WTF: Bail bond intricacies explained

According to data from the Asheville Police Department, violent crimes — primarily aggravated assaults — increased 17.4% between 2021 and 2022. This, along with numerous instances of repeat offenders committing more crimes while out on bail, has led some people to question the effectiveness of the judicial system in Asheville.

APD Chief David Zack says his department often arrests the same people over and over again, primarily because of low bail amounts for repeat criminals.

“There has been a recurring problem where people charged with crimes are bonded out and then commit more crimes while they’re out on bail,” Zack says. “It is like a revolving door at the magistrate’s office. Getting support for people is what we all want, but I don’t think the answer is just to turn them back out into the street.”

The latest edition of Xpress’s WTF — “Want the Facts?” — series looks at the procedures, issues and future of the bail system in Buncombe County.

What is the process for setting bail in North Carolina?

Bail is a refundable payment that allows defendants to get out of jail until their court dates. The payment is used as collateral to ensure the defendant will return to court for trial or other court proceedings. If the defendant shows up for court, the bail is refunded by the court. However, if the defendant does not show up for court, the court keeps the money, and an arrest warrant is issued.

According to the N.C. Department of Justice, the sole purpose of bail is to act as a guarantee that a defendant will show back up to court. Bail is not intended to act as a punishment, as the defendant is presumed to be innocent pending trial.

A bail hearing is usually held within 48 hours of a suspect’s arrest. A magistrate examines the details of the case and the seriousness of the crimes and sets the bail amount. From there, defendants can either pay the bail in full or hire a surety, typically referred to as a bail bondsman, to pay the fee on their behalf. In the latter case, the bondsman enters an agreement with the court, known as a bond, to pay the bail amount in full if the defendant does not show up for any trial hearings.

Bondsmen charge a nonrefundable fee, typically 10%-13% of the total bail amount, for their services. If the defendant fails to show up for any and all court dates, then the bondsman will seek the full bond amount from the defendant.

How is a bail amount determined in North Carolina?

Generally speaking, magistrates preside over bail hearings and make decisions depending on the crime. They consider the severity of the crime, the character and history of the defendant as well as whether the defendant may pose a threat to society if released while awaiting a court date. Magistrates are not judges. They are independent judicial officers of the court. Magistrates are not required to have law degrees.

While several districts in North Carolina have suggested bail amounts for certain charges, bail in Buncombe County is determined solely by the judicial officer presiding over the hearing on a case-by-case basis, according to the Buncombe County Magistrate’s Office.

Buncombe County District Attorney Todd Williams notes that while his office does not set bail, prosecutors often request specific bail conditions. “While prosecutors may not appear before magistrates, prosecutors can advocate for victims and public safety before judges,” says Williams. “Prosecutors can file motions requesting certain conditions of bail to be set, reviewed and modified by a judge to ensure public safety and the defendant’s appearance for trial.”

What are the issues with bail bonds?

The bail system of North Carolina has been criticized as being ineffective. In its 2015 recommendations to the North Carolina court system, the N.C. Commission on the Administration of Justice and Law, a state-sponsored commission composed of North Carolina judges, lays out two primary issues with the bail system. In most cases, the only option for detaining highly dangerous defendants is to set a very high secured bail. However, if such defendants have enough financial resources, they can essentially buy their way out of confinement, posing a threat to the public.

Conversely, setting a bail that is too low or setting an unsecured bail, meaning that the accused only have to pay if they fail to show up to court, creates the opportunity for some repeat offenders to commit crimes while awaiting trial.

How will new legislation affect the bail process?

Recidivism is not unique to Buncombe County. Law enforcement agencies and district attorneys across the state have voiced concerns about bonds for certain serious offenses. In an effort to quell these concerns, Gov. Roy Cooper signed House Bill 813, known as the Pretrial Integrity Act, into law on July 7. The law went into effect on Oct. 1.

The act, which received bipartisan support, takes away the responsibility of magistrates to set bail for certain offenses. Instead, judges will determine bail for a person charged with specific violent crimes, or if bail should be refused. Additionally, the law specifies that individuals who are rearrested while on pretrial release must go before a judge rather than a magistrate to receive new pretrial conditions. If the judge doesn’t make a determination of conditions of release within 48 hours, it goes back to a magistrate to set the conditions.

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About Chase Davis
Chase Davis is an Asheville-based reporter working for Mountain Xpress. He was born and raised in Georgia and holds a Bachelor's degree in Political Science from LaGrange College. Follow me @ChaseDavis0913

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One thought on “WTF: Bail bond intricacies explained

  1. Spike

    “Bail” is not defined as money. “Bail” means release. If you are bailable, it means you’re ok to be released before trial, and a financial release condition (aka money bond) is just one option. Look it up.

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