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Home My WebLink AboutAgenda - 03-02-2021; 4-c - Presentation on Orange County Bail Reform Initiatives 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: March 2, 2021 Action Agenda Item No. 4-c SUBJECT: Presentation on Orange County Bail Reform Initiatives DEPARTMENT: Criminal Justice Resource ATTACHMENT(S): INFORMATION CONTACT: RES-2018-025 - Resolution in Support of Caitlin Fenhagen, 919-245-2303 3DaysCount Judge Allen R. Baddour Report of the Orange County Pretrial Judge Samantha H. Cabe Working Group PowerPoint Presentation PURPOSE: To receive a presentation regarding the ongoing Bail Reform Initiatives in Orange County facilitated by Jessica Smith, W.R. Kenan, Jr. Distinguished Professor and Director of the Criminal Justice Innovation Lab at UNC's School of Government. BACKGROUND: In April 2018, the Orange County Board of Commissioners unanimously adopted a Resolution Supporting 3 Days Count—A Nationwide Effort to Make Communities Safer and Ensure Better Outcomes for All by Applying Common Sense Solutions to Widespread Pretrial Justice Challenges. The Resolution recognized that pretrial detention, even for a few days, is de- stabilizing to people's lives and can have severe consequences. The money bail system in North Carolina disproportionately impacts people of color and those with insufficient financial resources and does not adequately address true risk to the community. While Orange County has implemented many of the evidence-based best pretrial practices including an internalized Pretrial Services program in the Criminal Justice Resource Department (CJRD), the use of an empirical risk assessment tool, providing defense counsel at the first appearance, the increased use of pre- arrest diversion and citations in lieu of arrest, Orange County was still incarcerating individuals on secured bonds in the majority of cases. Since 2019, Orange County senior court stakeholders and the Criminal Justice Resource Department have collaborated to implement new bail reform initiatives that build on the efforts that have been underway here for many years. A Pretrial Work Group was established and led by Senior Resident Superior Court Judge Allen R. Baddour. In addition to court, law enforcement and pretrial services stakeholders, the Work Group includes Commissioner Renee Price and bail reform advocates in Orange County. The Work Group received funding from the County Manager, the CJRD and the District 18 Judicial Bar to contract with Professor Smith to facilitate the design and implementation of these new initiatives. The goal of the Working Group is to eliminate the unnecessary pretrial detention of individuals who do not present a significant risk but who are detained pretrial because they are unable to afford money bonds imposed in their cases. 2 The Work Group decided on two critical reforms to address initially: • A new structured decision-making tool to guide magistrates' bail decisions; and • A new decision-making process for responding to non-appearances in District Court. Following many meetings and the support of all stakeholders, the decision-making tool became effective in October 2020. The Non-Appearance policy became effective in January 2021. The District 18 Local Bond Policy was amended to include these new reforms. The CJRD supported the Criminal Justice Innovation Lab's application for grant funding to complete an evaluation of the impact of these reforms. The grant funding was awarded and the evaluation will examine the impact of the reforms on release conditions being imposed, jail bookings, non-appearance rates, new pretrial criminal activity and other justice system metrics. The funding also will support a validation of the County's pretrial risk assessment tool and assistance to the Work Group and Judge Baddour in issuing a new, comprehensive local bail policy. The Lab's first quarterly evaluation report is scheduled to be released in May 2021. FINANCIAL IMPACT: There is no additional financial impact. The County Manager's Office previously dedicated $2,800 to the CJRD for the facilitation contract with the Criminal Justice Innovation Lab at the School of Government. The CJRD dedicated an additional $2,400 to the Lab when more work was needed to complete the new reform initiatives. SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goals are applicable to this item: • GOAL: FOSTER A COMMUNITY CULTURE THAT REJECTS OPPRESSION AND INEQUITY The fair treatment and meaningful involvement of all people regardless of race or color; religious or philosophical beliefs; sex, gender or sexual orientation; national origin or ethnic background; age; military service; disability; and familial, residential or economic status. • GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY The creation and preservation of infrastructure, policies, programs and funding necessary for residents to provide shelter, food, clothing and medical care for themselves and their dependents. • GOAL: CREATE A SAFE COMMUNITY The reduction of risks from vehicle/traffic accidents, childhood and senior injuries, gang activity, substance use and domestic violence. ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal impacts associated with this item. RECOMMENDATION(S): The Manager recommends that the Board receive the presentation and provide any comments or questions. RES-2018-025 3 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION SUPPORTING 3DaysCountTM —A NATIONWIDE EFFORT TO MAKE COMMUNITIES SAFER AND ENSURE BETTER OUTCOMES FOR ALL BY APPLYING COMMON SENSE SOLUTIONS TO WIDESPREAD PRETRIAL JUSTICE CHALLENGES WHEREAS, nearly 12 million people are booked into United States jails each year, mostly for nonviolent misdemeanors; and WHEREAS, more than 60 percent of people in jail are not convicted — detained before trial largely because they are too poor to post even small money bond amounts — costing local governments a nationwide aggregate of nearly $14 billion annually in incarceration expenses; and WHEREAS, pretrial detention is deeply disruptive to people's lives and can have serious consequences, from interrupted education and medical treatment to lost jobs, housing, and even custody of children; and WHEREAS, the money bail system places a disproportionate and unfair burden on people of color, who, on average, face higher bail amounts even as they have fewer resources as a result of chronic, systemic exclusion from economic opportunity; and WHEREAS, research shows that when people who are most likely to appear in court and stay out of trouble are detained for even three days, they become more likely to be arrested for new criminal activity during the pretrial period compared to similar individuals released within just 24 hours; and WHEREAS, the money bail system allows nearly half of those least likely to succeed on pretrial release to quickly buy their release from jail with little to no meaningful support or supervision, without regard for the needs of victims, witnesses, and the broader community; and WHEREAS, the goals of 3DaysCountTm are to help states reduce unnecessary arrests by expanding the use of citations or summons, replace money bail with non-financial, least restrictive conditions, restrict detention to the small number of people for whom no condition or combination of conditions can reasonably assure appearance in court and public safety, and reduce disparity within the pretrial justice system; and WHEREAS, Orange County has already implemented many of the recommendations of the Pretrial Justice Institute including internalizing the Pretrial Release program in the Criminal Justice Resource Department, using an evidence-based pretrial risk assessment tool, ensuring the presence of defense counsel at first appearances, increasing opportunities for pre-arrest diversion, employing mental health professionals to work directly with individuals incarcerated at our jail to assess and refer to treatment in the community and continuing to collect data and measure performance on our efforts; NOW, THEREFORE BE IT RESOLVED, that the Orange County Board of Commissioners hereby endorses the goals of 3DaysCountTM; and BE IT FURTHER RESOLVED, that Orange County Board of Commissioners strongly urges our state-level stakeholders and government leaders to apply to join the Pretrial Justice Institute's 3DaysCountTM initiative. This the 17th day of April 2018. 7 Mark Dorosin, Chair t " Orange County Board of Commissioners :; 4 Report of the Orange County Pretrial Working Group' May 2020 (Revised Sept. 2020)2 Contents Background...................................................................................................................................................1 RecommendedReforms ...............................................................................................................................2 Magistrate's Structured Decision-Making Tool ........................................................................................2 Responses to Non-Appearances in Criminal District Court ......................................................................3 NextSteps.....................................................................................................................................................4 Appendix A: Magistrate's Structured Decision-Making Tool........................................................................5 Appendix B: Responses to Non-Appearances in Criminal District Court......................................................9 AppendixC: DWLR Procedures...................................................................................................................10 This report summarizes the work of the Pretrial Working Group and its recommendations to promote public safety and a fair and effective pretrial justice system in Orange County. Background Orange County has implemented a number of reforms to improve its pretrial system.Among other things, it has a county-funded pretrial services program, adopted an empirical risk assessment tool to inform judges' decision-making about pretrial conditions, established a "strike order court" affording relief from court non-appearances in appropriate cases, instituted pre-arrest diversion with law enforcement support, and established specialized courts to more effectively address the needs of those who enter the criminal justice system because of underlying issues such as poverty, homelessness, substance use and mental health concerns.Additionally, local police departments and the sheriff's department have implemented policing practices, such as citation in lieu of arrest,to promote the county's pretrial goals. Notwithstanding these efforts and the statutory mandate that conditions other than secured bond must be imposed unless the judicial official finds certain factors,3 data show that secured bonds are the most common condition of pretrial release used in the county, even in misdemeanor cases.4 Additionally, stakeholders reported concerns that low-risk individuals were being unnecessarily detained pretrial on money bonds they could not pay. 1 This report was prepared for the Working Group by Jessica Smith,W.R. Kenan Jr. Distinguished Professor and Director,Criminal Justice Innovation Lab, UNC School of Government. 2 September 2020 revisions include non-substantive adjustments to the magistrates'tool to address issues identified prior to implementation, ensure necessary data collection for the planned empirical evaluation, and ensure that existing local policy guidance is preserved in the tool;and deletion of the draft Implementation Plan, which became an internal working document. 3 G.S. 15A-534(b).The statute provides that in granting pretrial release,the judicial official "must" impose a written promise,custody release or unsecured bond "unless he determines that such release will not reasonably assure the appearance of the defendant as required;will pose a danger of injury to any person;or is likely to result in destruction of evidence,subornation of perjury,or intimidation of potential witnesses." 4 In 2019,secured bonds were imposed in 58%of highest charge misdemeanor cases.See JESSICA SMITH AND Ross HATTON,2019 NORTH CAROLINA CONDITIONS OF RELEASE REPORT(2020), https://coil.sog.unc.edu/files/2020/02/2019- Conditions-of-Release-Report.pdf. 1 5 Against this backdrop, the Pretrial Working Group came together in 2019 to explore what additional steps the county could take to further improve its pretrial system. A primary focus of discussion was eliminating the negative consequences that flow from unnecessary pretrial detention of individuals who do not present any significant risk but who remain detained pretrial because they are unable to afford money bonds imposed in their cases.After that convening, a subcommittee identified two priority areas for reform: (1) a structured decision-making tool for use by the magistrate at the initial appearance; and (2) a more nuanced approach for dealing with first time non-appearances in district court by individuals charged with misdemeanors.The County and District 18 Judicial Bar subsequently engaged Professor Smith from the UNC School of Government to help the Working Group develop tools to address these priority areas. In 2020, Smith worked with the subcommittee and the larger Working Group, facilitating their development of the tools described in this report. Working Group participants included: • Superior Court Judge Allen Baddour • District Court Judge Samantha Cabe • Chief Magistrate Tony Oakley • Orange County Commissioner Renee Price • District Attorney James Woodall • Assistant District Attorney Byron Beasley • Assistant Public Defender Phoebe Dee • Chapel Hill Chief of Police Chris Blue • UNC Police Chief David Perry • Orange County Sheriff Charles Blackwood • Clerk of Superior Court Mark Kleinschmidt • Caitlin Fenhagen, Criminal Justice Resource Director, Criminal Justice Resource Department • Ted Dorsi, Orange County Pretrial Services, Criminal Justice Resource Department • Jeff Hall, Orange County Bail Bond Justice Project • Probation and Parole Chief Mike Rakouskas • Hathaway Pendergrass, Board Representative,Justice Initiatives • Jennifer Marsh, Self-Help Credit Union • Madison Burke, Director of Court Advocacy, Compass Center for Women and Families Recommended Reforms Magistrate's Structured Decision-Making Tool In Orange County, Pretrial Services interviews in-custody individuals and performs a release assessment using the VPRAI-R risk assessment tool.'This information is provided to the district court judge presiding over the first appearance and to the public defender and prosecutor involved in that proceeding. Local resourcing does not allow for use of the VPRAI-R at the first bail determination,the initial appearance held before the magistrate.Although the existing local bail policy contains strong language favoring conditions other than secured bond, secured bonds are being imposed in the majority of cases, including highest charge misdemeanor cases.'Additionally,there was some concern that the lack of detailed guidance for magistrates allows for inconsistent pretrial decisions in similar cases. Other North Carolina jurisdictions have adopted structured decision-making tools for use at the magistrate stage. Eight North 'Virginia Pretrial Risk Assessment Instrument-Revised. 6 See SMITH AND HATTON,supra note 4. 2 6 Carolina counties already use such tools.'The first jurisdiction to adopt such a tool was Judicial District 30B,which in January 2019 implemented a set of reforms, including a structured decision-making tool for use at the magistrate stage.An empirical evaluation of that effort showed promising results. Specifically, in 2019 the percentage of cases in the District receiving a condition other than secured bond increased 43.79%. In that same time period,the district experienced only a 1.10 percentage point increase in the number of defendants incurring a new criminal charge during the pretrial period, and only a 1-2 percentage point increase in court non-appearance rates.'These results caused Working Group members to focus on adapting the structured decision-making tool used in Judicial District 30B to local needs and circumstances.The result of that effort is the structured decision-making tool for Orange County magistrates presented in Appendix A. Key features of the tool include: • Creating a presumption for conditions other than secured bond for non-DWI Class 1-3 misdemeanors. • Screening for all other offenses using an easily implemented checklist of defendant-and offense-specific factors designed to quickly identify other low-risk defendants who can be released on conditions other than secured bond. • Expressly incorporating into the magistrate's decision-making process the statutory determination under G.S. 15A-534(b), requiring imposition of a written promise, custody release, or unsecured bond unless the decision-maker finds that such conditions will not reasonably assure appearance, will pose a danger of injury to any person, or are likely to result in the destruction of evidence, subornation of perjury, or intimidation of potential witnesses. • Allowing for release to Pretrial Services at the magistrate stage as an alternative to a secured bond, when such release sufficiently mitigates pretrial risk. • Requiring documentation of reasons for imposing a secured bond. • Requiring that ability to pay be considered when setting a secured appearance bond, and that the ability to pay determination be made as to the total amount of the bond, not the percentage paid for a bail bond. • Requiring a detention bond hearing when a defendant is detained pretrial. • Providing a maximum bond table. • Preserving the magistrate's discretion to deviate from the tool's recommendations. Responses to Non-Appearances in Criminal District Court Stakeholders reported that the most common response to a non-appearance in district court was issuance of an Order for Arrest and imposition of a secured bond, even for first missed court dates in lower level misdemeanor cases. Pretrial Services reported that a significant number of lower level misdemeanor defendants were in jail on such conditions. Understanding that non-appearances can occur for a variety of reasons, including lack of notice of court dates,transportation or childcare issues, or an inability to get time off from work,the Working Group desired a process that encouraged a "second chance"for lower level defendants who miss a single court date or have good cause for their 'The relevant counties include: Haywood,Jackson, Forsyth,Washington, Beaufort, Hyde,Terrell, and Martin.See JESSICA SMITH,NCJUDICIAL DISTRICT 21 BAIL REFORM PROJECT(2019), https://cuil.sog.unc.edu/files/2020/01/Prolect- Report-JD-21.pdf;JESSICA SMITH,NC JUDICIAL DISTRICT 2 BAIL REFORM PROJECT(2019), https://cail.sog.unc.edu/files/2020/01/Protect-Report-JD2.pdf;JESSICA SMITH,NORTH CAROLINA JUDICIAL DISTRICT 30B PRETRIAL JUSTICE PILOT PROJECT,FINAL REPORT,PART I:BACKGROUND,PROCESS&IMPLEMENTED REFORMS(2020), https://cail.sog.unc.edu/files/2020/04/March-2020-Final-Report-30B-Protect-Part-1.pdf. 'See UNC School of Government Criminal Justice Innovation Lab,District 30B Bail Reform, https://ci il.sog.0 nc.edu/areas-of-work/bail-reform-2-0/district-3Ob-bail-reform/. 3 7 failure to appear as required.They thus recommend adoption of the decision-making process set forth in Appendix B for responding to non-appearances in district court.The proposed decision-making process is designed to encourage consideration of alternatives to orders for arrest in appropriate, lower- level misdemeanor cases. Key features include: • Application in district court only. • Focus on lower-level misdemeanor charges. • Preservation of the judge's discretion. • Simple and fast execution. Stakeholders discussed whether driving while license revoked (DWLR) charges should be treated as an exception to the new decision-making process for responding to non-appearances.Although they decided that the new process should apply to those offenses,they developed special procedures for DWLR charges to integrate them with the new decision-making process.Their consensus recommendations on this issue are included in this report as Appendix C. Next Steps The Working Group recommends that these tools be adopted into the local Bail Policy or by Standing Administrative Order.To facilitate implementation, the Working Group has crafted a detailed Implementation Plan. Finally, the Working Group proposes that if these recommendations are adopted, that it collaborate with Smith to pursue grant funding allowing the UNC Criminal Justice Innovation Lab to conduct an empirical evaluation of the impact of these reforms.An empirical evaluation will provide important feedback to stakeholders and community members regarding whether or not the proposed reforms achieve desired criminal justice metrics and/or create unintended consequences. 4 8 Appendix A: Magistrate's Structured Decision-Making Tool Orange County Magistrate's Pretrial Decision-Making Process Instructions: 1. This process supplements and provides structure for the magistrate's application of G.S.15A-534.Specifically,it requires compliance with G.S. 15A-534(b),requiring a written promise,custody release or unsecured bond unless certain factors are found,creates presumptions for certain release conditions and emphasizes certain factors in the decision-making process. G.S.15A-534(c)specifies factors that must be considered when setting pretrial conditions.A number of those factors are incorporated into this decision-making process.In deciding whether to follow recommended release conditions or to deviate,magistrates should consider other factors specified in G.S.15A-534(c)including the weight of the evidence against the defendant;the person's family ties,employment character,mental condition,and length of residence in the community;and any other relevant evidence. 2. This form must be used in all cases except where a statute or local policy prescribes a different process/result. 3. When a defendant is charged with multiple offenses arising out of a continuous transaction,only one form should be completed for all offenses. 4.For defendants arrested for probation violations,do not use this process;instead proceed directly to table below entitled,Maximum Secured Appearance Bond Amounts--Probation Violations. Date: Magistrate's Name(first initial, last—no commas): Defendant's Name(first, middle, last—no commas): Case#s: (no commas): Highest Charged Offense: STEP 1:Is the defendant before you on an OFA after a FTA or after arrest in a 48-hour case with judge setting conditions by phone? ❑ No. [GO TO STEP 2] ❑ Yes[IF CHECKED ALSO CHECK ONE OF THE OPTIONS IMMEDIATELY BELOW] ❑ Set conditions as ordered by judge in OFA or by phone: ❑ written promise ❑ custody release ❑ pretrial services ❑ unsecured bond $ ❑ secured bond $ [FORM COMPLETE] ❑ Bond doubling rule in G.S. 15A-534(d1)applies;secured bond $ [FORM COMPLETE] STEP 2:Is the highest charged offense a non-DWI Class 1-3 misdemeanor? ❑ No[GO TO STEP 3] ❑ Yes ❑ Follow policy recommendation: Impose a❑written promise❑custody release or❑unsecured bond. (Note: Per local policy, written promise&custody release are preferred over unsecured bond)[FORM COMPLETE] ❑ Follow alternative recommendation:Where defendant's impairment presents a risk of injury to a person, impose a "disappearing"secured bond for up to 8 hours or until sober,to convert to a written promise after that time. [FORM COMPLETE] ❑ Deviate from recommendation to impose written promise, custody release or unsecured bond. [GO TO STEP 3] 5 9 STEP 3:Do any sidebar factors apply? ❑ Yes[GO TO STEP 4] Sidebar Factors[CHECK ANY THAT APPLY] ❑ No ❑ Charged offense is Class A-E felony(if checked, check ❑ Follow policy recommendation: Impose❑written Yes in Step 3&proceed immediately to Step 4) promise❑custody release or❑unsecured bond. ❑ Defendant has recent history of FTAsl (Note: Per local policy,written promise&custody ❑ Defendant has prior record of at least one violent release are preferred over unsecured bond) [FORM felony conviction COMPLETE] ❑ Defendant has prior record of felony or misdemeanor ❑ Deviate from recommendation to impose written convictions within the last five years demonstrating a promise,custody release or unsecured bond. [GO pattern of conduct2 TO STEP 4] ❑ Charged offense committed when defendant was on pretrial release,supervised probation, parole or post- STEP 4:Assess the statutory risk factors.12 Release on release supervision written promise,custody release or unsecured bond (check ❑ Charged offense involves domestic violence' any that apply) ❑ Charged offense involves violence or injury to a ❑ will not reasonably assure defendant's appearance persons as required ❑ Charged offense requires sex offender registration'or Explain: is a failure to register as a sex offender offense' ❑ poses a danger of injury to any person ❑ Charged offense is a drug trafficking offense'or Explain: involves distribution of drugs' ❑ is likely to result in destruction of evidence, ❑ Charged offense is DWI and defendant has at least 1 subornation of perjury,or intimidation of potential DWI conviction within the last seven years witnesses ❑ Defendant is impaired such that immediate release is Explain: likely to cause harm to self/others/property" ❑ Charged offense involved defendant's use of a firearm STEP 4,continued or deadly weapon" ❑ No boxes checked ❑ Follow policy recommendation: Impose❑written promise ❑custody release or❑unsecured bond. (Note: Per local policy, written promise&custody release are preferred over unsecured bond) [FORM COMPLETE] ❑ Deviate from recommendation to impose written promise, custody release or unsecured bond. [GO TO STEP 5] ❑ Any boxes checked ❑ If release on written promise, custody release or unsecured bond poses a danger of injury to any person and that risk is created only by the defendant's impairment, impose a "disappearing'secured bond for up to 8 hours or until sober,to convert to a written promise after that time[FORM COMPLETE];otherwise ❑ [GO TO STEP 5]. STEP 5:Can Step 4 risk factor/reason for deviation be addressed by custody release/release to pretrial supervision services? ❑ Yes. Impose a custody release and order release to❑ custodian or❑ pretrial services. [FORM COMPLETE] ❑ No ❑ Follow policy: Impose secured bond" in the amount of:$ Explanation for imposing a secured bond: [If amount within maximum bond table,FORM COMPLETE;if in excess of that table COMPLETE NEXT LINE] Explanation for secured bond in excess of maximum bond table: .[FORM COMPLETE] ❑ Deviate from policy&impose written promise,custody release or unsecured bond. (Note: Per local policy,written promise &custody release are preferred over unsecured bond) Explanation: .[FORM COMPLETE] 6 10 Notes: 1.There must be more than one prior FTA for this factor to apply. FTAs within the last two years are most relevant,as are CFAs for FTAs in cases other than minor traffic. Impaired driving is not a minor traffic case.Notwithstanding the word"recent"in this sidebar factor,magistrates may deviate from recommendations based on an older FTA history,for example,when a person has an older FTA history but was only recently released from incarceration for that offense. 2.The pattern of conduct must relate to the present offense. For example:the current charge involves drug possession and the Defendant has three priors within the last five years for misdemeanor drug or drug paraphernalia possession. 3.An offense involves domestic violence when the relationship between the parties is one of the following: • Current or former spouses • Currently or formerly lived together as if married • Currently or formerly in a dating relationship • Have a child in common • Parent(or one in parental role)/child • Grandparent/grandchild • Current or former members of the same household Note:this list is drawn from G.S. 15A-534.1,the 48-hour domestic violence hold statute. 4. For example,robbery,assault,assault by pointing a gun,and assault by strangulation. 5.This factor applies when the offense involved harm to a person(e.g.,assaultive conduct). It does not apply to offenses in which property is taken or harmed(e.g.,larceny,embezzlement,obtaining property by false pretenses,etc.). 6. For a list of offenses requiring sex offender registration,see JAMIE MARKHAM AND SHEA DENNING,NORTH CAROLINA SENTENCING HANDBOOK 2018(UNC School of Government,2018). 7.See G.S.14-208.11(a);JESSICA SMITH,NORTH CAROLINA CRIMES:A GUIDEBOOK ON THE ELEMENTS OF CRIME 268(7th Ed.2012)(discussing this offense). 8.G.S.90-95(h);SMITH,NORTH CAROLINA CRIMES,supra note 8,at 721-739(discussing trafficking offenses). 9. For example,sale and delivery of a controlled substance and possession with intent to manufacture,sell,or deliver. 10. For defendants in impaired driving cases,follow impaired driving procedures.In all other cases if a secured bond is imposed only because of this factor and the defendant remains detained,conditions must be revised without consideration of this factor when the defendant's impairment no longer presents a danger of physical injury to himself or herself or others or of damage to property,but in any event,no later than 24 hours after secured bond was set. 11.As a general rule,for this factor to apply the defendant must have actively used the firearm or deadly weapon during the charged offense,for example,pointing a gun during a robbery.Carrying concealed is an exception to this general rule.Although a single carrying concealed violation does not satisfy this factor,multiple such violations may satisfy it. 12.G.S. 15A-534(b).When making this inquiry,judicial officials should consider whether pretrial restrictions(e.g.,restrictions on travel, associations,conduct or place of abode,as well as abstention from alcohol consumption,as verified by the use of an approved continuous alcohol monitoring system),which can be imposed with a written promise,custody release or unsecured bond,can sufficiently mitigate pretrial risk.See G.S. 15A-534(a). 13. If a secured appearance bond is imposed:(1)the judicial official must consider—among other relevant factors—the defendant's ability to pay; and(2)the amount of the secured appearance bond should not exceed the amounts listed the tables shown below;if a secured bond is set in excess of these recommended maximums,reasons for doing so must be documented.Ability to pay should be assessed as to the total bond amount,not 10%that would be paid for a commercial bail bond. If a secured bond is used to detain("detention bond"),a detention bond hearing that affords the defendant appropriate procedural protections must be held before a judge on motion by the defense. 7 11 Maximum Secured Appearance Bond Amounts—Felonies and Misdemeanors(Other than DWI) If a bond is set in excess of these recommendations,reasons for doing so must be documented. These suggested maximum bond amounts are not mandatory and do not replace the use of the Magistrate's Tool and judicial discretion. Offense Class Maximum Bond Felony A By Judge B $200,000 C $100,000 D $75,000 E $25,000 F $15,000 G $10,000 H $5,000 I Written Promise Misdemeanor Al $2,500 1 $500 2 Written Promise 3 Written Promise Maximum Secured Appearance Bond Amounts—DWI If a bond is set in excess of these recommendations,reasons for doing so must be documented. These suggested maximum bond amounts are not mandatory and do not replace the use of the Magistrate's Tool and judicial discretion. No prior DWI convictions Written Promise 1 prior DWI conviction within 7 years $500 2 prior DWI convictions within 7 years $2,500 3 or more prior DWI convictions within 7 years $15,000 Maximum Secured Appearance Bond Amounts—Probation Violations Bail conditions and bond amounts must be set for probation violations based on the nature of the violation,not the offense class of the underlying offense,using the table immediately below. If a bail condition or bond is set in excess of these recommendations,reasons for doing so must be documented. Type of Violation Maximum Bond Technical violation Written Promise Violation is a new crime—Class 2 or 3 misdemeanor Written Promise Violation is a new crime—Class 1 or Al misdemeanor $5,000 or Class H or I felony Violation is absconding9 or a new crime—Class G Double the maximum bond allowed for the new offense in the tables above felony and above Other Bond Amount Guidelines Fugitive Warrant Set amount appropriate for underlying offense Governor's Warrant No bond Parole Warrant No bond Drug Trafficking Suggested maximum bond:An amount that is double that listed in table above for other offenses of the same class 9 As defined by G.S.15A-1343(b)(3a)and interpreting cases. 8 12 Appendix B: Responses to Non-Appearances in Criminal District Court Responses to Non-Appearances in Criminal District Court Orange County adopts the following decision-making flowchart for responding to non-appearances in district court for all class 1-3 misdemeanors that are not subject to exception by other district policies. This flowchart is designed to encourage consideration of alternatives to orders for arrest(OFA) and bond doubling in appropriate and lower-level misdemeanor cases.Judges always retain discretion to deviate from this flowchart." Are any of the following relevant considerations as to whether an OFA should issue: ❑ There is good cause for the nonappearance (e.g., being in custody elsewhere or in the hospital; lack of notice of proceeding) ❑ The prosecuting witness was subpoenaed and did not appear Judge re-sets court Yes No date with notice to defendant& counsel (if represented) Class 1, 2,or 3 misdemeanor? Yes No Prior non-appearance in this case or knowledge of prior non-appearance in a pending case? Na Yes Judge issues 0FAsetting � conditions,which can include money bond, in judge's discretion Judge re-sets court date with notice to defendant&counsel (if represented) io In exercising this discretion,judges may deviate from the recommendation to re-set the court date after a first non- appearance if the non-appearance occurred for a trial date and the witness was subpoenaed and present. The Clerk of Court will provide the notice required by this process by letter or card.All Chapter 20 cases except Impaired Driving and Driving While License Revoked(DWLR)will go to the"20-day failure box."DWLR cases are subject to the additional procedures set out in Appendix C.Strike Order court will continue to be held every Thursday morning. 9 13 Appendix C: DWLR Procedures This proposal integrates treatment of Driving While License Revoked (DWLR) charges into the new Responses to Non-Appearances policy for Criminal District Court. Current policy addresses non-appearances on DWLR charges under the 20-day Failure to Appear system, in which the Clerk of Court sends notice to the Department of Motor Vehicles (DMV) 20 days after the non-appearance.The DMV then sends notice to the defendant, 60 days after which the defendant's license will be suspended if the matter is not resolved. Under the current policy, an OFA is not issued for a DWLR charge. Integration into the new Responses to Non-Appearance policy will create a better mechanism to encourage defendants charged with DWLR to appear in court to resolve the matter, which in turn will help to avoid the accumulation of driver's license consequences.This policy does not modify treatment of any other Chapter 20 charge; other Chapter 20 charges which currently fall under the 20-day Failure to Appear system will continue to do so. Under the Responses to Non-Appearance policy the following steps will result from a non-appearance on a DWLR: 1. Defendant has first non-appearance for DWLR charge. 2. Judge re-sets court date with notice sent to defendant& counsel (if represented). Notice includes Restoration Legal Counsel Information as well as educational information about missed court dates. 3. If Defendant misses the new court date, an Order for Arrest (OFA) is issued with a Written Promise to Appear(WPA).When arrested, Defendant will be taken to Magistrate for a review of the release conditions and receive a new court date. Magistrate will provide Defendant with Restoration Legal Counsel information. 4. If Defendant has a third non-appearances, then an OFA and cash bond issues. Under this system, Defendants still will be able to make use of the Strike Order Hearing system if an OFA is issued for a second or subsequent missed court date. In both the notice of new court date letter and appearance before the magistrate, information will be provided about Orange County Restoration Legal Services, which is available to assist in getting defendants information about their driving records and helping to restore their driver's licenses.The following information also will be provided in the notice of new court date letters to educate on the financial and license consequences of missed court appearances: • If you are charged with Driving While License Revoked-Not Impaired and go to your court date, then your license will NOT be suspended further if you are found guilty of or plead guilty to this charge. • If you are worried about being able to pay court costs and fines if you are found guilty of or plead guilty to this charge, contact Restoration Legal Counsel for assistance. • If you miss your court date a second time,the clerk will enter a Failure to Appear on your record.This will add a $200 fine to the amount you will owe to the court if you are found guilty of or plead guilty to this charge. If you cannot pay that $200 fine, an additional suspension could be placed on your license. • If you miss your court date a second time,the DMV will receive notice of this miss and will contact you. 60 days after they contact you, an additional suspension will be added to your 10 14 license if you do not handle the case in court. Your license will then stay suspended until you handle this case, and it will become more difficult for you to restore your license. • If you continue to miss your court dates on this case,you risk being arrested and incarcerated if you cannot pay a cash bond. 11 15 Bail Reform Initiatives in Orange County Presentation to Orange County Board of Commissioners March 2 , 2021 Business Meeting Caitlin Fenhagen, GIRD Director .Judge Allen R. Baddour, Senior Resident Superior Court .Judge .Judge Samantha H. Cabe, Chief District Court judge J 1� 16 Inequities in Pretrial Release Practices Reliance on only a money-based pretrial system is racially and economically biased . It automatically disadvantages people of color, who are less likely to afford money bond . African-Americans are 66% and Latino individuals are 91 more likely to remain in jail pretrial than similarly situated White individuals . Compared to White men charged with the same crime and with the same criminal histories , African-American men receive bail amounts 35% higher; Latino men receive bail amounts 19% higher. *Data from Pretrial justice Institute 17 Impacts of Pretrial Detention ► De - stabilization : employment, housing , family, health , later recidivism Worse Case Outcomes : 4 x more likely to receive sentence of incarceration 3 x more likely to receive a longer sentence More likely to accept a plea when innocent Data from the Pretrial Justice Institute 18 benefits of Pretrial Reform for Orange County Reduce Inequities and Disparities Reduce Explicit and Implicit Bias Using an Evidence- Based Tool to Assess Risk Promotes Safety Pretrial Supervision and Accountability Allows for an Opportunity to Address Needs and Enhance Court Appearance Rates Increase Stability and Improve Outcomes for .Justice - Involved Individuals Reduce Pretrial Population and Costs to County 19 Understand the Costs ► Daily Cost of Incarceration - $ 111 + per day Jail Cost Allocation Jail costs Personnel Costs $ 3,238,000 Operating Costs $ 1,086,000 Facility and Indirect Costs $ 770,000 Total Annual Cost $ 5,094,000 Operating CostsInmate Fee Revenue $ (171,000) Personnel 21% .•sts % Net Annual Cost $ 4,923,000 Average Daily Population 121.5 _Facility and Indirect Costs Annual Cost Per Inmate $ 40,519 15% his Daily Cost per Inmate $ 111.02 20 Orange County Pretrial Practices Internalized Pretrial Services under CJRD Dedicated Case Manager with supporting behavioral health specialists to assist with case management needs Everyone booked is seen in-person by Case Manager and Intake Completed . Risk and Needs Assessed . Empirical Risk Assessment tool completed ; information verified ; summaries and recommendation provided prior to court First Appearances held at 2 :00pm Mon - Fri on Misdemeanors, Felonies and Orders for Arrest District Attorney and PD Present GPS monitoring available only for higher risk individuals No cost to individuals for Pretrial supervision or GPS Court date notification and check-ins are automated Data collected by .Jail dashboard and C,JRD Pretrial software Shrink the Funnel : Increased Use of Citations, Pre-Arrest Deflection Programs, Decriminalization COVID- 1 9 Urgent Measures Strike Order Hearings held Thursdays 21 New Bail Reform Initiatives Pretrial Work Group created in early 2019 Mission : Eliminate unnecessary pretrial detention for individuals who do not pose a significant risk but are unable to afford a money bond Members Include : Judge Baddour, Judge Cabe , DA Jim Woodall , Asst. PD Phoebe Dee , Chief Magistrate Tony Oakley, Commissioner Renee Price , C.JRD Director and Pretrial Case Manager, Sheriff Charles Blackwood , Chapel Hill Police Chief Chris Blue , Clerk of Court Mark Kleinschmidt, community bail reform advocates Facilitation by UNC School of Government Criminal justice Innovation Lab and professor Jessica Smith (support from County Manager, CJRD and District Bar) 22 Core Reforms New Structured Decision - Making Tool to Guide Magistrates ' Initial Bail Decisions Link Hers Flowchart Matrix with Checklist Presumption for conditions other than a secured bond for Class 1 - 3 Misdemeanors Allows for Release to Pretrial Services Requires documentation for a secured (money) bond Form completed in every case Preserves magistrate discretion Implemented October 2020 23 Core Reforms New Decision - Making Process for Responding to Non -Appearances in District Court unK here Encourages alternatives to Orders for Arrest for Non- Appearance Applies only in District Court Suggests rescheduled court date for first non-appearance in low level misdemeanor cases Preserves judicial discretion fudge completes form for each non-appearance explaining decision Implementation January 2021 za Evaluation and Next Steps : The Criminal Justice Innovation Lab was awarded a grant to execute an evaluation of the impact of these changes over the next year. The first report will be released in May 2021 The Lab will work with Judge Baddour and key stakeholders to finalize a new, comprehensive Local Bail Policy Questions / Concerns