The Bail Industry and the Criminalization of Poverty in North Carolina

In theory, debtor’s prisons in the United States have been abolished long ago.  In practice, however, the criminalization of poverty is a common problem.  North Carolina is no exception.  Not only are people often jailed for the inability to pay court fines and fees, but they are often subject to the arbitrary and unnecessary imposition of bail that they are unable to pay.  As a result, defendants are often held in jail for minor charges regardless of a lack of danger to the public or flight risk.This runs contrary to North Carolina law.  Despite the supposed presumption of innocence in the United States, people are jailed without having been found guilty of a crime simply because they are poor.

Being incarcerated even for a short time can wreak havoc on individuals, families, and communities.  It can lead to loss of employment, loss of parental rights, and loss of housing.  It destabilizes people who are already likely to face precarious financial situations.

The for-profit bail industry provides options for some individuals who are able to pay a bail bondsman, but can lead to exploitation and debt.  Paying a bail bondsman will allow an individual to pay only a small fraction of their bail, which is guaranteed by the bond company.  Bail bondsmen tend to favor higher paying defendants, so that defendants with lower bail are unable to find some who are willing to engage with them because it is not profitable.

Of North Carolina’s 100 counties, 22 have pre-trial release programs that help save money that would otherwise be invested in jailing people.  These programs work with courts to allow release of individuals who do not present a flight risk or danger to the community, are first time defendants, or are facing less serious charges.  The programs are largely funded by nonprofits but also by the individual counties.  Unfortunately, the bail bond industry has made efforts to limit or eliminate pre-trial release programs.  The industry possesses a great amount of political power.  It has made copious amounts of political contributions to lawmakers, some of whom are bail bondsmen themselves.

Thankfully, local North Carolina civil rights groups have not chosen to stand by idly while the rights of poor justice involved individuals are being compromised.  A coalition of groups has begun meeting to exchange ideas, to share successes in the fight against the bail industry, and to strategize for ongoing work.  To name just a few, the coalition includes the Carolina Justice Policy Center, the North Carolina ACLU, the North Carolina Justice Center, Southerners on New Ground, the Center for Community Self-Help, and the Center for Responsible Lending.

At the February meeting, Southerners on New Ground presented about their involvement in the national Mama’s Day Bail Out.  This event involved bailing out Black mothers to bring them home in time for Mother’s Day.  The event drew national attention to the plight of individuals who are too poor to pay their own bail, as well as to the effect that their incarceration has on their families and communities.In Durham, SONG bailed out 14 women from the Durham County Jail.  To celebrate Black August, SONG bailed out 9 more women.  These bail out events are part of a strategy to push for various reforms.  SONG is calling upon key decision-makers to stop incarcerating people based on their finances, to allow for careful and individual pretrial decision-making that allows for community input, and to assesses people’s needs to get back to court in order to invest in meeting them.

Other organizations in the coalition are doing work ranging from researching the impact of the bail bond industry, researching and drafting model legislation, litigating, and pushing for policy reform.  The Carolina Justice Policy Center is proud to be working alongside these organizations to help stop the criminalization of poverty in North Carolina.  We hope to serve as a resource for you as you get educated about this issue, so that you can stay informed about how you can join us in this struggle.

Democracy NC Provides Voter Information Cards for Women

Inspired by the 2018 Women’s Marches focused on taking women’s “power to the polls”, Democracy NC has created “Women Vote in 2018” postcards for distribution. The cards feature important information about this year’s justice elections, including elections of sheriffs, judges, and district attorneys in 2018. Postcards should arrive a few days after submission of an order and are provided for free. For a preview of the postcard, click here.

Charges Dismissed After Prosecutors Hide Evidence

While prosecutors have a large amount of discretion in their work, they are not permitted to hide evidence that could be exculpatory for a defendant.

In a recent Colorado case, prosecutors possessed two reports that that pointed to other suspects since the beginning of the case, yet disclosed them 15 months after defendant David Bueno was convicted.

Bueno and codefendent Alex Perez were charged in 2004 with the stabbing death of inmate Jeffrey Heird at Limon Correctional Facility. The state sought the death penalty against them.

Defense attorneys had specifically asked for evidence relating to the other suspects mentioned in the report. The Colorado Supreme Court upheld the dismissal of charges against Bueno and Perez.

Such prosecutorial misconduct is an example of the importance of holding prosecutors accountable both in the courtroom and at the ballot box.

Judge Makes Racist Remark at Law School

Serving as yet another example of the importance of making informed decisions when choosing judges at the ballot box, a judge made an appalling racist statement during a speaking engagement at a law school. While delivering a lecture on mediation and negotiation at the University of Calgary, Justice Kristine Eidsvik told the class that she felt uncomfortable walking into a room “full of big dark people” during dispute resolutions and that she was used to being in an “ivory tower” where she was “removed from the riff raff.” Judge Eidsvik was serving as the school’s judge in residence for the academic year. She later apologized for her comments.

Judges have the power to profoundly shape the criminal justice system. Given that racial bias is an issue at various levels in the criminal justice system, it is imperative that voters choose candidates who value racial equity. Eidvik’s shockingly overt racism poses a serious threat to justice, and judges with ideas like this cannot be tolerated.

ACLU Report Exposes the Rise of Debtor’s Prisons

by Molly Riesenberger

The ACLU report, “In for a Penny: The Rise of America’s New Debtors’ Prisons,” presents the findings of a yearlong investigation into “debtors’ prisons,” exposing how poor defendants are increasingly being jailed for failure to pay legal debts that they cannot afford. Flashback to 1983 – The Court ruled in Bearden vs. Georgia that imprisoning a defendant who was unable to pay his debts, despite bona fide efforts to do so, violated the Equal Protection Clause of the Fourteenth Amendment. It further held that a judge must determine whether the defendant has the ability to pay the debt, but “willfully” refuses. Today, courts nationwide habitually ignore the precedent established by Bearden vs. Georgia. In fact, states now collect legal debts more aggressively from men and women who are financially unable to pay than from those with the means to do so. The report unearths the damage that debtor’s prisons do to citizens, the economy and the criminal justice system.

The ACLU investigation focuses on legal financial obligations (LFOs), which is a general term describing “all fines, fees and costs associated with a criminal sentence” (ACLU). While LFOs are seen as essential revenue to the courts, there is not data showing that their efforts to collect debts actually generate income – in fact, incarcerating those unable to pay ends up costing states even more than unpaid legal debts.

LFOs disproportionally hurt racial and ethnic minorities, as they are disproportionally represented among the prisoner population. The U.S. Court of Appeals for the Ninth Circuit acknowledged that there is racial bias in the criminal justice system – African-Americans and Latinos in Washington State were excessively arrested for drug possession, more likely to be searched, and less likely to be released without bail than those who are white. According to the ACLU report, “These same disparities extend to the assessment of LFOs: In Washington, Hispanic defendants generally receive higher LFOs than white defendants convicted of similar offenses, and persons convicted of drug offenses receive significantly higher LFOs than those convicted of violent crimes” (ACLU).

The result of LFO collection is a two-tiered system of justice: the poorest defendants are punished more severely than those with financial means. Ironically, the poorest defendants are the ones who ends up paying much more in fines and fees that those who can afford their LFOs. For example, in Washington state, all unpaid legal debts are subject to 12% interest (ACLU). This eventually turns into a lifelong debt – a typical criminal defendant with an average LFO that makes a monthly payment on that LFO would still have a legal debt 30 years post-conviction.

The ACLU came up with a list of recommendations for state and local officials to remedy some of the most serious debtors’ prison abuses:

  • Defendants should not be incarcerated for failure to pay LFOs that they cannot afford – the court must consider if the defendant is able to pay and then decide if the failure to pay is willful.
  • States should repeal any law that results in poor defendants being punished more severely than defendants with means, and there should be consistent guidelines for assessing LFOs.
  • Judges should receive training in the determination of defendants who cannot afford to pay prior to incarceration. Furthermore, judges should appoint counsel to defendants at proceedings to determine LFO sanctions.
  • Defendants should be given the opportunity to repay their debts through alternative methods, such as community service.
  • Data should be collected about LFO collection in each jurisdiction – the costs of collection, how collected funds are distributed – broken down by race, crime and location.
  • Court should be funded enough so that they do not need to collect LFOs.
  • The government should hold oversight hearings on the rise of debtors’ prisons.


Cyclical injustice results when our system incarcerates the impoverished, while allowing those with greater means to serve their sentence by simply signing a check.

The New Law and Order: Working Towards Equitable and Community-Centered Policing in North Carolina

The North Carolina Commission on Racial and Ethnic Disparities (NCCRED), the Wake Forest Journal of Law & Policy, and the Wake Forest School of Law Criminal Justice Program, present “The New Law and Order: Working Towards Equitable and Community-Centered Policing in North Carolina” on Friday, Nov. 3, 2017, from 9 a.m. to 4:30 p.m., in the Worrell Professional Center, Room 1312. The event is free and open to the public. Four hours of Continuing Legal Education (CLE) credit from the North Carolina Bar Association has been approved.
Click for more information on the event and registration.