My brother, Dave, was arrested in New Hanover County almost a year ago. He couldn’t afford bail for his felony charge, and I—and the rest of the family—was in no position to help him. Now that the trial date is almost here, we hear that the prosecutor is probably going to drop all the charges. What kind of compensation can Dave get for eleven months spent in jail for no good reason?

Sorry. Dave gets nothing.

But look on the bright side; he’s coming home for the holidays, and he won’t spend years in prison and have the weight of a felony conviction on his record.

One of the quirks of our legal system is that detention before trial is not considered to be punishment. Instead, detention is how the North Carolina criminal justice system ensures that a defendant will appear when called for trial.

Clearly, if every defendant were simply released after being charged with a crime, some—perhaps most—would flee North Carolina. On the other hand, confining every defendant for a long period before his turn comes for his trial seems to be unfair. The solution to this conflict between competing goals is the bail system, which has its origins in Britain during the Middle Ages.

When a judge sets a bail amount for a criminal defendant in North Carolina, she looks at the seriousness of the offense and ties the accused person to the local community. She also listens to arguments from both the prosecutor and the defense attorney about the appropriate bail value. It’s important to recognize that she does not have to consider whether bail would be affordable for the defendant. In fact, if bail was seen as “cheap”—that is, if the amount was regularly set low enough that prisoners could afford it easily—then it would be less effective in guaranteeing that a defendant will return to court when summoned. For this reason, bail in North Carolina is often set so high that it’s even out of the question for defendants to pay the 10 percent premium to obtain a bail bond.

As far as the criminal justice system is concerned, bail isn’t a means to give an arrestee his freedom; it’s a means to control the defendant’s movements without the expense of housing him in jail for months.

For minor offenses where the defendant has close ties to the community, nearby family, and a steady job, cash bail may be waived and the defendant released for free—“on his own recognizance,” is the legal term. By the same token, for some of the most serious crimes or riskiest defendants, the judge may refuse to offer bail at all.

In between those two extremes, there’s a lot of room for maneuvering and negotiation. Your criminal defense lawyer in New Hanover County should be prepared to persuade a judge to lower his client’s bail to a reasonable amount. That’s a strategic argument the defense attorneys at Speaks Law Firm are well prepared to make. In the future, if you need to contact one of our Wilmington trial attorneys, call us toll-free at 877-593-4233. The Speaks Law Firm represents clients throughout the Wilmington, North Carolina area, including Murraysville, Hampstead, Ogden, Delco, Myrtle Grove, Wrightsville Beach, and Carolina Beach.

R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.