The inequities of the cash bail system are something Orange County officials have long understood.
The county is one of dozens across the state that support pretrial services — a jail alternative system that identifies poor people who are low risks for violence and likely to show up for their court dates and allows them to be released on very low or no bail.
But for more than a decade, the county wasn’t fully committed.
“For fifteen years we had a system that wasn’t part of the county, it was through an outside agency,” said Caitlin Fenhagen, Criminal Justice Resource Director. “It was difficult getting the funding every year.”
The county saw the problem: A county jail filled to capacity, housing people at a cost to taxpayers of $110 a day. The prospect of needing to build a new jail to hold even more people at greater cost.
But it wasn’t really committing the resources necessary to treat the disease rather than the symptoms.
“They didn’t want to build a new jail,” Fenhagen said. “They knew that if you build it larger, you fill it.”
So instead Orange County got serious about reforming its system.
In 2015 it created the Criminal Justice Resource Department. It began as a division of the county manager’s office and last year became its own department.
“We had the great fortune of getting county funding and being given the mandate that we want to see Orange County incarcerating fewer people and doing that the right way,” Fenhagen said.
Bringing together a pretrial release case manager, drug treatment coordinator and criminal case assessment specialist, the department works closely with law enforcement, the district attorney and judges. Its goal: to reduce overall rates of pretrial detention, reduce the numbers of individuals with mental illness in custody, reduce recidivism and address racial and economic disparities in pretrial detention.
Fenhagen has worked as a public defender in Orange County and a defense attorney with the Capital Defender’s office in Durham. She appreciates how crucial pretrial buy-in is from every part of the criminal justice system.
“Our commissioners support this work and our judicial stakeholders who support this work, our law enforcement — we work very closely with the Sheriff’s office, with every stakeholder at every step along the way,” Fenhagen said. “It’s a great place to do this work for that reason.”
Orange County’s experience is the sort of evolution that can happen in all 100 of North Carolina’s counties, said Orange County Commissioner Renee Price.
Realizing that the existing system is expensive and works poorly is a good first step, she said. But realizing just how unjust it is to the most vulnerable and doing something about that should be the ultimate goal.
“When you look at who goes to court and who is sitting in jail, it’s disproportionately people of color,” said Price. “When you look at the demographics in any city and you look at who is in prison and the income level — we know that if you lack the financial resources, you’re getting different treatment. You’re going to jail. You can’t afford to get out.”
Last month, price brought a resolution to her fellow commissioners unanimously supported the 3DaysCount campaign.
The campaign, organized by the national Pretrial Justice Institute, is raising awareness of the shortcomings of the cash bail system. It highlights the terrible impact even short term incarceration can have on those who remain jailed before their day in court because they cannot afford bail.
Price first encountered the campaign at a meeting of the National Organization of Black County Officials, which is helping give energy to a national movement on pretrial justice.
“There are plenty of people of color who have money,” Price said. “But more of our families don’t have that generational wealth and so more people of color lack the funds when it comes to bail, even when the amount might seem small to some people.”
Getting caught up in a poorly functioning justice system can be devastating, Price said — even if someone is ultimately cleared of charges.
“In many places, even if you are innocent — and we’re all supposed to be presumed innocent — if you’re picked up and put in detention on a Friday and you can’t post bail, you sit there for days,” Price said. “You can’t earn money; it affects your family life, your children, your job. It has a very adverse rippling effect on the whole structure of the family and the society.”
If Charles Dickens were alive and writing today, Price said, this would be his subject.
“What we’re doing is re-creating debtor’s prisons,” Price said.
Orange County is very lucky to have a degree of reform buy-in from every part of its criminal justice machinery, Price said. But as the state and the nation begin to rethink various aspects of the criminal justice system — from how veterans and those experiencing addiction are treated to raising the age for charging defendants as adults, it’s increasingly clear that the current default system of cash bail is due for a change.
“I think there’s a breakdown happening now of assumptions about things — race, politics, how we should do things,” Price said. “Things begin to change when someone can say, ‘I have a mental illness in my family’ or ‘I know someone who has suffered because of a drug overdose.’ When people realize that everyone is feeling this pain, they realize it has nothing to do with whether you are a Democrat or a Republican and we have to work together to make these changes.”
In the same way, Price said, more people across the political spectrum are beginning to realize people in their own lives have been harmed by a criminal justice system that privileges wealth and access while creating greater racial disparities.
Public opinion is already heavily in favor of reforming the system along the lines of Orange County’s evolution, Price points out.
“It may not happen all at once, but we’re taking the steps to really realize there’s one race,” Price said. “That’s the human race. We all need to be treated equally.”