Bail bill passed last week shows fissures among House Democrats
Wake County Justice Center (Photo: nccourts.gov)
Members of the House passed a bill last week that would strip magistrates of the responsibility to set bail for certain felonies and instead allow judges to determine whether people charged with some violent crimes should be granted pretrial release.
Under current law, police take people they’ve arrested to a magistrate, who determines bail or other conditions of confinement before a judge weighs in. House Bill 813 would let judges, rather than magistrates, determine whether people charged with certain crimes — serious felonies like human trafficking, first-degree arson or statutory sexual offense with a child by an adult — should be granted pretrial release, and if so, what the conditions of that release should be.
House Bill 813, known as the Pretrial Integrity Act, is a bipartisan proposal that passed the House Wednesday night by a vote of 92-25. But while it earned unanimous approval from Republicans, it exposed a fissure between Democrats concerned about a person’s constitutional right to bail and Democrats searching for a way to keep people jailed pretrial out of fear they would commit more crimes if they were to be released.
“We have had some major, major challenges with the magistrates doing the proper thing with the bail,” Rep. Carla Cunningham (D-Mecklenburg) said on the House floor. “And so we’ve got to do something different because we need something to change.”
The origins of the bill lie in Cunningham’s district, where the Mecklenburg County District Attorney and the Charlotte-Mecklenburg Police Chief have called for stricter bail laws after people charged with crimes bonded out and committed more crimes while they were out on bail.
That’s a scenario Rep. Abe Jones (D-Wake) told his colleagues he’d seen over his 17 years on the bench as a Superior Court judge.
“Occasionally a young person got loose, and should not have been, and did great harm,” Jones said. “I don’t see the young person’s rights as being damaged. In fact, the judge is going to be concerned about the rights of the youth and the interests of the public.”
But some Democrats were skeptical.
“This bill, I think, is violating the Constitution,” Rep. Marcia Morey (D-Durham), a former chief district court judge, said during the debate. “There is a constitutional right to bail.”
There are two exceptions to the right to bail in North Carolina: those charged with capital murder can be held without bail, and those accused of domestic violence can be held for 48 hours without having a bail set. Morey warned that the bill would greatly expand who could be held without bail for at least 48 hours.
Rape, arson, sex offenses — those are serious charges, Morey allowed. But, under the current law, if law enforcement brings probable cause to a magistrate, that official can set a high bond, which a judge can affirm at that person’s first court appearance.
“You can set a $10 million bond,” Morey said. “Not many people would get out. But to deny the right to bail, when we have a constitutional right to that, I think flies in the face.”
Morey singled out one part of the measure as particularly problematic. Section 2 would allow a judge, not a magistrate, to determine pretrial release conditions for someone who is charged with a new offense while already free on pretrial release for another crime. Morey laid out a hypothetical: say you were charged with speeding and posted bond. Before your next court date, you pick up another charge.
“You could be held in jail for 48 hours without any bond being sent — on a traffic case,” Morey said. “That provision needs to come out. Let’s rework it. Let’s keep people safe. Let’s keep offenders in with high bonds. But don’t deny them what has been a constitutional right.”
Echoing Morey, House Democratic Leader Rep. Robert T. Reives II (D-Chatham) said he supported the principle of keeping people locked up if they were committing “bad crimes.” But, he pointed out, magistrates aren’t elected. If they aren’t setting bonds high enough, Reives said, they can simply be fired and replaced.
“Just get a new magistrate. It’s an employee,” Reives said during debate. “We’re talking about bond, we’re not talking about conviction. If you’ve got a magistrate that’s letting dangerous people out on the street on a regular basis, I think it’s incumbent upon your Clerk of Superior Court, or your Superior Court judge — whoever’s doing that appointment — to have that magistrate replaced.”
Even still, Reives, who is an attorney, said that in his experience magistrates don’t just let people charged with serious crimes like the ones specified in the bill walk free.
“Usually what a magistrate is thinking is, ‘I’ll set a very high bond, and then if a judge wants to come in and reduce that bond, the judge can reduce it because the judge will then get more facts,'” Reives said.
Rising to speak on the floor a second time, Cunningham said maybe clerks should fire magistrates, “but in the meantime, we have a crisis going on that we need to address.”
Twenty Democrats wound up joining Republicans in voting for the bill. It is currently awaiting action in the Senate Rules Committee.
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