A lot has changed in Durham since 2011, the last time the county revised its pretrial-release policy. Local leaders have unified around issues of social justice and equity. Voters have become overwhelmingly Democratic, increasingly progressive, and oftentimes activist. Last year, reform-minded challengers overthrew Democratic incumbents in races for county sheriff and district attorney, the latter pledging to curtail the use of cash bail. 

Watching this unfold, Superior Court Judge Orlando Hudson decided the pretrial-release rules could use another rewrite. In February, he and District Court Judge Pat Evans unveiled their update. But their new policy didn’t elicit cheers from reform advocates. Instead, the day after the new policy was filed, protesters gathered outside of the Durham jail to condemn it. 

The problem, they argue, is twofold: First, they say, the policy doesn’t do enough to end or reduce money bail. Second, they worry that language in the policy effectively criminalizes mental health and substance abuse problems.  

They point to two words on page five of the twelve-page document: “sound mind.”

Magistrates and judges, they say, could reject some pretrial-release options for people they deem to not be of “sound mind”—whether that’s due to mental illness, substance abuse, or simply odd behavior in the courtroom. 

Hudson and Evans say that’s not the intent. They deny that the policy goes beyond what’s already in state law, and say that, because the state’s mental health care system is underfunded, judges are already making decisions about whether those appearing before them are of “sound mind.” 

Reform advocates don’t buy it. 

“I think it just really gives them broad discretion to find a way not to release somebody,” says Cristina Becker, a staff attorney with the state ACLU.

Both the new and old policies mirror state law. What’s changed are adjustments to suggested bond amounts for different crimes, a new checklist that magistrates must use to make pretrial-release decisions, and the elimination of an introduction describing the purpose of bail, which Hudson says was only there to remind political actors that bonds are only supposed to ensure court appearances, not deter crimes. 

And then there’s the “sound mind” clause, embedded in the definitions of two options judges have in setting pretrial-release conditions: release on a written promise and unsecured bond, which only has to be paid if a person doesn’t appear in court.

The policy recommends a written promise release for defendants who are “of sound mind, have strong ties to the state,” and are charged with a misdemeanor. The recommendation for an unsecured bond is similar, dropping “strong ties to the state.” 

The phrase originates in Guilford County’s 2010 bond policy, and has since been adopted by Forsyth, Cumberland, Rockingham, and now Durham Counties. It’s not unusual for jurisdictions to directly lift language from each other’s bail policies—that preamble to the 2011 policy describing the purpose of bail came from Cumberland, for example. That’s how Hudson says the language ended up in Durham’s policy, by following the lead of a “similarly situated” jurisdiction.  

Even so, ACLU attorneys say they’ve never before seen that phrase in a local bail policy. (That civil liberties attorneys were previously unaware of wording in place in a large North Carolina county for nine years might indicate that it hasn’t posed much of a problem, or at least that the phrase itself hasn’t been identified as the problem.) There’s no definition of “sound mind” set out in the policy, or in state statute. And while those words appear in North Carolina law, they do so in the context of mental health treatment, end-of-life decisions, and wills.

“It certainly doesn’t give [judges] any guidance as to what they should do if they determine that someone has mental health issues,” Becker says. “Does that mean they continue to incarcerate them? Does that mean they should look for alternatives, like a behavioral health center? Should they send them to a hospital? A lot of the problem is, where do you go from there?”

Hudson says “sound mind” is only intended to refer back to state statute, which says judges must consider “on the basis of available information” factors including a defendant’s mental condition and level of intoxication in choosing a pretrial-release condition. Pointing to a definition in Black’s Law Dictionary, he disagrees that the phrase would give judges broad discretion to detain people.

But as critics point out, judges and magistrates are not mental health professionals. While state law says judges should consider a defendant’s mental condition among other factors, it doesn’t require them to make a determination of whether the person is mentally fit, as the language in Durham’s policy would appear to do, Becker says.

Under the policy, defendants who are deemed mentally unsound or dangerously intoxicated would be recommended for supervised custody by another person or organization. Evans says magistrates would look at whether their safety is at risk and could either release them with an unsecured bond—although, according to the policy, this is recommended for people of “sound mind”—or have them involuntarily committed. If they remain in custody, when their case comes up for review, judges would look for caretakers or case managers to supervise them.

Evans questions how instructing judges to weigh mental health could be harmful. 

“We know our community,” he says. “We know when the same people are coming down every night, and we see them in court, and they can’t contain themselves.”

Still, critics worry that mental illness—or the perception of mental illness—could be a barrier to pretrial release.

“We know being incarcerated, especially in a jail where there is a dearth of mental health services, tends to exacerbate mental health issues,” Becker says.

More broadly, groups like Southerners on New Ground, which launched a campaign in 2018 to end money bail in Durham and across the South, and the state ACLU say the new policy does little to ensure that wealth isn’t a barrier to release, either. 

District Attorney Satana Deberry, who defeated incumbent Roger Echols last year on a criminal justice reform platform, disagrees. After the policy was released, she issued a statement applauding it as a step toward a system “in which detention is no longer wealth-based.”

While the state statute cited in the policy instructs judges to consider a person’s finances when considering pretrial-release options, the policy itself doesn’t tell them to inquire into a defendant’s ability to pay or how to go about doing that.

“This is not something that is necessarily extremely progressive,” Becker says. “What’s going to determine whether or not this is reform is how it’s going to be executed in the courtroom. Right now, these are basically our state bail policies.”

Under the policy, if Durham magistrates determine that a secured bond is necessary, they’re directed to a revised bond schedule suggesting what amount to set. Hudson and Evans replaced specific amounts in the old policy with ranges, some starting at $0. In most instances, the new range is either partly or entirely lower than the old figure, although the policy raises the suggested upper limit for lower-class felonies and no longer recommends a written-promise release for class-two misdemeanors. 

“The people that are marching up and down saying we have all these people who can’t afford bonds that are sitting in jail—that’s not so,” says Evans. “We’re looking carefully at everyone over there. You’re not over there because you’re poor. That’s not the case now. It has been, maybe in prior years.”

The population at the Durham County Detention Facility has been declining for years and recently reached a record low of 384 detainees. Still, as recently as 2016, a quarter of the people who passed through the jail were held on bonds of $5,000 or less, as the INDY previously reported. 

Hudson says the policy is focused on guiding magistrates, who don’t necessarily have legal training or expertise, as well as giving judges the discretion to weigh each case. He says the policy does discourage money bail because the checklist magistrates follow doesn’t list cash bonds—which have to be paid in full and in cash—as an option. It does, however, let them set secured bonds, in which a defendant pays a non-refundable fee—usually 10 or 15 percent of the bond amount—to a bail bondsman, who covers the rest. 

Hudson concedes that a secured bond could still pose a financial barrier to release, but he says secured bonds are “much fairer” than cash bonds. 

But the state ACLU sees both options as part of the same problem. Spokeswoman Molly Rivera says that neither cash bonds nor secured bonds are fair because both tie freedom to wealth, not public safety. Secured bonds, she says, are “even more egregious” because they often force people to pay a non-refundable fee to a “predatory” bail bonds industry. 

Hudson agrees that judicial officials in North Carolina rely too heavily on secured bonds, which, according to state law, are supposed to be a last resort. 

“That’s what has to change in the state of North Carolina,” Hudson says. “It’s probably not going to change through legislation. It has to change through practice. So that’s what we have tried to do with changes in our new bond system. I don’t think we can eliminate, as judges, cash bonds. But we can certainly de-emphasize them.”

Contact staff writer Sarah Willets by email at swillets@indyweek.com, by phone at 919-286-1972, or on Twitter @sarah_willets.