North Carolina’s judicial system has been under heavy scrutiny in the wake of the recent murders of Iryna Zarutska and Logan Frederico. Bail policies have especially been under a microscope, since in the state of North Carolina, magistrates are not required to check an arrestee’s criminal history, and have no guidelines for setting bail bonds.
While Iryna’s law (HB 307), which was passed on Sept. 23 by the North Carolina General Assembly and signed into law by Gov. Josh Stein, does make changes such as eliminating cashless bail and tightening pretrial release conditions for repeat offenders, experts assert that many changes are still needed.
“Two critical needs would be to implement a statewide, systematic bail/bond guide (a standardized, evidence-based reference with offense categories, recommended bail ranges, and risk factors) and mandate that all magistrates in North Carolina conduct a criminal background check of each arrestee brought before them,” wrote William Allen, government affairs associate, for the John Locke Foundation.
The current process for setting bail in North Carolina is based on judicial discretion and often involves insufficient data. Allen believes this system can lead to inconsistencies in setting bail amounts, the release of repeat offenders, and other public safety concerns. While some counties do have policies regarding bail ranges, judicial discretion still plays a significant role.
“Iryna Zarutska’s murder was a wakeup call,” Jon Guze, senior fellow of legal studies for the John Locke Foundation, told the Carolina Journal. “We need to upgrade our systems for protecting public safety in North Carolina, including by providing better training, better support, and better supervision for magistrates.”
During a bail hearing, the judge or magistrate assesses public safety concerns, the defendant’s risk of failing to appear in court (flight risk), and arguments from the defense related to community ties, employment, and the specific circumstances of the case. Before setting a secured bond, the judge or magistrate must first consider less-restrictive alternatives and document the reasons for requiring a secured bond, particularly when such a bond is mandated by local policy. The decision is then recorded on the “Conditions of Release and Release Order” (AOC-CR-200) form, completed by both the judge or magistrate and the defendant.
Magistrates sometimes claim they do not have time to check an arrestee’s criminal histor; others choose not to do so. Magistrates can set bail in a matter of minutes in many counties without knowing an arrestee’s criminal record. This lack of knowledge puts both victims and communities at risk, according to critics. These critics also say implementing a statewide, systematic bail/bond guide for magistrates and requiring them to verify that they have checked an arrestee’s criminal history when making decisions would significantly reduce these risks.
Allen’s proposed bail and bond guide aims to improve consistency and fairness in bail decisions while enhancing public safety by ensuring that prior violent offenses are carefully considered. It seeks to mitigate judicial liability and minimize errors in the decision-making process to promote a more reliable and transparent system. Additionally, the guide supports data-driven justice to prevent the use of arbitrary bail amounts and works to eliminate any potential for racial or other forms of bias in bail determinations.
“Iryna’s law is just the beginning of what will be a long period of reform,” Jeanette Doran, constitutional studies counsel for the John Locke Foundation, told the Carolina Journal. “Proposals to create both a systematic statewide bail guide for magistrates and a framework ensuring that magistrates consider each arrestee’s prior criminal history will likely play an important role in any reform. The public probably assumes these basics have always been a part of the bail system, but they haven’t been.”
Concerns with reforms may arise regarding issues of time and cost, judicial discretion, and technology gaps. Allen believes that while background checks can make first appearances take longer, this must be balanced with the cost of not running background checks and thereby not making fully informed decisions. Rather than stripping officials of power and judicial discretion, these reforms would enable greater transparency and accountability for magistrates.
“The AOC-CR-200 forms could be amended to include a box for magistrates to check to attest that they conducted the background checks, on penalty of reprimand, removal, or even a Class 1 misdemeanor for failing to complete those duties,” wrote Allen.
To make this possible, Allen believes all magistrates’ offices should be equipped with state-of-the-art technology to enable them to conduct comprehensive background checks on arrestees promptly. The proposal calls for magistrates to be offered training in the use of a bail/bond guide.
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