Bail Reform and the Criminalization of Poverty
As Wake County considers new pretrial release guidelines, low-income and mentally ill people are being locked up.
On Dec. 5, a Raleigh police officer arrested Felicia, 33, for trespassing and took her to the Wake County jail. Court records show that Felicia—The Assembly is not using her last name—has no criminal record in North Carolina, and the class-three misdemeanor carries a maximum sentence of 10 days behind bars. But a magistrate gave her a $500 secured bond.
For Felicia, who was homeless, it might as well have been $500 million.
She was locked up for four days before getting a two-minute phone conversation with an assistant public defender and then a hearing (via video conference) before Judge Mark Stevens. Felicia was one of five defendants for that Thursday’s “Free the People” session—all people picked up for trespassing or shoplifting between two and eight days earlier who were in jail because they couldn’t pay bonds between $500 and $2,000.
Free the People has built up a rhythm over at least two decades (none of the half-dozen people interviewed about Free the People, including District Attorney Lorrin Freeman, recalls exactly when it started): A person—often homeless, always poor—is arrested for a low-level misdemeanor like trespassing or public urination, given a bond they can’t pay, and jailed until the next Free the People session, usually held on Thursday afternoons. A few minutes before seeing the judge, a public defender lays out their options: Plead guilty, or ask the judge to reduce your bond.
“They have to do it in person, except during COVID,” said Charis Link, who represented Free the People defendants when she worked at the public defender’s office. “It is incredibly depressing and jolting if you’ve never seen it, because if there’s multiple people, they will bring them out chained together.”
Over four months, between Sept. 2 and Jan. 6, 25 of the 34 people who appeared on Free the People dockets took the deal, according to The Assembly’s review of court records. Of the rest, one was declared incapable, two had their cases delayed, two refused to plead guilty and were released on an unsecured bond, and three made bail before the hearing.
And then there was Felicia.
She insisted she hadn’t done anything wrong, she said. She’d been on a mission for the CIA.
This posed a problem for Judge Stevens. The next available court date was a month away. He didn’t want her in jail. But she had no family or place to go here. He asked a question that, in retrospect, seemed obvious: Has anyone contacted her family?
No one had.
Felicia returned to jail while officials worked on that. Court records show her case was dismissed on Dec. 14.
Freeman says Free the People began as a way to keep people who’d repeatedly missed court appearances—and were likely to be denied bail—from languishing in jail until their court date, which could be a month or longer.
Wake County’s government thinks highly enough of the program that it funds a legal assistant to administer it—the only position in the office the county pays for.
But some district attorneys no longer seek secured bonds for low-level misdemeanors, and some courts, like in Cumberland County, no longer permit them. Reform advocates argue that jailing people who can’t afford bail is another way North Carolina criminalizes poverty.
“While some of these things may fall into what’s been called a poverty crime, largely, law enforcement is trying to give people every option, and [arresting them] is a last resort,” Freeman said. “Unfortunately, there are last-resort circumstances.”
Freeman said the county can’t ignore nuisance crimes.
“Ideally, if we had robust enough mental health services, most people [like Felicia] wouldn’t be taken to the jail,” she said. “Most of us who are pushing toward that agree that in an ideal world, those people would have somewhere other than the jail to go. But you can’t just leave them unattended. You can’t say, well, we’re not going to arrest these people, or we’re not going to take them to jail, or we’re not going to send law enforcement over there.”
In December, a Freeman-led committee proposed an overhaul of Wake County’s pretrial-release guidelines. If approved by Senior Resident Superior Court Judge Paul Ridgeway, its recommendations will likely take effect in April, updating guidelines in place since 2013.
Its goal is to jail fewer people unnecessarily, the committee’s report says. It’s not clear how the recommendations would affect small-time offenders who end up on the Free the People calendar, but they are significant.
Among other things, they instruct the sheriff’s office to create a real-time dashboard of jail inmates that can be filtered based on days in custody, charges, and bond amount—the current inmate list is difficult to navigate—and the public defender’s office to provide attorneys at all first appearances.
The committee also plans to implement the Public Safety Assessment (PSA), which uses nine factors related to age and criminal history to score defendants on the likelihood that they’ll skip court or get arrested before their trial. Those scores guide judges’ and magistrates’ decisions about pretrial-release conditions.
Importantly, the committee wants to make magistrates who apply a secured bond explain their rationale in writing.
“[The PSA] makes sure that magistrates are actually going through those steps before they get to imposing a secured bond, that they’re doing that evaluation, and not just automatically default [to secured bonds],” Freeman said.
Jeffrey Billman reports on criminal justice and politics from Durham. He is the former editor-in-chief of INDY Week*. Tips: firstname.lastname@example.org.*
This is a sidebar of The Assembly's larger exploration of the Wake County District Attorney's Office. That deep dive is linked here.