Jeff Nehring has been a criminal defense attorney in North Dakota for more than 20 years. He’s seen a few things.
Weeks ago, he was watching courtroom business on the western side of the state, working with a defendant who had been charged with a drug offense. Nehring didn’t say her name, but described a “minimal” criminal history — someone who had always shown up for their court dates. Before their moment came, another defendant appeared, someone that Nehring said had a lengthy rap sheet and had missed multiple appointments with the court.
In both cases, Nehring said, prosecutors asked the judge to set bail at $10,000.
“Which I think illustrated the point that, I don’t think prosecutors every time aren’t looking at the specifics of each case,” he said. He pointed it out to the judge, who settled on lower bail for his client at about $2,500. But it still meant that his client would have to come up with as much as $500 — or 20% of bail — to post bond.
“It is unduly burdensome on criminal defendants for how high the bail (is often) set,” Nehring said. “Oftentimes it’s a decision for that defendant between spending that money and hiring an attorney.”
Nehring’s example captures a question facing criminal justice experts around North Dakota and around the country. According to 2016 federal statistics, roughly half of American adults would struggle to cover a $400 emergency expense — by borrowing the money or by selling something — or simply wouldn’t be able to afford the cost. Experts say that often means citizens who haven’t been convicted with a crime sit in jail unable to buy their freedom, often wreaking havoc on the lives of defendants who are forced to miss work and their families.
How do leaders make sure the accused are motivated to come to court — without creating a policy that affects the rich far less than the poor?
“A wealthy person will have the same bail as someone who doesn’t have a lot of money,” said Nehring, who is the president of the North Dakota Association of Criminal Defense Attorneys. “There’s definitely a disparity caused in a different income bracket. I just think the bail system’s very punitive in nature, because you’re essentially buying your freedom.”
The practice can also clog local jails. Andrew Frobig is the administrator for the Cass County jail, which he said is has been “flirting with capacity for several years now.”
“If somebody doesn’t post bail, you’re talking about upwards of 100 days or so for that whole case to work its way through the (court system),” Frobig said. “Poverty is absolutely a driver of this, because people have an inability to pay the cash bail, and (if) court won’t adjust that any further from the first time they set it, then they’re stuck sitting in jail.“
And according to a May report from the Council of State Governments, North Dakota had 200.7 unconvicted jail inmates per 100,000 residents between age 15 and 64. That statistic comes from 2015, the report states — the most recent report available.
It’s an issue leaders around the country are grappling with. In California, British newspaper The Guardian reported in 2017 that county bond schedules varied wildly from county to county, recommending anywhere from $75 to $10,000 bond for public intoxication. Cash bail was eliminated in a bill signed by then-Gov. Jerry Brown in Aug. 2018, but the plan has since been put on hold as the state prepares for a 2020 referendum on the policy. Other states, though, like Colorado, Nebraska, Indiana and more, have begun pursuing bail reforms — whether that’s eliminating the practice for low-level offenders or researching how to predict which defendants are prone to miss a court date or commit a new crime.
There’s an open discussion on the future of cash bail in North Dakota. An American Civil Liberties Union report on the state criminal justice system recommends nixing it altogether.
“After even a short stay in jail, taking a plea deal sounds less burdensome than losing everything,” the ACLU report states, “which is likely why evidence shows that pretrial detention significantly increases a defendant’s risk of conviction.”
But the process toward bail reform is moving more cautiously. Rep. Karla Rose Hanson, D-Fargo, points toward a “pilot program” funded in the state Department of Corrections’ 2019-21 budget that allocates $755,000 to to fund a small program exploring how the state can create a new system. Because the implementation of the project is still in its early stages, Hanson declined to speculate what policy changes might emerge from the process, but said it’s an important early step towards building a new system.
There are other groups closely watching the state’s criminal justice system.
North Dakota District Judge Judge Gail Hagerty acknowledged the debate over the cash bail system’s future in an interview recently. She said she’s a member of the Uniform Law Commission — a group that drafts statutes and offers them to legislatures to help keep laws similar across state lines. As a member, she said, she’s helping work on a draft law that could cut back on the use of cash bail, and could offer alternatives like a citation or court summons instead of arrest for low-level offenses. That process is roughly a year away from a finished draft, she said.
“I think what you want to do is avoid having a disparate impact on poor people,” she said. “So if i was arrested and requested to pay a $200 bond, that wouldn’t be a big deal. But for someone else, that might be completely out of reach. So that person might spend time in jail because of an inability to post bond.”