A county in North Carolina wants to give its bail system a serious makeover
A local solution to a national problem.
Last week, the MacArthur Foundation rewarded a $2 million grant to Mecklenburg County, North Carolina, as part of an effort to reform aspects of its criminal justice system. The grant calls for a focus on the county’s bail system, which continues to trap people behind bars because they are poor — even though they haven’t been convicted of a crime.
The grant represents an important step toward making the bail system one based on a defendant’s risk to the community, rather than their ability to pay.
The MacArthur Foundation selected Mecklenburg, the largest county in North Carolina, as well as seven other counties to receive funding and technical support as part of its Safety and Justice Challenge. The Challenge first launched in 2015 to encourage local jurisdictions to evaluate their jail practices and implement strategies that can reduce the number of people languishing behind bars.
“What became apparent, as we looked at the landscape of the jails across the country, was that the problem was national in its scope, but … solutions that are necessary are very much locally-driven,” says Laurie Garduque, MacArthur’s Director of Justice Reform. Collaborators have brainstormed reforms tailored to meet their counties’ specific needs, but the hope is that their plans can also serve as a blueprint for jail reform efforts across the country.
In Mecklenburg County, changes have already been made to money bail in recent years, but the system remains flawed. In 2010, the Senior Resident Superior Court Judge and the Chief District Court Judge created non-binding guidelines for judges to use when deciding what a bond amount should be. The recommendations served as an early risk assessment tool that suggested higher amounts for serious crimes, as well as people who posed a greater threat to the community — a determination based on very specific criteria, including outstanding warrants for a person’s arrest, additional charges against them, past substance abuse, and “gang involvement.” At the time of implementation, Chief District Court Judge Lisa Bell said the guidelines established a system that didn’t trap people in jail because they were too poor to get out.
In 2014, the county launched the Public Safety Assessment (PSA), another tool to assist judges with pretrial release decisions. Now, every defendant is rated on a six-point scale that predicts the likelihood that he or she will fail to appear in court or commit another offense if released pretrial. Once someone is arrested, a court magistrate decides there is probable cause and sets an initial bond. If the bond can’t be paid, the defendant is jailed. At that point, a team of six people at Criminal Justice Services assigns a risk score based on objective criteria, such as the current charge, conviction history, additional pending charges, and previous times the defendant has failed to appear in court. Higher scores are believed to indicate a higher likelihood that someone will re-offend, jeopardize public safety, or fail to appear. The assessment is then used by judges during a defendant’s first appearance court to decide what the pretrial release conditions should be.
Following the tool’s implementation, the county’s jail population dropped 11 percent and the crime rate hasn’t increased. According to District Court Judge Elizabeth Trosch, an analysis of the first three months showed that black and white defendants were equally likely to receive a secured or unsecured bond. Sonya Harper, the director of Criminal Justice Services, and Jessica Ireland, the program manager for the office’s pretrial service program, also told In Justice Today that the PSA was an accurate predictor of whether or not someone would re-offend or fail to appear.
Still, some critics are concerned that risk assessment tools don’t rule out bias completely. People of color are disproportionately arrested, convicted, and sentenced to incarceration, meaning the objective criteria these tools are based on are, to some degree, skewed by racial bias — even if they aren’t intended to be. Black people can be perceived as a higher threat because they are more likely to come into contact with law enforcement and have previous charges or convictions on record. There is no way to accurately predict what a person’s actions will be in the future, which means these tools are premised on hypothetical scenarios. According to the Human Rights Watch, these tools can also be reductive — turning defendants into numbers instead of treating them as people with unique circumstances.
Even with the PSA in place, bail is still too high for poor defendants. People who are arrested but ultimately deemed low risk are still spending days in jail, because the PSA doesn’t happen until after a magistrate has met with the accused, found probable cause, and decided to impose an initial bond. Many defendants cannot pay the bond, so they are locked up until a judge agrees to release them during their first court appearance.
“The first thing we recognized is that we need to make sure that the first officer who makes a decision whether to book someone has the information to make sure these people, who will just be released anyway, don’t spend days in jail,” Trosch said. “That one to two days is extremely disruptive for a person — with employment, family, housing.”
What’s more, some people are jailed for low-level offenses that wouldn’t result in any jail or prison time after a finding of guilt. In 2013, North Carolina eliminated active sentences for anyone convicted of fewer than four Class 3 misdemeanors — low-level offenses that include failing to change an address with the DMV or paying for property with a worthless check. The only punishment that can be imposed under these circumstances is probation and a fine. But defendants accused of Class C misdemeanors are still jailed pretrial because they are poor — not because their offense calls for it.
There are also glaring racial and ethnic disparities among the jail population. As of October 2, there were 1,707 people detained at the Mecklenburg County jail, according to Harper and Ireland. Sixty-eight percent of them were African Americans, who only make up almost 33 percent of the county population. Caucasian defendants accounted for 20 percent of the jail population, but make up 58 percent of the county population. Sixty-two percent of detainees were held pretrial. The average length of stay for pretrial misdemeanor and felony defendants is 128 days and 43 days, respectively.
With the grant, criminal justice stakeholders say they want to tackle the racial disparities, equip the court magistrates with the PSA to keep people out of jail, and ensure that people aren’t detained pretrial for Class C misdemeanors.
“We’re very much aware that some folks are able to maneuver through the criminal justice system much more easily than others,” Harper said. “We’re aware that we have a number of folks who end up in our system [and] find themselves caught up in circumstance.”
MacArthur funding has already yielded positive results in other jurisdictions, including Philadelphia, which has six jails and a sky-high carceral population. In 2016, the law enforcement community set out to scale back that population 34 percent by 2019, using a $3.5 million MacArthur grant. More than two-thirds of the money was allocated to cash bail alternatives, and $100,000 was funneled into a pretrial risk assessment system. By May 2017, the jail population had already plummeted by 18 percent. The jail population has also dropped in Charleston County, South Carolina, which received a $2.25 million grant from the foundation to develop a risk assessment tool and establish a system to remind people to appear in court. There, the goal is to reduce the jail population by 25 percent by 2019, and there are, reportedly, more mental health and drug rehabilitation alternatives to incarceration.
But these efforts have also been met with skepticism, because the criminal justice actors devising and implementing these reforms are the same people who caused mass incarceration in the first place. There have also been numerous setbacks in jurisdictions that previously received this grant. According to Garduque, translating proposals into a full-blown operation requires ongoing dialogue and engagement, which hasn’t occurred at every site. The decision-making process requires give and take from different stakeholders in order to land on an approach that works for everyone involved, which has created some difficulty. Data collection has also been murky, because agencies have different record-keeping systems, making it hard to track cases and progress.
There is also a push in other reform-oriented counties — including Harris County, Texas and Cook County, Illinois — to simply eliminate cash bail for low-level offenses.
Despite these challenges and criticisms, Garduque and the collaborators in Mecklenburg County are acutely aware of the need for reform and optimistic that it can be done. “It’s not just the criminal justice system that’s implicated,” Garduque said. “It’s a community problem.”