North Carolina: Mecklenburg County District Attorney Spencer Merriweather, III Calls For The Federal Bail System, Which Will Increase Mass Incarceration, Not Reduce Crime, And Bankrupt The State Of North Carolina

Mecklenburg County District Attorney Spencer Merriweather believes in preventative detention policies, those that allow denying bail altogether, and wants them to come to North Carolina.  In a recent press conference reported on by 3WBTV, Merriweather thinks such policies are fairer to the poor and will serve to reduce mass incarceration.

The plan? Merriweather wants “end money bail” and force the legislature to expand the power of judges to deny bail altogether, which he says will be a fairer system.  Indeed, in a self-fulfilling prophesy when DA Merriweather argues everyone should be let out for free, this will simply feed the argument that he needs greater power to detain.  Instead, what he really needs is a history lesson and to go into court and seek reasonable bails when necessary.

First, in peer-reviewed research, it has been established that the federal system, since implemented in 1984, has nearly tripled the rate of pretrial incarceration.  In 1983, 24% of defendants were held pending trial on a combination of unposted bails and detention without bail.  Today, a staggering 72.8% of defendants are held without the possibility of release on bail.  Merriweather directly calls for such policies, saying he trusts judges and apparently himself to not over-use it.  Detaining defendants at such a rate will increase mass incarceration and bankrupt the State of North Carolina.

Further, a noted article in this field has proven for a generation that preventative detention policies simply do not reduce crime.  Eliminating bail, Merriweather says, is needed because we need to improve public safety.  But, preventative detention policies do not work.  According to an article entitled Preventative Detention: A Constitutional But Ineffective Means of Fighting Pretrial Crime, the author points out, after reviewing a variety of literature and court opinions, that “Justice [Thurgood] Marshall, Judge Mack, and Professor Ewing have persuasively argued that preventive detention is an inaccurate method of fighting pretrial crime.”

A generation ago, Judge Amalia Kearse, writing for a divided panel of the U.S. Court of Appeals for the Second Circuit, articulated why the Bail Reform Act of 1984 is a civil rights atrocity in holding it unconstitutional, an opinion later reversed in an opinion written by then-Chief Justice William Rehnquist:

The system of criminal justice contemplated by the Due Process Clause ... is a system of announcing in statutes of adequate clarity what conduct is prohibited and then invoking the penalties of the law against those who have committed crimes. The liberty protected under that system is premised on the accountability of free men and women for what they have done, not for what they may do. The Due Process Clause reflects the constitutional imperative that incarceration to protect society from criminals may be accomplished only as punishment of those convicted for past crimes and not as regulation of those feared likely to commit future crimes.

In dissent, Justice Thurgood Marshall also explained why preventative detention policies were antithetical to our constitutional tradition of the right to bail:

This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution.

….

Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day, the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.

 

Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be "dangerous." Our Constitution, whose construction began two centuries ago, can shelter us forever from the evils of such unchecked power. Over 200 years it has slowly, through our efforts, grown more durable, more expansive, and more just. But it cannot protect us if we lack the courage, and the self-restraint, to protect ourselves. Today a majority of the Court applies itself to an ominous exercise in demolition. Theirs is truly a decision which will go forth without authority, and come back without respect.

History has proven that opening the door to detention policies is to extinguish the right to bail as the founders have known it.

Is such a system more fair?  New Jersey is experimenting with this new system of preventative detention, and the new system has not reduced racial disparities in the system whatsoever. We suspect, although New Jersey officials will not confirm, that minority groups are getting motions to detain without bail at a higher rate than their white counterparts.  This is important because we are not talking about setting higher bails that may be adjusted under the old system, but extinguishing the right to bail altogether.

The costs associated with going to a no money bail system of preventative detention is another issue lawmakers should be paying attention to.  North Carolina’s population is roughly the same as New Jersey’s.  On a per capita basis then, moving to the New Jersey system will cost the State of North Carolina, on a conservative estimate, to expend $290 million over three years, and roughly a $100 million annually every year after that.

In fact, no state has fallen for Merriweather’s argument since New Mexico sort of did in 2016.  Only two states in the modern era have passed such an expansion of detention policies.  In the past five years, Texas, Colorado, Delaware and several other states have rejected moves to preventative detention polices.  California attempted to expand preventative detention policies, but that move was put on hold.  It was also opposed by the ACLU of California: ACLU of California Changes Positions to Oppose Bail Reform Legislation.

Merriweather now advocates for simply unilaterally ending money bail and letting criminals willingly prey on the community in order to force the issue down the throat of legislators.  If what is going on before his no money bail policy is an example, then you can bet things are going to get much, much worse for the public.

Instead, Merriweather should simply go to court and ask for the appropriate and reasonable bails which are set when a judge analyzes the bail setting factors and determines bail is necessary to secure appearance and protect the safety of the public.  The system we have contemplated by the North Carolina and federal constitutions creates a case by case balance and has served us well on this continent for nearly 400 years.