In April, Charlotte Mecklenburg Police say two people robbed a convenience store on Gibbon Road in north Charlotte. While pointing handguns at the clerk, they shouted, “Money, Money, where’s the money!” and then took cash, according to an affidavit from CMPD.
But instead of approving an arrest warrant for one suspect, a Mecklenburg magistrate issued a criminal summons, requiring him to show up in court next month.
Charlotte defense attorney Bill Powers — who is not involved in the case — says having fewer people post bail is a good idea.
But not for armed robbery.
“I would say generally speaking there are some levels of offenses that may give one pause, or at least take an opportunity to scratch your head and ask what’s going on,” Powers said.
The new direction on bail is driven in part by Chief Magistrate Khalif Rhodes, who is running for District Court Judge against Karen McCallum, a senior district attorney.
Rhodes, who is appointed, oversees 34 magistrates who make decisions on whether to issue arrest warrants or criminal summons. The magistrates also often decide the amount of someone’s bail.
Rhodes is supervised by Chief District Judge Regan Miller, who makes no apologies for the change.
“It’s a mindset that we have had historically that if you are charged with a crime you should be arrested and put in jail, pending your trial," Miller said. "That’s really not what constitutionally we are supposed to be doing as judicial officials, so we are trying to change that culture.”
Rhodes has made bail reform a key part of his campaign.
He and others say that the bail system punishes low-income people, who struggle to pay a bail bondsman to get out of jail. If someone doesn’t have enough money, they stay in jail – or pay a percentage of their bond, usually 10 percent. They don’t get that money back even if they are found not guilty.
Critics say that leads to poor people falling further behind economically – and being punished for a crime before they have been convicted.
At a recent candidate’s forum hosted by Young Democrats of Mecklenburg County, Rhodes said he wants to continue his efforts to have fewer defendants posting bond.
“We as a county have a bail policy that has fundamental issues that directly affects poor people, and if we want to change racial and ethnic disparities … we have to have to make changes to the policy,” Rhodes said.
McCallum said the magistrate’s office is too lenient.
“The district attorneys get calls several times a week from rape victims who defendants have been given summons," she said. "I’m all in for bail reform. But violent defendants should not be given summons to court. For those of you who don’t know what summons are, it’s an invitation to court. It’s usually given to kids who are shoplifting or low-level misdemeanors.”
Some in Mecklenburg’s legal community agree with McCallum.
In one case this summer, a Mecklenburg magistrate issued a summons to a Pineville man charged with second-degree forcible rape – a felony. The man’s next court date is in November.
In another case last year, Charlotte police said it had probable cause that a Charlotte man committed felony child abuse, due to a child having a fractured arm and a burn on the child’s knee. The two injuries happened two weeks apart.
A Mecklenburg magistrate issued the man a summons – rather than having him be arrested. The summons does not say the man must stay away from the child.
Rhodes, the chief magistrate, says he can’t comment on specific cases. Miller, his supervisor, says he isn’t aware of any cases that weren’t handled appropriately. He also says people are showing up for their court dates.
“I can’t say I’ve seen anywhere where it should have been tougher," Miller said. "You know, each magistrate or any other judicial official should use their discretion. They are supposed to look at the information in front of them, and decide what’s appropriate to do.”
Miller used a theoretical example of Christine Blasey Ford’s allegation of sexual assault against Supreme Court Justice Brett Kavanagh.
What if Ford had pressed charges against Kavanagh three decades later?
“The question would be whether Judge Kavanagh would need to be arrested, or whether a criminal summons could be issued to require him to come to court to face those charges,” he said.
But whether an arrest should be made in a three-decade-old case is not at issue in Mecklenburg County.
Retired Superior Court Judge Richard Boner says not arresting someone for armed robbery is “ridiculous.”
“The purpose of release conditions is two-fold," Boner said. "One is to make sure the person will show up for their court appearance, and the second function is to protect the public while the arrestee’s case is pending. Certainly, a summons for a violent crime like armed robbery doesn’t come close to meeting the second objective.”
CMPD and the District Attorney’s office are being quiet on the topic.
Mecklenburg District Attorney Spencer Merriweather issued a statement that said prosecutors expects their criminal justice system partners to be “especially thoughtful” when evaluating those suspected of committing violent crimes.
CMPD chief Kerr Putney declined to comment.
California this year became the first state to prohibit bail. Starting next year, the state plans to use a formula to determine who should remain in jail and who should be released.
The North Carolina General Assembly passed legislation last year that says summons should be issued instead of arrest warrants – except when a suspect is considered a threat to the community or a flight risk.
But it's up to interpretation as to what constitutes a flight risk or a threat.