was initially set at $10,000, but she says a judge felt that was too low and raised it to $30,000. Pulling together the roughly 10 percent—about $3,000—she needed to pay a bail agent to front the rest was impossible. Her hope ran out.
She called a friend and told her to sell her truck for bail money. The friend replied that she had been waiting in the lobby of the detention center for hours.
Hudson was free to go, but no one had told her.
Hudson, who says the charges stemmed from mistaken identity, had told her attorney she would consider pleading guilty if it meant she would get out. Although she says she never went to court—other than a first appearance—court records show a guilty plea was entered for some of the charges and a deal was struck for her release. The rest of the charges were expunged.
Hudson now works for the Southern Coalition for Social Justice, which plans to launch a bail fund this month that will use donations to get people out of the Durham jail, and with a program called Participatory Defense that helps defendants navigate the criminal justice system.
“I had wanted to be a probation officer,” she says. “I don’t want to be a probation officer anymore. I don’t want to oppress people who are already oppressed.”
Chuck Manning has a similar tale of incarceration leading to activism. He says he “knew from the jump” of his detention at the Durham jail that he would never make his $500,000 bond. He’d been charged with an assault he says he didn’t commit and that was eventually dismissed in 2015. While Sheriff’s Office records indicate that Manning spent four months in jail, he says it was actually fourteen.
“Those were dark times, really dark times. I literally gave up on myself, I’ll be honest,” says Manning, who now does community outreach for a city program that looks at barriers faced by formerly incarcerated residents. “I had a whole lot that was going on positive, and for that to happen, it was devastating.”
He didn’t know anyone with fifty grand, and the longer he stayed in jail, the more money his family had to spend to buy snacks and other creature comforts not provided by the jail, all without his income.
It’s an experience he thinks someone who hasn’t been in jail couldn’t fully understand. It doesn’t sit right with him that while millions of dollars are spent on policing and jails, the county pays to house inmates, and inmates’ families pay to support them inside, mental health and substance abuse programs are underfunded.
“At the end of the day, it’s a setup, and it’s set up to prey on the less fortunate and minorities,” he says.
Reformers have been raising concerns about the bail system for at least five decades. In fact, it was a North Carolina congressman, Sam Ervin, who introduced legislation saying that “all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges … when detention serves neither the ends of justice nor the public interest.”
Following the passage of the 1966 Bail Reform Act, pretrial detention dropped in cities across the country, and money bail became a final resort in federal courts.
But the tide turned with Nixon’s War on Crime and Reagan’s War on Drugs. The Bail Reform Act became a scapegoat in tough-on-crime rhetoric, and the law was amended in 1984 to allow preventative detention. By then, according to the Southern Poverty Law Center, nearly three-dozen states had passed laws stating that the danger a defendant may pose should be a pretrial-release consideration.
Under North Carolina law, judicial officials can release arrestees with a written promise to appear in court, release them into the custody of another person or organization, assign an unsecured bond, require electronic monitoring as a condition of release, or assign a secured bond.
State statutes instruct judges to choose electronic monitoring or a secured bond if the other options don’t ensure that the defendant won’t skip court, harm another person, or try to sabotage the case. Unlike most states, North Carolina law doesn’t stipulate that defendants have a right to bail. (Advocates say this could actually make it easier to stop imposing bail, as it isn’t required by right.)
It’s up to judges to determine more specific bond guidelines in their jurisdictions. Durham County’s policy reiterates that the least restrictive nonmonetary option should be used, while ensuring court appearances and public safety. The policy was written in 2011 by Senior Resident Superior Court Judge Orlando Hudson and now-state Representative Marcia Morey, who was then the county’s chief district court judge, and lays out suggested amounts when a secured bond is employed. The policy recommends that people charged with low-level misdemeanors be released on a written promise to appear. Low-level felonies range from a $1,000 to $5,000 suggested bond.
“A magistrate or judge has total discretion to make any conditions. The fallback is if you go with the suggested guideline, that’s kind of a safety net,” Morey says.
Morey says judges must balance a person’s presumed innocence with the threat he or she poses to the public, and they may feel pressure to impose a more severe bond on a potentially dangerous person.
Indeed, the Pretrial Justice Institute, commissioned by the North Carolina Commission on the Administration of Law and Justice to look at North Carolina’s pretrial system, says judges in this state “rely heavily” on secured bonds.
Depending on whom you ask, the level of discretion afforded to judicial officials is what can make the bail system more fair, compassionate, and responsive—or the reason it’s unfair, biased, and inconsistent.
“You have people making decisions, and science clearly indicates we all are subject to implicit bias,” says James Williams, a longtime public defender and board member for the North Carolina Commission on Racial and Ethnic Disparities in the Criminal Justice System. “So decisions related to who gets out, who stays, whose bond is set high, whose bond is set low, whom we view as a threat to a society, can all be impacted by implicit bias.”
Some jurisdictions have employed risk-assessment tools to try to make pretrial decisions more objective, but even those have been criticized as perpetuating racial disparities. (SONG is advocating for a needs-centered assessment.)
Durham County uses a risk-assessment score to recommend pretrial-release conditions for people charged with some offenses. The county is one of about forty that offers a pretrial-release program. In the last fiscal year, 94 percent of the program’s clients—most of whom are released on unsecured bond—did not miss court, and 93 percent were not charged with new crimes.
Mecklenburg County, considered to have the state’s most progressive approach to pretrial release, suggests nonmonetary release conditions for more offenses than Durham does, up to nonviolent felonies. Wake County’s policy generally calls for higher bonds than Durham’s.
Proponents of the cash-bail system say the money serves as a deterrent to skipping court. Bail agents are an “effective pretrial-release program that costs taxpayers nothing,” the North Carolina Bail Agents Association’s website says. According to the association, which did not respond to questions by press time, North Carolina bail agents return 98 percent of bonded-out defendants to court.
However, one study by the nonprofit Pretrial Justice Institute found no significant differences in how often people released with monetary and nonmonetary conditions return to court or commit new crimes while on pretrial release.
The bail system requires balancing what can be competing interests: the idea that people are presumed innocent, and that some people may be too much of a flight risk or a danger to society to be released before their trial.
But critics say that balance is off.
“When you’re talking about pretrial, there’s not a decision made yet whether the person has done anything wrong,” says Williams. “That is something that needs to be given, I think, much greater weight than it is now. No matter what you do, you’re not going to have a perfect system, but you can’t keep everybody charged with an offense in jail, either.”
Williams says the fix is simple: judges need to follow guidance from state law that secured bond should be a last resort, and there should be consequences if they don’t. But until money is out of the equation, the “the system is going to be, I’ll just say, flawed. I could use another f-word.”
Morey says Durham’s bond guidelines and pretrial-release program help mitigate the “inherent unfairness” of money bail.
“The hard thing is when you then get into how serious is the offense and the safety of the community, and you always balance that with the idea that someone is innocent until proven guilty,” she says. “It will never be perfect.”
Sheriff Mike Andrews supports releasing people being held on low bonds with electronic monitoring and an amnesty week, in which individuals with outstanding orders for their arrest because they didn’t come to court for traffic or misdemeanor charges can schedule new court dates and have those orders dismissed. Via a spokesperson, he said he’s pushed judicial officials for these initiatives for two years to no avail.
Although prosecutors can only suggest a bond amount to a judge, District Attorney Roger Echols says he could envision a policy that only asks for written promises or unsecured bonds for certain charges. But Echols says more needs to be done to study the problem, and he’s been going through jail data himself to get a better sense of how the current system is playing out.
It’s likely that incremental steps would have to be taken to reform that system—for example, eliminating cash bail for misdemeanors and low-level felonies. But reformers believe Durham is ready to tackle the issue.
“I think if any city is ready for the conversation, it’s Durham,” says Josephine Kerr, an assistant district attorney and cochair of the People’s Alliance Race Equity Team. “I don’t know about the end of it. I don’t know how that looks, but I know that Durham is definitely the city for the conversation.”