16th PROSECUTORIAL DISTRICT INTERNAL PRETRIAL RELEASE POLICIES

Introduction

North Carolina law “expressly favor[s] the policy that pretrial release of the defendant should
be effected under the three conditions that do not depend upon the defendant’s financial
condition.” Official Commentary to N.C. Gen. Stat. § 15A-534. A judicial official must release
the defendant upon (1) written promise to appear, (2) an unsecured bond, or (3) a custody
order, unless certain findings are made. N.C. Gen. Stat. § 15A-534(b). Only where the
judicial official determines that such conditions will not reasonably assure the appearance of
the defendant, would result in danger of injury to any person, or are likely to result in
destruction of evidence, subornation of perjury, or intimidation of potential witnesses can (4)
electronic monitoring or (5) a secured bond be imposed. Id.

Despite statutory limitations on the use of secured bonds, the practice in this county has been
to impose secured bonds in many cases pursuant to a bond schedule which fails to consider
the unique circumstances of the individual and the individual’s ability to pay the secured
bond. Although this practice may be what many in the criminal justice system have become
accustomed to, it unjustly and disparately treats defendants with limited financial means.

Following a predetermined bond schedule without considering individual circumstances is

contrary to federal and state law. Secured bond should only be imposed in rare
circumstances, and when imposed, the judge must consider the individual’s financial
circumstances.

Judges and magistrates in the 14th Judicial District have been issued new guidelines and
procedures in determining appropriate conditions of release. Those guidelines are
suggestions for the judges and magistrates – NOT the 16th Prosecutorial District Attorney’s
Office. In order to support the vision of a more just and effective prosecutorial process, the
following guidelines should be used for first appearances and when consenting to defendant
bond motions.

I. Infractions and Misdemeanors

For all alleged infractions and misdemeanors for which the defendant is eligible for release,
the presumption at initial or first appearance is release upon written promise to appear.

Exceptions:
Written promise to appear will not be presumed in cases involving alleged domestic violence
where:
(1) the victim exhibits signs of injury caused by an act of domestic violence;

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 (2) there is probable cause to believe that the person has violated a domestic violence
protective order, and there is probable cause to believe that the person has been served with
said protective order; or
(3) there is probable cause to believe that a dangerous weapon has been involved in
the commission of an act of domestic violence.

II. Felonies

A. For all felony offenses that do not involve the use or threat of force against another person,
the presumption at initial or first appearance is release upon (1) a written promise to appear
or (2) a custody order. An unsecured bond is disfavored and should not be requested without
evidence and a request for a finding that the defendant has the present ability to pay it. The
most commonly charged offenses to which this policy applies are below. This list is intended
to be illustrative, not exhaustive.1

Breaking or Entering (non-residential)

Embezzlement
Forgery and/or Uttering
Fraud
Identity Theft
Larceny
Obtaining Property by False Pretenses
Possession of Controlled Substance
Possession with Intent to Sell and Deliver a Controlled Substance
Possession of Stolen Goods
Possession of a Stolen Motor Vehicle

B. For other felony offenses, the prosecutor may consent to the release of the defendant upon
a written promise to appear or custody orders that require reporting to particular individuals
in the community, electronic monitoring, or house arrest (with nominal secured bond
pursuant to § 15A-534(a)(5)). Electronic monitoring and house arrest should only be
requested if there is an evidentiary showing and written finding that less restrictive
conditions of release will fail to protect the community from the risk of physical harm to
persons or prevent tampering with witnesses or destruction of evidence. In determining

1This list is not intended to establish a default where certain offenses are associated
with release and others are associated with a secured bond, as such an approach runs
counter to the individualized process required by the U.S. Constitution as well as the
North Carolina General Statutes, which outline 12 discrete and individualized factors
a judicial official should consider in setting conditions of release. See N.C. Gen. Stat.
§ 15A-534(c).

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appropriate conditions, the prosecutor should consider evidence-based risk and needs
assessments where available, as well as the recommendations of the Criminal Justice
Resource Center.

Apart from the limited circumstances outlined in § 15A-533(a), (d)-(g) and § 15A-736, North
Carolina General Statutes do not provide for detaining noncapital criminal defendants
without setting conditions of release. Rare cases will exist, however, where the threat to the
community is such that a de facto order of detention will be necessary.

Barring unusual circumstances, a prosecutor should only request an unattainable secured

bond pursuant to § 15A-534(a)(4) where the defendant is (1) charged with a crime involving
the use or threatened use of force, (2) a substantial probability exists that the defendant
committed the crime, and (3) clear and convincing evidence demonstrates that no conditions
of release are sufficient to protect the community from the risk of physical injury to another
person or to prevent the destruction of evidence, subornation of perjury, or intimidation of
potential witnesses.

Unattainable secured bond should generally be reserved for individuals charged with Class
E felonies and above. Prosecutors should not rely on the offense class charged as the
determinative factor in requesting conditions of release, but should carefully consider the
individualized factors set forth in N.C. Gen. Stat. § 15A-534(c).

Because setting an unattainable secured bond is the functional equivalent of an order of

detention, which implicates constitutional liberty interests, the prosecutor should request
that a judge make written findings, supported by the record, that an unattainable secured
bond is necessary to protect the community from the risk of harm to persons or to preserve
the integrity of the evidence in the case. Prior to making such a determination, the court
must have permitted the defense to rebut any evidence presented by the State and present
any evidence relevant to the court’s determination. This hearing shall occur no later than 48
hours after arrest or at the next available court session except where the law requires
otherwise.

III. Failure to appear

To avoid the arrest and detention of those charged with misdemeanors and Class H/I felonies
who have missed or appeared late for a single court hearing, prosecutors should request to
be heard and consider joining defendant’s motion to refrain from issuing an order for arrest.
The State should not generally seek orders for arrests in such matters unless the matter has
been set for trial and the State’s witnesses are present. Instead, the prosecutor should
request that the court reset the matter, with notice from the clerk or defense attorney to the
defendant’s last known address, for at least 30 days.

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Upon the second failure to appear in a case involving a misdemeanor or Class H/I felony, or
upon the first failure to appear in a case involving a Class G felony or higher, the court may
issue a forfeiture of any previously imposed bond and an order for arrest. A prosecutor should
consider requesting that an order for arrest not be issued by the clerk until the following
morning to allow those with good-faith reasons for non-appearance to contact an officer of the
court.

IV. Probation Violations

When the court is setting conditions of release for alleged probation violations, the prosecutor
should refrain from requesting an unattainable secured bond unless substantial evidence
exists that the defendant has absconded as defined by N.C. Gen. Stat. § 15A-1343(b)(3a) and
the applicable case law.

V. Written Reasons Required for Electronic Monitoring and Secured Bonds

Pursuant to this pretrial release policy, whenever practicable, the State should request that
a judicial official record in writing his or her reasons for imposing electronic monitoring or a
secured bond. See N.C. Gen. Stat. § 15A-535(a).

When requesting or consenting to a secured bond, the prosecutor should request that the
judicial official make a thorough inquiry into defendant’s ability to pay and indicate in
writing whether the defendant is or is not able to obtain release.

VI. Recommendations when the State requests or consents to a bond

A pretrial services interview, using a race-neutral, validated assessment tool, should be

conducted for all defendants in custody regardless of charge.

Wherever possible, defendants should be provided the opportunity to participate in the

Automated Notification System whereby text message reminders are sent to the defendant
prior to court dates.

Prosecutors should encourage judicial officials to recommend the use of transportation, child
care, and mental health services demonstrated to improve rates of court appearance.