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Magistrates have limited discretion when setting bonds

Magistrates have limited discretion when setting bonds

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Setting bail for alleged criminals involves a process that is based, in part, on state law and on the recommendations of the senior resident Superior Court judge and the chief District Court judge.

Eric Duckworth is one of two senior magistrates in Burke County.

In his combined 28 1/2 years, first on the Narcotics Task Force for the Burke County Sheriff's Office and another 16 years with the magistrate's office, there is little Duckworth has not seen or heard.

"I've enjoyed the job. We see people at their worst," he said. "When they get to court, the attorneys and the judges, they get to see people at their best. They're not down here to hear the cursing and the screaming and the fighting and everything that goes on down here."

Over the years, Duckworth said, "I have seen it all. I'll be honest with you, I don't think there's nothing that I haven't seen and there's not a story that I haven't heard. Occasionally somebody will come in and surprise me. Some of these criminals think real quick on their feet. And sometimes, you'll get surprised."

Duckworth said bail is not meant to be punitive, but rather to ensure that the person comes to court. Those who turn themselves in are likely to receive a lower bond than someone who tries to evade the sheriff’s office or police, he added.

An alleged offender pays a bail bondsman 15 percent to get that bondsman to post bond.

In Burke County, Senior Resident Superior Court Judge Robert Ervin and Chief District Court Judge Robert Brady set the guidelines for the magistrates regarding the setting of bail.

The judges base their guidelines on N.C. General Statute 15A-534, which spells out the guidelines for charges and setting bail

For example, murder charges result in no bail for a defendant, whether it is first or second-degree murder, Duckworth said.

Those accused of committing class B-1, B-2, and C felonies receive bails of $100,000; a class D felony receives a $75,000 bail; a class E felony receives a $50,000 bail; a class F felony garners a $25,000 bail; class G felonies receive bails of $20,000; class H felonies are assessed a bail of $10,000; class I felonies receive bail of $3,000.

"Those are basically bonding guidelines. Those are not set in stone," Duckworth said. "But that gives the magistrates something to look at. But you know, there are all kinds of considerations to be to be taken into consideration."

Magistrates do have some discretion when setting a bond amount.

A number of factors go into setting a bond, Duckworth said.

"The first thing I'm going to look at in a (bail) consideration would be, the offense, what it is, and the type of crime that it may be," Duckworth said. "The real question would be, is the person a danger to the community, that's another thing I would take into account when I set bail."

Duckworth said he also would take into account the person's criminal record and his or her past history regarding going to court.

"Do they have failures to appear (in court)?" Duckworth said.

Duckworth said if someone has failed to appear in court, he "absolutely" factors that into what kind of bail he would set for that person.

"You think about the expense and the time considerations of the court, and the sheriff's office and the police department to actually go and re-arrest these people and bring them back in again. It's the entire process all over again, all the paperwork, docking it in at the clerk's office, new court date, put back on the docket."

Whether someone is on probation at the time of committing another offense is another factor to consider, he said.

"It depends on really, whether they're on probation at that time or not. If they are deemed a danger to the public and they're on probation and they commit a new offense – say, they committed an armed robbery and they're on probation," Duckworth said. "Well, at that point, I would deem them a danger to the public (because) they have committed an armed robbery. At which point, the magistrate, if he deems that person who is on probation, if he deems them a danger to the public, the magistrate in that case does not have to set a bond. What he can do is schedule them to go before a Superior Court judge within 96 hours, and then the Superior Court judge sets the bond.

A new law that went into effect on Dec. 1, say that if someone is released from jail, say on drug charges, and commits another offense while awaiting trial, even if it is a misdemeanor, "his bond, which was $50,000 before that he has posted, the new law says that bond shall double, at least double, (it) could be higher," Duckworth said. His bond, at this point, would go from $50,000 to $100,000."

Past charges, Duckworth said, "would carry a lot of weight" with him regarding the setting of  bail.

"You're really looking at the seriousness of the crime that (the person) is charged with. You're also looking at whether they're a danger to the community, so that's on major concern," Duckworth said. "When you're setting bail, you have to look at their financial resources. Because, some folks may have plenty of money and this other person may have nothing."

Duckworth also considers the person's character and standing in the community and his or her mental condition.

"When you're considering mental condition, our jail, we are not equipped to really handle mental patients in the jail," Duckworth said. "So, involuntary commitment or something along those lines may be another option prior to commitment in the county jail."

A doctor at the hospital would determent whether the person could go to Burke-Catawba jail or need psychiatric treatment first.

Other factors that a magistrate would consider is whether a person works and what kind of ties they have to the community.

Using an example of someone who it charged with driving-while-impaired, Duckworth said "it's a little different for the guy that's never committed a crime that has been charged with DWI ... versus the guy that has very serious charges, (and) has been convicted of in the past, violent crime, (that) kind of stuff."

In the case of the first-time DWI offender, Duckworth said a magistrate would consider a custody release to a sober adult. Part of such a release would be to shield the magistrate's office from liability in case the person in question got into a car and drove or wandered out into the street and got struck by a car.

Regarding minor offenses like littering, Duckworth said magistrates typically would give that person a written promise to appear in court. A small misdemeanor larceny would probably be handled the same way, he said.

"Some of those cases, maybe a written promise, as long as they've never been in any trouble," Duckworth said.

Magistrates do have some leeway regarding first-time offenders, especially when they are 16 or 17 and haven’t been in trouble before.

North Carolina courts recognize anyone as an adult at 16.

"A lot of those ... some 16, 17-year-olds, they may get into some minor traffic something," Duckworth said. "If they're 16, 17-year-olds, you want mother and father to know what's going on. So most of those cases, you do a custody release to the parents only. That way, mom and dad has to come get them out of jail."

Magistrates have guidelines for some of the lower-level misdemeanors.

Class A-1 misdemeanors, which include assault on a female, assault on a government official and assault on an underage child are assessed $700 bails.

Drug paraphernalia, petty larceny less than a $1,000 and simple worthless check are considered class One misdemeanors are assessed a $500 bail. Disorderly conduct, carrying a concealed weapon, reckless driving and first-degree trespassing are considered a class Two misdemeanors and judges recommend a $300 bond. For class Three misdemeanors such as littering and second-degree trespassing, Ervin recommended a $200 bond.

"A $300 bond, to some folks, is a non-get-out-of-jail bond," Duckworth said. "Because they don't have $300 cash. A $200 bond, even for some people, would be difficult for them to post."

For these folks, $30 would get them out of jail, but most local bail bondsmen won't accept such a low amount because they are insured by insurance companies and would be out of the money if they person failed to come to court because bondsmen have to pay fees to the insurance company.

"The bondsmen don't have any resources left, after they pay the insurance company, to track these people down," Duckworth said. "So, the bail bondsmen have the tendency to not go these low bonds."

Bondsmen typically don't go for bonds less than $500, he said.

Property can be put up for such bonds and cash is accepted as well, Duckworth said.

Duckworth said he has noticed a rise in the number of Burke County larcenies. Substance abuse, especially of prescription medications, seems to be fueling many of them, he said.

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