Veteran NC judges: State’s bail system is a “scam,” “immoral,” and in need of “massive change”

Gregory Weeks had a distinguished career as as judge for Fourth Division of the Superior Court of North Carolina and Senior Resident Superior Court Judge for the 12th Judicial District.

He presided over the trials of the two men accused of murdering Michael Jordan’s father in Roberson County. He oversaw some of North Carolina’s first hearings on whether racism played a part in death sentences.

But these days, as he reads stories about the bail bond system in North Carolina and around the country, Weeks finds himself thinking about a case much earlier in his career.

“I don’t think I was out of law school for more than a year,” Weeks said in an interview this week. “I was working in the public defender’s office in Cumberland County and we had a 16 or 17 year old kid charged with a group of other kids with breaking and entering, larceny. I went to the first appearance to talk to the alleged victim and to the arresting officer to find out what their position was, hopefully get some information about the strength of the case.”

What Weeks found was none of the evidence tied the young man to the actual crime. The most that could be shown was that he was with a group of friends who were also accused of the crime. He may have been present at the scene, but there wasn’t even strong evidence of that.

Unable to afford the bail that had been set, the young man was in the county jail awaiting a court date. Weeks went to the Assistant District Attorney’s office to share the information he’d found and to see if they could at least negotiate to get the young man, who was not violent or a flight risk, out of jail.

“The response I got — which was not uncommon, I

got it on multiple occasions — was for them to come back to me and say, ‘Your guy can walk today if he pleads to a misdemeanor.’ They were not explicitly saying it, but the message they were conveying was that the fact he was in jail and couldn’t get out made him more likely to plea to something. That was their strength. So the bail bond because a mechanism for them to get pleas.”

“That’s not what bail is supposed to be,” Weeks said. “That’s not what it’s for. Bond exists to protect the public and to ensure a defendant’s appearance in court. Using it that way does not meet that standard.”

Today, Weeks is chairman of the Committee on Racial and Ethnic Disparities in the Criminal Justice System (NC-CRED). He’s also on the board of directors of The Sentencing Project and the North Carolina Justice Center, the parent organization of Policy Watch.

In those roles he’s been thinking a lot about how the bail system works in North Carolina – which Weeks said is a far cry from how state statute says it should work.

Presuming those accused to be innocent until proven guilty, the letter of North Carolina’s law leans toward allowing those not deemed a danger to the public or a flight risk to be released without having to post money to assure they will appear to face charges.

But Weeks, like many law enforcement officials, bail professionals and attorneys across the state, said that in reality it’s common for bail (or a secured bond) to be required for even minor charges. Those bails are regularly set regardless of whether the accused is shown to be dangerous or likely to flee, Weeks said.

“My sense of it is, whether it is conscious or not, it is an attitude of ‘this is the way it is, the way it’s been and we don’t expect there will be any significant change,’” Weeks said.

Weeks said he is now a bit ashamed to have contributed to that culture taking hold.

“From the perspective of the bench, being as candid as I possibly can be, there was a reluctance on the part of judges to release someone without bond or to reduce the bond,” Weeks said. “They knew they would run the risk that this individual would be the one who would come back to haunt them. Absent a strong showing, I think like many other judges I was reluctant to release someone or reduce the bond.”

Defense attorneys and public defenders are also unlikely to argue their clients should go free with no bail or reduced bail, Weeks said. Some of that is likely due to a heavy case loads (hundreds of clients at a time, in the case of some public defenders) and limited resources. Some of it, Weeks said, is just a “bail culture” that has taken hold.

“In my experience as a public defender and as a criminal defense lawyer, there was a disconnect between what we say we do and what we do,” Weeks said. “We were selective in following the law. We may know that what the statute says about bail, but we would rarely challenge bail with an argument predicated on the statute and an evidentiary showing.”

The result?

Those with the money to pay their own bail can return to their lives, families and jobs as they await their day in court. Or they can turn to the for-profit bail bond industry, which will allow them to pay a portion (no more than 15 percent) of the total bail, which is guaranteed by the bond company. Facing a $1,000 bail, a defendant could go home for no more than $150 to a bond agent.

But for many of the poorest North Carolinians, who can afford neither bail or a bond agent, a jail stay can lead to the loss of their jobs, their homes or even their children.

Donald W. Stephens agrees with Weeks on the bail system being broken.

Stephens had more than three decades on the bench before his retirement as a Wake County Superior Court Judge last year. In that time, he was instrumental in opening the Wake County Justice Center. Since his retirement he’s spoken frequently about the inequities of the criminal justice system to which he devoted so much of his life, and the way politics can interfere in that system.

“I personally think that bail bondsmen are leeches on the criminal justice system in terms of taking advantage of poor, disadvantaged people who find themselves in some situation with the law,” Stephens said in an interview this week. “It’s almost to the point of being immoral, frankly – especially as it deals with relatively minor, non-violent offenses.”

While many bail agents acknowledge the problems within their industry and have begun a movement to reform it, Weeks and Stephens agree that the problem is a political one as much as one involving the corruption of individual agents.

The system was never designed to operate this way, both judges said, but the bail bond industry has such influence with the North Carolina General Assembly that it has allowed a corrupt system to develop that is dangerous to both those who find themselves accused and the justice system itself.

“The industry have managed to get lobbyists that have managed to get the North Carolina legislature to enact laws to protect them,” Stephens said. “So now they know that once they get their premium, many of them don’t have to worry about what happens afterward. We’ve put the burden of actually making sure someone shows up for court on the court appointed lawyers. And if a client does actually flee, they can petition for a remission. They often end up not having to pay anyway.”

Stephens points to state Rep. Justin Burr (R-Stanly), a bond agent, and former state Sen. Tom Apodaca, a lobbyist former bail bond agent, as examples of the industry’s influence.

Even those lawmakers not directly involved in the industry were the beneficiaries of more than $350,000 in political contributions to state lawmakers between 2002 and 2016. During that period, the North Carolina Bail Agents Association took credit for helping to pass 60 laws “helping N.C. bondsmen make and save more money and protect their livelihood.”

Even if lawmakers were not swayed by well-connected lobbyists and high-dollar donations, Stephens said, they have very little incentive to fix the system.

“The legislature doesn’t really care,” Stephens said. “If they made it more difficult for the bondsmen and we collected more bonds, that money wouldn’t go to the General Fund; it goes to the individual county school boards. So they have little incentive to make sure this money is collected. Instead, they make it easier and easier for the bondsmen to hold on to their premiums.”

Two of the state’s largest counties are now struggling with just that problem.

In one ongoing case, former Wake County clerks were convicted of defrauding the county of approximately $1.5 million.

Kelvin Ballentine testified he was paid by three bond agents to falsify records in more than 300 cases in court computers from 2008 to 2012. He made it appear the bond companies had paid bonds for defendants who did not appear in court when they had not.

Bond surety companies are now in court trying to avoid paying the forfeited bonds – the proceeds of which would go to the Wake County Public School System if they could be collected.

Cases of bail agent fraud in Guilford County last year cost the county more than $200,000. One instance, involving two bail agents, cost the county more than $107,000 by itself.

“It’s almost a scam at this point,” Stephens said. “A commercial scam in which, in my opinion, they can do little or nothing for their premiums. The statutes create a manner in which there are all sorts of ways in which they can avoid paying almost automatically.”

Despite their dire assessments, Weeks and Stephens hold out hope for reform. While ultimately a large, politically dicey problem, both judges said progress is being made – even if it’s not happening at the state level.

“The legislature may not have any interest in fixing it,” Stephens said. “But the local counties are coming up with some solutions.”

Most of them involve strengthening pre-trial release programs at the county level, Stephens said, which allow defendants to be released with no or dramatically reduced bail if it can be demonstrated that they are not violent or flight risks.

“The counties are better at dealing with these things because their jails are overcrowded and they see the costs,” Stephens said. “So they see the value of these kinds of programs.”

Those sorts of pre-trial programs, using funding from the counties and from non-profits, are already in place to varying degrees in counties like Wake, Mecklenburg and Durham. Marrying them with a good system to assure the defendants make it to their court dates could make a huge difference, Stephens said.

Weeks also praises pre-trial service programs that are already showing there are alternatives to the for-profit bail bond industry. He also points to a recent decision in O’Donnell v. Harris County, in which the United States Court of Appeals for the Fifth Circuit ruled that a Texas county’s system of setting bail for indigent misdemeanor defendants was unconstitutional.

“If you read it, you’ll see that the system in place there is the system that is really in place in North Carolina and all around the country,” Weeks said. “So that case may be the first shot. It may lead to real change.”

A disproportionate number of the people harmed by the current system are ethnic and racial minorities said Weeks.

“We need a massive change on this,” Weeks said. “If for no other reason than there are entire communities that have little to no faith in our legal system. And when our system says one thing and does another, there are good reasons for that.”