May the court appoint counsel if the defendant is arrested on a Class 3 misdemeanor and cannot make bond?

Yes. Whether detained before trial or after conviction, an inmate has a due process right to meaningful access to the courts. See, e.g., Bourdon v. Loughren, 386 F.3d 88 (2d Cir. 2004). A state satisfies this right by ensuring adequate legal assistance to inmates. The assistance does not necessarily have to be in the form of appointed counsel; it could be in the form of other legal resources, such as a law library. Because inmates in most North Carolina jails do not have access to such legal resources, IDS’s policy authorizes appointment of counsel for an indigent defendant while in custody on a Class 3 misdemeanor charge to ensure that the defendant has meaningful access to the courts to defend against the charge. The appointment would be made as in other cases involving defendants held in custody on misdemeanor charges—for example, at first appearance in districts that hold first appearances on misdemeanors. See also G.S. 7A-453 (requiring authority having custody of person held in custody for more than 48 hours without counsel to notify clerk of court or IDS designee [the public defender in districts with a public defender]).

IDS’s policy and the AOC appointment form, AOC-CR-224 (Dec. 2013), provide that this type of appointment constitutes a limited appearance pursuant to G.S. 15A-141(3) and G.S. 15A-143 and that the representation ends if the defendant makes bond or the court unsecures the bond; however, while the defendant is in custody, the appointed attorney may handle all aspects of the case and is not limited to working solely on the defendant’s release.

Some judicial districts in North Carolina have revised their bond policies to provide that if a defendant is arrested for a Class 3 misdemeanor, the judicial official should set an unsecured bond except as otherwise specified (an exception might apply if the defendant is arrested for failing to appear on a Class 3 misdemeanor). Such a policy avoids the prospect of a person being held in custody for an offense for which the court can impose no jail time if the person is convicted.