Cash bail, whereby prisoners have to fork up money, pretrial, to buy their temporary freedom is a concept as old as the most rudimentary of justice systems. But only recently in the United States have we come to seriously scrutinize a system that has racism baked into it at every level. 

In the weeks following George Floyd’s murder and the beginning of Black Lives Matter protests, Governor Roy Cooper created the Task Force for Racial Equity in Criminal Justice. The task force, which included Orange County District Attorney Jim Woodall, submitted to the governor in December more than 100 recommendations to make the justice system more equitable, including one to eliminate cash bail for certain low-level charges.

“A criminal justice system that allows different outcomes for people of color needs change and these recommendations begin to help chart a more equitable course,” Cooper said in a statement following the report’s release.

But Orange County was already implementing several of the recommendations to the pretrial process outlined in the report. By January, the county added two more. The newest additions to Orange County courtrooms are efforts to understand the person behind each case, not just the crime they’re charged with committing.

“We’ve done a ton of work over the last five years to make sure that we were instituting best practices within our own work as a pretrial agency,” Caitlin Fenhagen, director of the Orange County Criminal Justice Resource Department, told the INDY. “But our stakeholders here have been doing things differently than a lot of places for some time.”

Fenhagen came to the Orange County justice system in 2015, when the Criminal Justice Resource Department became a separate government entity. Race is an even clearer factor in Orange County—while the area is over 75 percent white, more than half of the inmates currently in the county jail are Black men. The area’s unhoused population is also majority Black.

To try to combat the weight of race and class, Orange County implemented a questionnaire for magistrates who determine whether or not to hold someone in jail on bond. A person arrested on a non-violent misdemeanor ranging from Class 1 to Class 3 has the opportunity to be released while they await trial, with a written promise to show up to their first court appearance.

The system appears to be working: the Orange County Corrections Center has fewer than 50 people currently sitting in jail, nearly all of whom have already had their first court dates. This time last year, there were more than 80. The county also dropped charges in 1,500 cases in 2020, according to media reports. Woodall says these were mostly traffic violations and low-level misdemeanors. Instead of arrests, the county is encouraging law enforcement to issue citations.

Anna Richards, the former president of the Chapel Hill-Carrboro NAACP, says this could be because of COVID-19’s impact on protocol.

“The influence of COVID, along with the influence of engaged members of the community and advocates, has made a difference,” Richards says. Aside from the county government’s years-long work on pretrial justice, the county’s two NAACP chapters and several religious groups formed the Orange County Bail/Bond Justice Project in 2019 to advocate and provide some financial assistance.

The county’s current focus is on why some folks may not show up for their first court appearances, something Professor Jessica Smith at the UNC School of Government says is “quite new” for North Carolina.

People may miss their first appearances for a number of reasons: not being able to get time off work, not having a car, or losing track of the court date. Normally, an arrest warrant is made and a bail is set; now, magistrates have a way to evaluate the person.

“It’s essentially a more nuanced approach for dealing with missed court dates,” Smith says. “The judge always has discretion to have the harshest sanction for that missed court date—nothing about this dictates what the judges do—but it encourages the judge to consider whether there’s good cause, and if this is a first missed court date in a lower level case.”

Despite the strides in Orange, Richards says that determining “progress” is based on your frame of reference.

“Leading the state of North Carolina, it’s still North Carolina,” she says.

Some members of the General Assembly are pushing for reform at the state level, too. Representative Marcia Morey (D-Durham) has drafted four criminal justice bills for the N.C. House since the start of the 2021 session—one about when cash bail is used, one about how soon someone is seen by a judge after being brought into custody, and two about how we try juveniles. Orange County Representative Verla Insko has sponsored all four. 

“As a former judge, I saw too many people spend weeks in jail simply because they could not afford a $500 bond or 15 percent of a posted bond to pay a bondsman on minor charges like trespassing, shoplifting, simple possession of marijuana,” Morey said in an email.  “By the time the person came to court, they had already served more time in jail than a judge would have sentenced them to.”

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