New Policy Targets Unnecessary Bail in Orange County Courts

Advocates for criminal justice reform have long argued that defendants are frequently overburdened by unnecessary bail. High bail often results in defendants having to stay in jail, without having been convicted of any crime, simply because they lack the ability to pay.

Now, after years of work by local activists and stakeholders in the criminal justice system, Orange County is taking steps to reduce that burden.

On January 19, Orange County Superior Court Judge Allen Baddour and Chief District Court Judge Samantha Cabe issued a new comprehensive bail policy for county courts.

The policy officially took effect on Monday, but it’s been in the works for two years — and District Court Judge Hathaway Pendergrass says judges have already been applying its provisions for months.

“We wanted to effectuate those new tools even before anything was official,” he said on Saturday at a town hall hosted by the Chapel Hill-Carrboro NAACP. “It helps to give us some guidelines as to what’s important to us: what are we not criminalizing (and) what are we not punishing, especially in a pretrial setting.”

Read the new policy here.

The new policy establishes a standardized tool for magistrates and judges to use when deciding whether and how to set bail in a case. The policy also requires judges to default to “non-financial conditions of release” — releasing defendants into another’s custody, or on a written promise to appear, rather than requiring bail.

Judges under the new policy should only impose bail if there’s “substantial evidence” that a defendant will skip their next court date, or if their release would likely put others at risk. The policy establishes a 14-point system for assessing that risk, weighing factors like the severity of the charge and the defendant’s prior court history. The point system is based on a similar assessment tool that’s already in use in Virginia.

The policy also directs judges to avoid issuing arrest orders for defendants who miss court dates on misdemeanor charges, unless they’ve missed other court dates in the past. Instead, judges should issue a “continuation” and set a new court date – and try to connect defendants to social services, like Orange County’s Pretrial Services program or the Street Outreach, Harm Reduction and Deflection program (SOHRAD).

“We attempt to meet folks where they are, when they come in the courtroom,” said Judge Pendergrass. “Some of the hardest things that we do in district court are addressing non-appearances and first appearances, and ensuring folks are not put into custody when they don’t need to be there.”

The new policy also clarifies a pre-existing rule that’s only been inconsistently followed in the past: when setting bail, judges must consider a defendant’s ability to pay. A recent study found that more than 80 percent of defendants in Orange County could not afford to hire an attorney; advocates say such defendants often end up languishing unnecessarily in jail before their trials when judges set bail without considering their financial status.

That’s been a sticking point for the organization Orange County Bail/Bond Justice, which has been fighting for bail reform for years.

“If you have money, you can pay the bail and walk out the door,” advocate Jeff Hall told 97.9 The Hill in 2020. “If you don’t have money, then you start getting caught up in the system, and you essentially start getting punished from the moment of your arrest.

“Research shows us that within the first 48 to 72 hours after someone is arrested is when the most pernicious effects occur,” Hall added. “That’s when you lose jobs, that’s when you lose transportation, that’s when you have the possibility of your kids being taken away from you – and all of that happens when you have to stay in jail, and you have to stay in jail because bail is set.”

Chair of the Orange County Commissioners Renee Price agrees.

“Bonds too often result in needless financial hardship for individuals, excessive mental-health stress for their families, and undue social burdens for the community,” Price said. “Individuals who present no threat to society should never be detained simply because of their inability to pay or their socioeconomic status.”

Judges Baddour and Cabe issued the new policy on a recommendation from a Pretrial Reform Work Group that was established in 2019. The group spent two years working with Prof. Jessica Smith at the UNC School of Government to review existing policies and recommend changes.

Read the Work Group’s report here.

“We are pleased to be supporting stakeholders in their efforts to improve their local systems and promote a healthier and safer community,” said Smith. “Criminal justice reform and public safety can go hand in hand.”

Judge Pendergrass says he’s seen that happen firsthand in numerous cases. He shared one regarding a misdemeanor larceny charge from two months ago at the NAACP meeting. The items stolen included diapers and baby formula, and Pendergrass said the defendant’s address was simply listed as “the street.” Even though the defendant missed his court date, Pendergrass said “it didn’t feel right” issuing an order for an arrest.

“So, I communicated with SOHRAD, and they said ‘we’re already working with that individual…we know how to find them,’” Pendergrass said. “And it all worked. We addressed it, we (gave him) a new court date, and he showed up to that, because he was already in touch (with SOHRAD).”

In addition to the work of the School of Government and the Pretrial Reform Work Group, the newly announced policy also addresses several of the 14 recommendations issued by the Orange County Bail/Bond Justice Project in 2020.

Among other things, OCBBJ’s 2020 report found that some magistrates and judges were far more likely to impose bail than others. It also found that judges and magistrates imposed bail more often than necessary, and that they rarely inquired about defendants’ ability to pay.

Read OCBBJ’s report here.

By standardizing the system – and by clarifying the requirement that judges favor “non-financial conditions of release” – Orange County’s new policy is designed to address each of those concerns.

“We are all in this together,” Judge Pendergrass said, “in the way that we’re addressing all the different needs of our community members.”

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