“Imagine this,” Isaac Villegas implores a crowd filling the pews at downtown Durham’s First Presbyterian Church on Tuesday night. “On your way home tonight you’re snatched from your life —disappeared. You don’t show up where you’re expected, where your people are expecting you to be. Perhaps you don’t come home tonight because you’re in a cage in jail.”
Stuck in jail without money to post bail, you begin to miss your children, bills and work, he continues. After weeks awaiting trial, you accept a plea deal just to get out. Your incarceration may be over, but the mark on your record follows you.
This is a situation Southerners on New Ground is trying to prevent by calling for an end to money bail in Durham. Villegas delivered his words at a forum— co-hosted by the LGBTQ liberation group, the People’s Alliance, and the Durham Human Relations Commission— covering the elements of the bail system, how it impacts Durham residents and what’s already being done in Durham and other jurisdictions to push for reform.
Bail, says Serena Sebring, a regional organizer with SONG, is “one of the most urgent issues in our community.” The organization is launching an End Money Bail campaign next month.
“What we’re looking at is people who are held in jail once they’ve been charged with a crime but have not been convicted of a crime. Folks who are in that situation are asked to purchase their own freedom — actually held on what we might consider to be a ransom,” Sebring said. “… We believe in a world without cages, without prisons and without policing, but you don’t have to join us there in order to really know that something has to change about the injustice of a system that holds people ransom in cages simply because they cannot afford to pay bail.”
Last year, SONG bailed twenty-three black women out of the Durham County jail; their charges included interrupting a funeral procession, assaulting someone with a bathtub stopper and possession of marijuana. Their stays in jail ranged from two to sixty-four days.
Diane Standaert, chair of the Human Relations Commission, which recommended ending money bail last year as part of a report seeking improvements at the Durham County Detention Facility, said issues in Durham’s criminal justice system cannot be separated out from a larger system of mass incarceration that is disproportionately affecting people of color both nationally and locally. Bail reform is particularly pressing, she said, given that five people have died at the Durham jail since the start of 2015.
“What we’re talking about this evening is literally a matter of life and death,” she said.
Under North Carolina law, judicial officials have five pretrial release conditions they can impose: a written promise to appear in court, an unsecured bond (which requires no payment upfront, only if the person fails to appear in court), a custody release to another person or organization; a secured bond (which does have to be paid for someone to be released) or house arrest with electronic monitoring. In making this decision, judges and magistrates take into account a person’s criminal history, past record of failing to appear in court, and the severity of the charges against them.
State statute instructs judicial officials to impose a written promise, unsecured bond or a custody release if those options will ensure a defendant appears in court, doesn’t commit a new crime while released and won’t interfere with the case. If not, they must impose secured bond or house arrest, the statute says.
Local judges may set more specific bond guidelines. In Durham, a 2011 policy provides suggested secured bonds, but the amount is ultimately up to the discretion of judges and magistrates.
Hundreds of people are held at the Durham jail with low, secured bonds.
According to Delvin Davis, with the Center for Responsible Lending, about 60 percent of people detained at the Durham jail in 2016 were held pretrial. Of that group, about 40 percent of the pretrial population (24 percent of the total population) was held on a bond of $5,000 or less.
Asked how many people in the crowd have had to bail someone out of jail, about fifteen people in the crowd raised their hands. Fewer people signaled they had been in jail themselves. Just three hands remained high when asked who has been stuck in jail because they couldn’t afford bail.
“We’re the elite,” said Andrea Hudson, who is establishing a bail fund at the Southern Coalition for Social Justice and helps families navigate the court system through a program called Participatory Defense. Unable to pay bail, Hudson spent fifty-one days in jail in 2012 on charges that were later expunged. A single mother, she lost her home and job.
“That’s my story but I know that story is someone else’s story, they just haven’t had the gumption and the nerve to tell their story because they’re embarrassed,” she said, “but I’m not embarrassed to tell my story because that story molded me into who I am today.”
Mikel Barton, a Human Relations Commission member, detailed some alternatives to bail in place across the country. In forty of fifty states, he said, “people are pushing” for bail reform, either through lawsuits, legislative action or pilot programs.
Senator Floyd McKissick, Jr., one of several elected officials in the audience, said among the most compelling things he heard Tuesday were statistics on the number of people in jurisdictions with no or limited money bail who return to court and do not incur new charges while released on non-monetary conditions. Some of the resources allocated to the Durham Police Department and Durham County Sheriff’s Office should be diverted toward preventing incarceration, he said. “We need to help a lot more with support services at the front end.”
This is in line with one of SONG’s End Money Bail campaign demands: a pretrial release needs assessment that would look at what people need in order to “stay safe and come to court.”
“Instead of locking people up in a jail we all pay for, Durham County elected officials should assess people’s needs and invest in meeting them,” said Jade Brooks, with SONG.
Other elected officials in the crowd were state Representative Marcia Morey (a former Durham County District Court judge who helped write the county’s current bond schedule), Durham County District Attorney Roger Echols, Durham County commissioners Brenda Howerton and Heidi Carter, District Court Judge Amanda Maris, and Durham City Council members Jillian Johnson, Charlie Reece, DeDreana Freeman and Javiera Caballlero.
Clarence Birkhead, who is challenging Durham County Sheriff Mike Andrews in his re-election bid, also attended and said he would support bail reform. “We don’t want to run a for-profit jail,” he said. He thinks an immediate elimination of all money bail in Durham is a stretch, but that people facing low-level, nonviolent offenses should be released on a written promise, unsecured bond or house arrest.
Andrews told the INDY he supports releasing people assigned low bonds with ankle monitoring; doing so would help manage the jail population. He has advocated for this as well as an amnesty week in which people with outstanding orders for their arrest because they didn’t come to court for traffic or misdemeanor charges can schedule new court dates and have those orders dismissed, but has not been successful.
Birkhead expects bail will be a significant issue in the upcoming election — he says he was approached by a group (which he declined to identify) last October that was working on potential bail reform legislation. Echols is also up for re-election, as well as three Superior Court judge seats and six District Court seats.
While SONG recognizes ending money bail completely would be a significant change, there is a concern that eliminating bail for just some lower-level offenses could result in law enforcement officers “up-charging” people with offenses that do allow for money bail. In the meantime, SONG wants money bail to be used only as a last resort and for judicial officials to decide each case on an individual basis, taking ability to pay into account.
“We heard in the beginning that it’s supposed to work this way,” Brooks said. “But we’re demanding changes to make sure it works that way.”