Laws such as this play into the hands of anti-enforcement progressives.

N orth Carolina has a dumb bail law. It’s not as dumb as New York’s (the most reckless in the nation). It’s not as dumb as a cashless bail law (the kind President Trump is on the warpath against), but its dumbness — and the dumbness of similar bail laws in other states — is why progressives get traction for their lunatic cashless bail laws.

Here’s how dumb it is.

Over the last few days, I’ve been asked why Decarlos Brown Jr. — who is accused of brutally murdering 23-year-old Ukrainian refugee Iryna Zarutska — was free to commit murder and mayhem despite his long record of violent arrests, sentences of incarceration, and failures to appear in court. More specifically, two good questions have arisen: (1) Is it true that judges in North Carolina are permitted to detain people pretrial? And (2) is it true that judges in North Carolina must set bail?

It should be impossible that “yes” is the answer to both of those questions, but it is.

North Carolina law has a strong preference for bail to be granted. That’s fine . . . every American jurisdiction should have such a preference. People accused of crimes are presumed innocent until proven guilty. And the issue in a bail proceeding is not whether the accused is guilty; it is whether the accused will return to court as directed for all proceedings in the case and comply with release conditions. A court’s setting of bail is not suggestive of a judgment that the person did not commit the crime charged; the vast majority of defendants who are eventually convicted have nonetheless been granted bail.

Now, there are categories of serious and (quite often) recidivist offenders who should be denied bail. In the federal system, a good bail system that I will use for comparative purposes, the judge has the power to do that (see Section 3143 of the penal code).

There are two considerations in every inquiry about whether an accused should be released or detained pretrial: risk of flight and danger to the community. If a person has a criminal history that includes bench warrants — i.e., arrest warrants that courts issue when a person fails to appear for a court proceeding — he is obviously a flight risk. If a person has a criminal history of violent crimes, and intermittent incarceration terms after which the person is arrested yet again for additional crimes, he is a danger to the community. If the prosecutor presents a federal judge with sufficient evidence that either or both conditions apply — i.e., that there is no condition or combination of conditions that can satisfy the court that the defendant won’t flee or endanger the community — then the judge orders the defendant detained. Otherwise, bail is set in an amount the defendant can meet.

In North Carolina, by contrast, the judge is required to set bail (under §15A-534 of state criminal procedure). There are five conditions of pretrial release, and the “judicial officer must impose at least one of [them]”:

(1) the defendant promises in writing to appear as directed;

(2) the defendant executes an unsecured bail bond in the amount specified by the judge;

(3) the defendant is placed in the custody of an approved person or organization (a private custodian who agrees to supervise his compliance with release conditions);

(4) the defendant executes a bail bond that is fully secured by cash, real property (a mortgage bond), or by at least one solvent surety (a person who has moral suasion over the defendant, such that the defendant is unlikely to flee if he knows the surety will forfeit the money or property posted to secure the defendant’s release); or

(5) the defendant is confined to house arrest with electronic monitoring.

Yet, simultaneously, the bail statute further instructs the judge to determine whether release will

reasonably assure the appearance of the defendant as required; will pose a danger of injury to any person; or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses.

That is, even though the judge is required to set bail, North Carolina also requires the judge to engage in the same inquiry as federal law mandates: Is the defendant a risk of flight and/or a danger to the community?

So . . . what if the judge finds that the defendant poses an unacceptable risk of flight or dangerousness? That’s where we see the dumbness of the law that requires bail to be set. If the defendant is deemed a flight risk or a danger, North Carolina law prohibits the judge from setting one or more of the first three release conditions excerpted above (promise to appear, unsecured bond, or private custodian). Instead, the judge must impose release condition (4) or (5) — secured bond or home confinement with electronic monitoring.

But wait, if the judge sets one of those two conditions, that’s still setting bail, right? Not exactly.

Let’s put home confinement aside. It’s impractical: The court has to trust the defendant to comply with the terms; to wear the monitor; to refrain from intimidating witnesses, committing crimes, or fleeing the jurisdiction. (Electronic monitoring doesn’t stop a defendant from fleeing; it just means the court officer who gets the electronic alert will be the first person to know the defendant has fled the jurisdiction.) If the court could really trust the defendant to comply with the conditions attendant to home confinement, then the judge would release him on a secure bond, instead; on the other hand, if the court can’t trust the defendant to comply, then the defendant should be incarcerated, not confined to home.

What we’re really talking about here, then, is release condition (4), the secured bond. How does the judge set bail (which implies pretrial release) yet ensure that the defendant is detained pretrial? Easy: by setting the bail amount so high that there’s no way a person of the defendant’s means can secure the bond.

That’s dumb because if the defendant should really be detained, why indulge the fiction that bail is being set? At a high enough amount, the bail is illusory, anyway. Why not just empower the judge to deny bail?

Laws such as North Carolina’s, requiring the judge to set bail, play into the hands of anti-enforcement progressives in two ways.

First, there is a constitutional objection. The Eighth Amendment states, “Excessive bail shall not be required.” This is sometimes mistaken for a right to bail. The Constitution does not grant a right to bail (otherwise, pretrial detention would be forbidden; in reality, it is routine in cases involving egregious offenders). What the Eighth Amendment’s directive means is that if bail is granted, it must not be excessive.

It has long been assumed that the proscription against excessive bail applies to the states. So . . . isn’t it excessive to set bail knowing and intending that the defendant won’t be able to post the amount required?

Well, that’s a colorable claim. It usually doesn’t carry the day, though, because the reasonability of a bail amount is understood to be based on the risk involved (of flight or danger), not whether the defendant’s means will allow him to post the amount. Still, it would obviously be better if a court could simply deny bail in an appropriate case, rather than engage in the fiction of setting bail as required, but setting it in an amount that effectively denies pretrial release.

Second is the left’s systemic racism mantra. It’s nonsense built on statistical voodoo.

To take the most prominent example, young black men are prosecuted and imprisoned at rates disproportionately higher than their percentage of the population. But that’s because they offend at disproportionately high rates — to be clear, that’s as a statistical group, it doesn’t mean any individual black man is more likely to commit a crime than anyone else (the most important factor in predicting criminality is recidivism, not race). We know black offense rates are disproportionately high because of crime victim reporting (which also reliably tells us that black communities are disproportionately victimized by crime). It’s a regrettable fact, not a racist delusion. Yet, under lunatic “disparate impact” analysis, we’re supposed to believe that if people in an ethnic or racial group are being prosecuted and incarcerated at rates higher than their group’s percentage of the overall population, it must be because police, prosecutors, and judges are making racially biased decisions about whom to arrest, charge, and sentence to prison.

The North Carolina law feeds into this claptrap. If judges are setting bail at an amount calculated to deny release, then that will necessarily mean racial or ethnic groups whose members commit serious crimes at disproportionately high rates will more often have bail set in an amount they cannot meet, and thus more of them will be in pretrial detention. But this isn’t a function of race; it’s a commonsense result of assessments about the seriousness of the risks of flight or dangerousness to the community.

If a well-to-do white defendant committed a heinous crime and was a serious bail risk, the court in North Carolina would still set bail at an inordinately high amount; it would just be much higher than would be necessary to deny release to a poor black defendant who’d committed a similar crime and posed similar bail risks. Everyone would grasp that the difference would not signal racism; it would reflect the difference in the relative means of the defendants who were otherwise similarly situated.

By the same token, let’s say a black offender is credibly accused of a serious crime and poses high bail risks, and thus bail is set in an amount so high he can’t post it; at the same time, a white defendant is credibly accused of a less serious crime and poses little or no bail risk (i.e., he’s not violent and the court can be confident he won’t flee because he’d get in more trouble from absconding and forfeiting bail than from being convicted in the underlying case). The fact that the black defendant is incarcerated pretrial but the white defendant is released on cash bail is not racism; it is a reflection of the comparative seriousness of the charges and the risks posed.

Yet, progressives will say that if the black defendant languishes in custody while the white defendant “buys” his liberty, that illustrates systemic racism.

It’s a dumb argument, but a state’s “bail must be set” law gives it a certain surface appeal. Life is short, and people do not have time to analyze the many things more salient than race that factor into bail decisions — e.g., seriousness of the crime charged, prior criminal history, roots in the community, and employment status.

These constitutional and political objections would have no weight if states adopted bail laws, similar to the federal law, that allow judges to deny pretrial release in appropriate cases without setting bail. If defendants who are unacceptable bail risks were removed from the equation, then bail for the remaining defendants would be set in amounts they could meet, not set for the anomalous purpose of keeping them detained.