Bail Reform in North Carolina—Pilot Project: Early Involvement of Counsel

In prior blog posts I outlined some of the reasons why stakeholders are interested in bail reform and some of the options that are being considered. In this one, I discuss one bail reform pilot project already underway in North Carolina.

In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms is a pilot project providing for the early involvement of counsel in pretrial release proceedings. In a nutshell, first appearance “contract counsel” represent defendants at the first appearance. Covered defendants include those whose highest charge is a misdemeanor or Class H or I felony and those arrested for a probation violation. Contract counsel meet with defendants at the jail and review defendants’ criminal history before the first appearance. Because Judicial District 30B does not have a public defender, this pilot project would not have been possible without the support of North Carolina Indigent Defense Services (NC IDS). Under the program, contract counsel are retained and paid pursuant to contracts with NC IDS. Contract counsel serve only for the purposes noted above; assigned counsel are appointed to represent defendants after the first appearance. The pilot went into effect January 1, 2019.

Why Focus on Early Involvement of Counsel?

In North Carolina, defendants receive no representation at the first pretrial determination, the initial appearance. Because counsel typically isn’t appointed for an indigent defendant until the first appearance, counsel has had no time before then to meet with the defendant, obtain the defendant’s prior record, or prepare a meaningful pretrial strategy. Several reasons motivated Judicial District 30B stakeholders to undertake this reform. First, early involvement of counsel at pretrial proceedings will better inform judges’ pretrial decisions and protect defendants’ rights in light of the significant consequences associated with pretrial detention. See, e.g., Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017). Second, early involvement of counsel is recommended by national standards. ABA Standards for Criminal Justice: Prosecution and Defense Function, Defense Function Standard 4-2.3 (4th ed. 2015) (“A defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”). And third, early involvement of counsel has been specifically recommended for North Carolina. North Carolina Commission on the Administration of Law & Justice, Final Report March 2017: Recommendations for Strengthening the Unified Court System of North Carolina, Appendix D: Improving Indigent Defense Services, at 30 (2017).

Why Limit Counsel to Only Certain Defendants?

As noted, under the pilot program contract counsel are provided for defendants whose highest charge is a misdemeanor or Class H or I felony and those arrested for a probation violation. Why limit the pilot to these defendants? The primary reason is limited resources to pay for the new contract counsel. A second reason is that this reform was implemented as part of a package of pretrial reform initiatives, designed to reduce pretrial incarceration of low-risk defendants for whom detention would do more harm than good. Starting with lower-level offenses seemed a reasonable choice, given the program’s objectives.

Logistically, How Was It Implemented?

After stakeholders identified this reform as a priority for Judicial District 30B, I drafted an Implementation Plan, which I vetted with stakeholders and NC IDS. There were a lot of details to be worked out, including working with local jail supervisors to provide timely jail lists to contract counsel so they would know when they had clients to visit in jail; working with local jail administrators to set aside a private meeting place for counsel to meet with jailed defendants; ensuring that contract counsel would have access to the defendant’s criminal history record before court proceedings; ensuring that contract counsel had access to telephonic interpreter services, as needed, and access to a telephone to use those services when meeting with defendants at the jail; and working with stakeholders to set a consistent time for the first appearances at which contract counsel would be required. Once we had a final Implementation Plan that addressed all of the key issues, NC IDS hired the lawyers and the Senior Resident Superior Court Judge issued a Standing Order providing that the new contract counsel would represent covered defendants at the specified proceedings.

What Is NC IDS’ Role?

Because Judicial District 30B is not served by a public defender office, this reform would not have been possible without the support of NC IDS. To implement this reform NC IDS agreed to:

• Hire, contract, and supervise contract counsel.
• Set payment rates for contract counsel and approve all payments.
• Establish procedures for handling defendants who are arrested on an Order for Arrest for a Failure to Appear and already have assigned counsel.
• Develop contracts specifying performance expectations, including: meeting with the client at the jail before the first appearance; reviewing the client’s criminal history; preparing an intake form for each defendant; and advocating for the client at the first appearance.
• Establish a plan to train contract counsel on pretrial advocacy, as feasible.
• Establish procedures for dealing with conflicts.
• Develop forms and other job tools for contract counsel, such as an intake form to be used during client interviews.

What Glitches Occurred?

Judicial District 30B is a two-county district, encompassing Haywood and Jackson counties. One glitch was that no lawyers from Jackson County applied to serve as contract counsel. As a result, the program began on January 1st with a full complement of lawyers in Haywood County, but none in Jackson. Since then potential lawyers from Jackson County have been identified and conversations are underway to see if the program can be implemented there.

How Will the Pilot Be Evaluated?

The Judicial District 30B reform project includes an evaluation component. In partnership with Professor Jamie Vaske of Western Carolina University, evaluation of this and other reforms is underway. Professor Vaske will be looking at the impact of this procedural change against a set of core pretrial metrics. The evaluation period runs through the end of the calendar year, and Professor Vaske will produce a report to stakeholders after that date. I’ll post an update when we have information from that evaluation.

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