A New Jersey lawmaker wants to make it easier for judges to set cash bail for criminal defendants, a move activists say would significantly roll back last year’s criminal justice overhaul, which has been lauded as a national model of reform.
In his Restoring Judicial Discretion in Bail Setting Act, Assemblyman John McKeon, D-Essex, proposed returning to judges the power to require monetary bail amounts for any criminal defendants.
Under the overhaul that took effect in January of last year, judges stopped setting cash bail for all defendants; instead, they began either releasing defendants until trial or holding them in jail.
Judges could only require monetary bail after they decided that no other conditions (such as reporting to a court officer or home detention) would prevent a defendant from skipping a future court date. Now, cash bail is a rarity, with judges issuing it to only 44 defendants in 2017.
McKeon did not respond to several requests for comment.
But according to the text of the bill, he said the subversion of cash bail has meant that “judges have no other option in the current system but to blanket defendants with correction technology, intense supervision by local governments, and other liberty-restricting conditions.”
That has caused, according to the bill, a “financial burden on local governments.”
“Our argument has been they need the option of bail to alleviate the [financial] pressure,” said Jeff Clayton, executive director of the American Bail Coalition.
Clayton pointed out that the state has already claimed it is running out of money to fund the criminal justice overhaul, which requires funding to staff a new pretrial services unit and pay for GPS tracking and other technology.
The state would be better off, Clayton said, outsourcing the role of monitoring defendants to bail bond agents. “Otherwise they’re gonna get a big budget request,” he said.
But supporters of scrapping cash bail and switching to a risk-based system criticized what they saw as an attempt to resurrect the old model.
“What this bill is is a call for a return to the previous status quo,” said Alex Shalom, a senior staff attorney at the ACLU-NJ.
Shalom predicted that, if cash bail again became a mainstay of the criminal justice system in New Jersey, judges would revert to issuing it to poor defendants who would be unable to pay. The state moved away from monetary bail, in part, due to the overwhelming number of low-income defendants stuck behind bars simply because they could not afford their bail.
Clayton acknowledged the possibility that some poor defendants may suffer if cash bail returned, but he predicted that judges would most likely use it for high-risk defendants who would otherwise be detained or released with significant conditions.
McKeon proposed another bill that would have made it possible for judges to offer money bail to all but the most serious offenders.
But Shalom maintained that bringing back cash bail in any significant way — without any checks on how judges could deploy it — would spell a return to an outdated system in which thousands of defendants awaited trial behind bars because they were not flush enough to pay for their release.
“I don’t understand, knowing what we know about what a failure the old system was,” Shalom said, “why anyone would want us to return to a system that we know had failed us for so long.”