The Prosecutorial Chronicles, May 2019: Durham DA Rolls Out New Policies to Reduce Pretrial Detention

The latest on the politics of prosecutors, this month from Maine, North Carolina, Texas, and Utah.

Read more in our interactive tracker on the politics of prosecutors.

Durham County District Attorney Satana Deberry, who was elected in November, is rolling out new policies to reduce pretrial incarceration. She is restricting arrests over a failure to appear in court and narrowing the use of cash bail, a practice that leaves poor people in jail because of an inability to afford a payment.

In an internal memo released this week, her office states that only “in rare circumstances” should making a financial payment be a condition for pretrial release.

Studies of Durham’s legal system have long shown racial disparities in pretrial incarceration, and local groups like the Southerners on New Ground and the Southern Coalition for Social Justice have been organizing to eliminate cash bail.

Prosecutors do not set the conditions of release; magistrates and judges do. But prosecutors make requests, and often ask for harsh conditions. Moreover, the judicial branch made a change of its own this year: The county’s top judges announced new guidelines for magistrates and judges to “de-emphasize” cash bonds. They did so in part by using unsecured bonds (which require that people make a payment if they do not appear in court) as an alternative. But Deberry’s memo asks prosecutors to “disfavor” unsecured bonds as well, and states that financial conditions should require a determination of “an individual’s financial circumstances.”

This memo establishes a presumption that people arrested on lower-level charges (infractions and misdemeanor) should be released based only on a written promise to appear in court, with the exception of domestic violence cases. For felony-level offenses, it recommends the release of more people based on a written promise or based on nonfinancial conditions like house arrest. When judges plan to impose cash bail, the memo instructs prosecutors to ask for a “thorough inquiry into defendant’s ability to pay” and for the release of written findings.

In 2018, Philadelphia District Attorney Larry Krasner implemented a similar policy of not seeking cash bail in cases involving misdemeanor and nonviolent felony charges, and a subsequent study found no ill effect on court attendance or on recidivism. Other prosecutors have implemented policies to reduce the use of cash bail this year, including John Creuzot in Dallas, Rachael Rollins in Boston, and Andrea Harrington in Berkshire County, Massachusetts.

Deberry’s memo also recommends reducing arrests over a failure to appear in court. Such arrests have been a major source of jail incarceration in the county. It also encourages the use of automated services that notify released defendants of their court dates.

A spokesperson for Deberry’s office told me that the new policies took effect in February, and that the county’s average monthly jail population has since dropped from 420 in January to 366 in April. It stood at 356 this week. She attributed this decline to the office’s shift in policies “to a great extent.” The News & Observer writes that the average monthly jail population had not dipped below 400 “since at least 2004.”

Other prosecutors who, like Deberry, were first elected in 2018 have launched reforms over the past two months.

Maine: Natasha Irving, the DA of Knox, Lincoln, Sagadahoc, and Waldo counties, announced new policies to expand the use of restorative justice, a practice that involves addressing harm outside traditional legal settings by involving defendants and people affected by an alleged crime. (The Restorative Justice Project of the Midcoast operates in this area of Maine.) Beth Brogan reports in the Bangor Daily News that Irving campaigned on expanding restorative justice in the 2018 election, during which she defeated Republican incumbent Jonathan Liberman. Irving also announced that she will expand the use of pre-conviction diversion programs for lower-level offenses.

Texas: Dallas County DA John Creuzot, who was first elected in 2018, announced a big package of reforms in April in an open letter. These include no longer prosecuting first-time arrests for marijuana possession and no longer prosecuting theft of “necessary items” whose value is under $750. He also said he will shorten probation and reduce incarceration for people who violate some of their probation terms. To cut pretrial detention, he instituted a presumptive policy of asking for people to be released without conditions when charged with misdemeanors and some low-level felonies. Creuzot’s announcement provoked opposition from Republican Governor Greg Abbott and police groups, but some conservative proponents of criminal justice reform are defending Creuzot, a Democrat.

Utah: David Leavitt, the new prosecutor of populous Utah County, intends to create precharge diversion programs for lower-level offenses because he thinks existing approaches to diversion are too selective. “Leavitt calculated that it’s statistically more probable for an applicant to be admitted into Harvard University than it is for an arrested person to get into 4th District drug court,” Miller writes. Leavitt also intends to set up a conviction integrity unit within his office. Utah County officials considered creating an external review board last year but tabled that proposal.