Explained: Pretrial Release

Explained is an occasional series from the Durham DA’s Office providing information and context about the court process.

Pretrial release conditions are conditions that defendants being held in custody on pending criminal charges must meet in order to be released from detention while awaiting trial. In February 2019, the Durham County District Attorney’s Office implemented a policy to guide what conditions prosecutors should recommend judges set. This is separate from the policy Durham judges use when they decide what those conditions should be.

The Durham DA’s Office policy is intended to make public safety, rather than access to money, the determining factor in whether a person is released from detention pretrial or not. The policy aims to ensure that people charged with lower-level offenses are not detained pretrial simply because they cannot afford to pay a bond amount required by the court to secure their release.

This post describes the process of setting pretrial release conditions, the laws that guide that process, the Durham DA’s Office pretrial release policy, and studies about pretrial incarceration.

What is pretrial release?

Before outlining how pretrial release conditions are set, here are a few important things to know about pretrial release:

• Although prosecutors can recommend release conditions, judges ultimately set them. They do this in accordance with North Carolina law and, in Durham, a pretrial release policy for judicial officials.
• Under North Carolina law, most people have a right to have pretrial release conditions set. This means that nearly all defendants must eventually have a bond set, even if they are facing very serious charges.
• In the American criminal legal system, people are considered innocent until proven guilty. That means anyone being held pretrial is legally presumed innocent.
• The U.S. Supreme Court says that incarceration should be a “carefully limited exception” reserved for the most serious cases.
• The U.S. and North Carolina Constitutions prohibit excessive bail (the terms “bail" and “bond" are often used interchangeably.) While state law says public safety should be considered in whether to impose bond, the primary purpose of bond is to secure appearance in court.

North Carolina law gives judicial officials five pretrial release conditions they can set, and instructs them to impose the least restrictive conditions that will protect public safety, ensure the person returns to court, and prevent interference with court process, such as witness intimidation:

(1) Written promise to appear: No money is involved.

(2) Unsecured bond: An unsecured bond does not have to be paid first to secure release, however if the defendant misses court, they may have to pay the amount.

(3) Release to the custody of a designated person or organization for supervision: For example, this could include a parent or a Pretrial Services program that monitors people on pretrial release. No money is involved.

(4) Secured bond: A secured bond does need to be paid or guaranteed in order to secure release. Often people will hire a bail bond agent to back the full amount in exchange for a nonrefundable deposit of about 10 percent of the bond amount.

(5) House arrest with electronic monitoring: A secured bond must also be set if house arrest is imposed.

Here’s how the process works:

If a person charged with a crime is arrested and brought to detention, a magistrate will review the charges and set initial pretrial release conditions. At this point, a prosecutor will not be involved in the case to make a recommendation regarding bond or other release conditions.

If the person remains in custody, their release conditions will be reviewed by a judge at a first appearance in District Court. In Durham, this happens frequently the morning after the arrest. During the first appearance, the judge will consider the charges at hand, criminal history, and prior record of failing to appear in court. At this point, a prosecutor assigned to first appearance court may recommend or agree to particular release conditions depending on the nature of the case.

If the defendant remains in custody as the case progresses, he or she may request a bond hearing for a judge to review the release conditions. At a bond hearing, the prosecutor assigned to the case will likely argue for a particular bond based on the conduct alleged, the safety of the community and any victims involved, and the likelihood the defendant will return to court.

What does the DA’s Office policy say?

You can read the policy for yourself here. While prosecutors can and should consider each case individually, the policy lays out baseline recommendations for different kinds of offenses.

Here’s a summary:

• The policy recommends that people charged with infractions and misdemeanors that do not involve violence or threats of violence be released from custody by signing a written promise to appear in court. Importantly, the policy notes that domestic violence offenses, which are often misdemeanors, are not subject to this recommendation.

Infractions and misdemeanors make up the vast majority of the more than 20,000 charges that come through Durham’s criminal courts in a year. In 2021, 87 percent of misdemeanor charges filed in Durham were nonviolent in nature.

• For felony cases that do not involve violence or threats of violence, the policy recommends two options: release with a written promise to appear or release to the custody of another person or organization.

Most felony charges do not involve violence, either. In 2021, 77 percent of felony charges filed in Durham were considered non-violent in nature. Overall, about 12 percent of charges filed in Durham in 2021 were violent charges.

• For offenses involving violence, the policy says prosecutors may consent to a written promise or custody release with supervision, electronic monitoring, or house arrest, and outlines factors to consider before doing so. The policy also acknowledges that, in some cases, the level of public safety risk is high enough to warrant a secured bond that a defendant is unable to afford. Under the policy, this is generally reserved for Class A through E felonies.

What does research say about pretrial detention?

While some cases warrant pretrial detention, studies have shown it can also have negative effects.

Research has shown that even a few days of pretrial incarceration can jeopardize a person’s housing and employment. Studies have also found that people held pretrial for longer periods are more likely to plead guilty and face harsher sentences. Because pretrial release often depends on ability to pay bail, these consequences disproportionately fall on low-wealth people and on people of color.

A growing body of research — including in Philadelphia, Chicago and New Jersey— shows that use of bail and pretrial incarceration can be reduced without negatively impacting public safety or court appearance rates. By contrast, some research suggests that, for people not at high-risk of offending, pretrial detention can increase their chances of committing new offenses.

Duke researchers examined detention data in Durham to understand the effect of the new pretrial release policies implemented by Durham judges and the DA’s Office in 2019. The analysis found that following these reforms, the rates of high, unattainable bond amounts for nonviolent offenses were lower and the average bail amount was lower. The analysis did not find evidence that the policy changes resulted in an increase in cases involving failures to appear in court. There was also no increase in daily arrests.

Most people do not accrue new charges pretrial and when they do, they usually involve traffic-related or misdemeanor offenses. In Durham, individuals acquired new felony charges pretrial in about 6% of incidents served from 2019 through 2021. Looking only at violent felonies, the rate is less than 2%, according to the Criminal Justice Innovation Lab.