The movement to reform our country’s for-profit, cash bail system has gained steam over the last few months as elected officials from states including California, Colorado, Texas, Oklahoma, New Jersey, and more have enacted reforms to reduce the number of people who are jailed before they have their day in court. In many cases, these changes have been driven by local district attorneys who aim to help turn the tide away from failed policies that have led to mass incarceration and begin tackling the racial disparities that pervade our legal system.
District attorneys are among the most powerful actors in the criminal legal system. They decide whom to prosecute, what charges to bring, whether to recommend freedom or incarceration before trial, whether to bargain for a plea deal, and whether to dismiss a case altogether. And while the decision to set bail is ultimately up to a judge, prosecutors have the power to argue for high bail amounts or recommend alternatives to cash bail.
High bail amounts have been used for decades to detain thousands of people, particularly low-wealth people and people of color, who pose no threat to public safety, putting them at risk of losing their job, housing, and even custody of their children. Across North Carolina 86% of people held in our jails have not been convicted of a crime.
A new policy from the district attorney in Durham County may help lead the way to reform the unjust and racist for-profit bail system in North Carolina.
Under that new policy, Durham District Attorney Satana Deberry now directs the prosecutors in her office to send people home on a written promise to appear in court if they are charged with low-level non-violent offenses, including property crimes and some drug offenses. She also requests that judges who decide to set bail hold a hearing to explain their decision and determine what amount a person could afford to pay.
Before this important change, people who had been charged but not found guilty of these types of offenses would have likely been required to pay money either to the court or a for-profit bail bondsman in order to be released from jail. And if they couldn’t afford their bail amount, they would have languished in jail for days, weeks, or sometimes even months or years while they waited for their day in court.
This change brings Durham closer to being in full compliance with already existing state law, which mandates that most people should be released from jail while they wait for their day in court and that if bail is set, the court must consider, among other factors, a person’s financial circumstances.
Bail is one of the most broken parts of our legal system, and there is more that Deberry could – and should – do to have an even larger impact.
First, Deberry should expand her policy to send more people home on a written promise to appear in court. No one should be jailed simply because of the amount of money they have in their bank account. And studies have shown that setting cash bail is not the most effective way to ensure a person shows up for their court date. To truly end the unjust use of cash bail, Deberry should recommend that the majority of people charged with a crime are sent home while they wait for their day in court.
Second, her office should collect data on the decisions being made by prosecutors in order to identify any racial disparities that persist as this new policy is implemented. People of color are jailed at much higher rates than white people, and any new policy must seek to end these disparities.
Finally, she should monitor her staff and be transparent about their actions in order to ensure this change is carried out. She must also be clear about what disciplinary action will occur if the prosecutors under her direction do not follow the new policy and hold them accountable.
As other counties and state lawmakers begin to look toward reforming our criminal legal system, Deberry has a real opportunity to make Durham a bright spot in North Carolina and a leader in the movement to end mass incarceration.
It’s going to take all of us—prosecutors, judges, legislators, community members, and voters—to dismantle this broken system and turn the tide toward a new vision of safety and justice. And you can help. Join our Campaign for Smart Justice at endcashbailnc.org.