While it’s apparently not the end of the American Civil Liberties Union lawsuit against Alamance County’s courts and Sheriff’s Office over local bail policy, the two sides agreed on some conditions approved by a federal judge Friday, May 8.

“Under the previous practices, people who were arrested in Alamance County were not guaranteed a prompt bail hearing before a judge, were not given an individualized inquiry into their ability-to-pay, and were not provided counsel,” ACLU lead counsel Leah Kang wrote to the Times-News. “Under the terms of the consent preliminary injunction, the local judges have agreed to change the county's pretrial release policies to ensure that every person gets a prompt bail hearing with an individualized inquiry before a judge where they will have access to counsel.”

Senior Superior Court Judge Tom Lambeth referred questions to the lawyer with the State Department of Justice representing the local courts, who declined to comment on ongoing litigation. The Sheriff’s Office referred questions to County Attorney Clyde Albright, who did not respond to Times-News’ questions about the significance of the agreement.

A federal lawsuit filed in November by the American Civil Liberties Union and Civil Rights Corps singled out the local justice system among all those in the state for having a cash bail system that keeps suspects in jail awaiting trial if they cannot afford to post bond.

Alamance County stood out among other court districts in part because magistrates — who set initial bond amounts — do not as a practice try to determine a defendant’s ability to pay when setting a bond, operating off a set of bond practices laid out in 1995. The county also had the second-highest percentage of misdemeanor defendants held on secure bond last year, and in 2017, 88 percent of misdemeanor defendants were held on cash bond, and 93 percent of felony defendants, according to the suit.

The plaintiffs are still working toward a class-action suit charging county courts with violating inmates’ 14th Amendment right to equal protection, pretrial liberty and due process by incarcerating them because they don’t have money for bail, and Sixth Amendment rights to counsel. But the two sides filed a joint motion for a preliminary injunction setting new bond policies. The defendants – including Sheriff Terry Johnson, Lambeth, Chief District Court Judge Brad Allen Sr., and county magistrates – have not waived any rights or admitted to or denied any allegations.

New policies

Criminal defendants in Alamance County will have hearings before a judge within 48 hours of arrest, or the earliest available session if one is not available in that time, to present evidence and argue for appropriate conditions of release with a lawyer present.

Secured cash bonds will be set so defendants can afford them unless there is a judge’s written finding that pre-trial detention is necessary to make sure the defendant appears at trial or to prevent them from harming anyone, destroying evidence, intimidating witnesses or encouraging them to lie.

Before setting cash bail, judicial officers will have to inquire into the defendant’s ability to pay the full bond amount with the presumption that defendants can’t pay more than 2 percent of their monthly income. The presumption will be that defendants can’t afford cash bond at all if they are eligible for an appointed lawyer, are or have been recently homeless, make 200 percent of the federal poverty rate, are full-time students, have been recently incarcerated, live in a mental-health or other treatment program, or have dependents eligible for a variety of public-assistance programs.

The sheriff will not enforce a secured cash bond keeping someone in jail, according to the agreement, unless they have had an individual hearing. The Sheriff’s Office will also share fairly detailed information about who has been booked into the jail each month with the plaintiffs or the court to monitor compliance. Much of that information is already available in the inmate list on the Sheriff’s Office website.

“This will have a major impact in ensuring that presumptively innocent people are not jailed because of their poverty,” Kang wrote.

COVID-19 concerns

The federal lawsuit is probably the most substantial pressure on the county to change its bail policies, but not the only one. Down Home North Carolina, a liberal activist group often focused on immigration issues and justice-system reform, is pointing to the COVID-19 pandemic as a reason to adopt policies reducing the jail population including minimal use of cash bail and not issuing arrest warrants for low-level offenses and probation violations, according to spokesperson Gwen Frisbie-Fulton. The group started circulating an online petition in April and contacting Lambeth, Allen and District Attorney Sean Boone.

The group also put together a list of several dozen inmates in the county jail held on low-level offenses either with bonds of $2,500 to $10,000, for those held on probation violations, without the option for release. While the group described them as non-violent and low-level offenders, one man was charged with assault on a female and another was charged with firing a gun in the city limits, neither of which is a felony.

Boone told the Times-News the online jail list does not explain the legal reasons behind bond decisions like aggravating conditions or criminal histories. Boone said he met with Superior Court Clerk Meredith Edwards, Lambeth and Allen in March after the Chief Justice of the state Supreme Court limited courthouse operations across the state to reduce the size of the jail population.

“To this end, we asked the Sheriff's Office to have the jail medical staff identify any inmates who were high risk for illness from Covid-19; once we had that list we worked to review bonds and reduce any that the courts deemed appropriate,” Boone wrote in an email to the Times-News. “The net result is that Alamance County has significantly reduced our jail population by over approximately 150 persons since the middle of March.”

There were 247 inmates in the county jail over the weekend, according to the Sheriff’s Office webpage. Under normal circumstances, it is typically just short of 400.

For more than a year, according to Boone, there has been a local policy to hold bond hearings for misdemeanor offenders in the jail within 72 hours of arrest. While court activities have been limited, there are still hearings for jail inmates giving making it possible to dispose of those cases or reduce bonds.

The state prison system stopped taking prisoners from county jails in early April, according to the Department of Public Safety, and extended the moratorium to May 17, so the county is stuck with those convicted of serious crimes for the time being.

The goal, according to Boone, is to reduce the jail population without creating a blanket “catch and release” policy.