Stop Blaming Crime Increase on Bail Reform: NC Prosecutor

Our criminal legal system for decades has failed to truly keep all communities safe.

I’m proud to be part of a national movement of reform-minded prosecutors who are reimagining public safety. In many ways, what we are doing is trying to make our criminal legal system more closely resemble what it claims to do, but too often does not: find the truth, hold people accountable, and make communities safer.

Data for Progress recently surveyed many of these prosecutors, including myself, on the steps we are taking to reduce incarceration. In doing so, we are promoting both justice and public safety by following the law, scientific research, and the needs of our constituents.

In 2019, my office implemented a policy that discourages cash bail and pretrial detention in cases that do not involve violence, which make up the vast majority of our caseload.

Cash bail effectively creates a two-tiered system: One for people who have access to wealth and one for people who don’t, regardless of the danger or flight risk they may pose. Through our policy, we have tried to make public safety ― rather than access to wealth ― the determining factor in whether someone is released pretrial.

Good prosecutorial policies are based on facts, not fear.

Most people pose no danger and do not need to be detained pretrial. In these cases, we advocate for release without monetary conditions. There are only a small number of cases where risk to the public is such that pretrial detention is necessary.

This policy has been described as bail reform, and while it’s certainly a departure from the status quo, it is actually a return to what the law says we should be doing in the first place:  using pretrial detention as a “carefully limited exception” only in cases where necessary to protect the community and ensure the accused appears in court.

Although bond is set by judges and influenced by a range of factors, we do believe our recommendations have had an impact on individual cases and the larger culture around pretrial release.

A study by Duke University researchers found that after my office and Durham’s judges changed our pretrial release policies in early 2019, rates of high, unattainable bonds for nonviolent offenses, the average bail amount, and the detention population all declined.

There was no corresponding increase in failures to appear in court and the number of daily arrests did not change.

In March 2020, when the first COVID-19 cases were identified in North Carolina, we doubled down on our efforts, understanding how the virus could explode in a detention setting. We stepped up our existing process of routinely reviewing individuals in the jail on low bonds and began working proactively with defense counsel and judges to release people.

One example: In the early days of the pandemic, we reviewed the case of a 64-year-old man who had a considerable conviction history, as well as serious medical issues. Weighing the risks to his health, we advocated for his release pretrial.

In the nearly two years since, he has faced no new charges and certainly avoided substantial risk of exposure in detention.

Through efforts by our office and others, the average daily detention population was reduced by as much as 40 percent compared to pre-pandemic, and remained at less than half of the facility’s individual capacity from March 2020 through August 2021, allowing more space and resources for those living and working there.

This year, the average population of the jail is 25 percent lower than the year before I took office. This saves taxpayer money, lowers the strain on limited detention staff, and keeps more of our residents at home with their support networks.

Reducing reliance on pretrial incarceration is a reflection of what members of my community have demanded.

People have seen first-hand how pretrial detention separates families and undermines success. They want the criminal legal system to be focused on holding people accountable for serious offenses, not on detaining and punishing people simply because they don’t have money.

The desire for safety includes safety from the harms of mass incarceration.

While some have falsely blamed bail reform for the recent, devastating rise in gun violence taking place across the country―including in jurisdictions that have not implemented such policies―there is no evidence that reducing reliance on cash bail leads to an increase in crime.

In fact, research shows that for many people, being detained pretrial actually increases the likelihood of future offenses. Pretrial detention is extremely destabilizing. It can jeopardize a person’s employment, housing, medical or mental health treatments, and child custody.

Conversely, most people released pretrial return to court and few are re-arrested for violent offenses while out awaiting trial. In 35 cities including Durham, one recent study found no evidence that reforms by progressive DAs, such as discouraging cash bail and pretrial detention, increased local crime rates.

Satana Deberry

If our criminal legal system was actually designed around safety, we would work to avoid incarcerating people whenever safe to do so by providing them with second chances, opportunities for real accountability, and the tools they need to succeed.

The transformative policies of my office and progressive prosecutors around the country move us closer to a justice system that lives up to its name.

Satana Deberry has been the elected district attorney for Durham, North Carolina since January 2019.