Jessie Smith, a lawyer and Distinguished Professor at UNC Chapel Hill’s School of Government, spoke to the NC Courts Commission on September 7th about the legal and societal implications of an ineffective pretrial justice system in North Carolina and all over the country. Pretrial refers to the time between a defendant’s arrest and their trial. During this time, the individual arrested is supposed to be presumed innocent, however, these defendants are often given excessive bail fines and spend lengthy sentences in detention before they are even convicted. Smith went on to explain that the current bail system is in place to mitigate the risks of potential criminals who have been arrested. This is because while awaiting trial, a defendant can either commit new crimes or fail to appear in court.
However, Smith explained that the chance of defendants committing a second crime are only higher when they over-supervised and detained before trial. For those who are arrested for misdemeanors, over 30% of them commit a new felony, and 20% commit new misdemeanors when they are given detention or pretrial conditions. Yet, with similar backgrounds and social factors, the same low-level offenders are far less likely to commit new crimes when they are not supervised at all while waiting for trial. They continue to work, spend time with their families, and participate as active citizens in society.
In the Supreme Court case O’Donnell v. Harris County (Texas), the United States’ 5th Circuit Court Judge called pretrial bail services a “basic injustice”, saying it violates American citizens’ constitutional rights to due process and equal protection under the 5th and 14th amendments. This is based on economic factors, racial disparities, fairness, litigation, and in part due to coerced pleas. Even for low-level misdemeanors where individuals are innocent, many of them would rather plea guilty so they can go home to their families and not spend any time in jail. Additionally, when these defendants are detained, oftentimes they await trial longer than they would spend serving jail time if they were charged with a crime.
Our current cash bail system also grossly favors the wealthy, and this shows in the research. 30% of detained individuals are considered high income families, while poor and low-income defendants make up 70% of those who are in jail awaiting trial. Dentition makes up 20% of the country’s jail population, and since most of these cases are nonviolent offenders, it presents huge costs to the taxpayer and does not increase public safety. Last year, arrested individuals occupied 455,000 detention beds, costing the prison system and taxpayers 14 billion dollars.
In 2015, Chief Justice Martin requested a research report on pretrial services in North Carolina. The full report was delivered in 2017 and contains information from experts across multiple fields of study. This report shows in-depth studies into our flawed pretrial justice system and presents multiple practices to help reform it. Professor Smith also made her own recommendations, which she calls “procedural best practices.” These include:
- motivating arresting officers to give citations, warning, or summons rather than arrest
- providing primary engagement of defense counsel and prosecutor
- a speedy overview of the magistrates’ pretrial verdict
- a feedback loop between all actors of the criminal justice system
- court date reminders similar to doctor’s appointments
For more information on pretrial justice reform, please visit the Pretrial Justice Institute’s website.