New Jersey’s pioneering bail reform effort is approaching its one-year mark, and grading the overhaul varies depending largely on whom you ask, with proponents and skeptics falling along familiar political fault lines.
But here is what is not up for debate: fewer people are sitting in jail; the state’s bail-bonds industry is feeling the pain; and the new multimillion-dollar system is still contending with several legal challenges to its constitutionality.
“For the first time in the state’s history, there is a conversation looking at what’s happening with the system,” said Judge Glenn Grant, acting administrative director of the New Jersey judiciary. “Historically, those conversations were not going on.”
The state virtually eliminated money bail in January and switched to a system where judges consider each defendant’s individual risk before deciding whether that defendant should be released or kept in jail whaile awaiting trial.
The new method addressed a concern long held by criminal justice advocates that too many poor people were stuck behind bars simply because they couldn’t afford to get out.
Law enforcement officials also applauded the overhaul, since it allowed judges to keep potentially dangerous criminals locked up until trial. (Previously courts had to issue money bail to almost everybody.)
But critics claim the criminal justice overhaul is leading to an erosion of personal accountability and an uptick in crime, even though there is little evidence to back that up. Bail bondsmen, many of whom are going out of business under the new system, say that, without them, there is no longer anyone to make sure defendants follow the straight and narrow outside of jail.
Releasing criminal defendants has not led to a crime wave
Before cash bail was scrapped, opponents said low-level defendants released shortly after their arrest would break the law again in large numbers, resulting in a crime wave across the Garden State.
That never happened. Preliminary crime statistics from the New Jersey State Police show no major bump in violent offenses across New Jersey. In fact, just the opposite is true: For many serious crimes, the rates are dropping.
Compare the period from January through September of 2017 to the same period last year. Rapes and shootings are up slightly across New Jersey, but murders, robberies, and assaults dropped — some by double-digit margins.
Still, some elected officials in the state’s urban areas blame bail changes for what they say is an increase in gun violence. At a recent press conference, Newark Mayor Ras Baraka said too many defendants facing firearms charges are allowed back onto the streets within hours of their arrest.
Opponents have pointed to other cases where defendants accused of particularly objectionable crimes are let go, suggesting that judges are being too lenient.
“While New Jersey lawmakers and the judiciary are high-fiving and celebrating the first year of implementation, many still languish in jail on nonpayment of fines and low monetary bonds issued by municipal courts,” said Christopher Blaylock, a bail bondsman and founder of the website U.S. Bail Reform. “All while sexual predators, drug dealers, prior felons with loaded guns, and offenders who spit on and assault cops walk free on a mere ‘pinky promise.’ ”
Champions of the bail overhaul, including Republican Gov. Chris Christie, say those defendants could have paid their bail or posted their bond and gotten out just as quickly in years past. And now there is a way to detain dangerous offenders.
Fewer sitting in jail, but other benchmarks remain unknown
A 2013 study by the Drug Policy Alliance and Luminosity found that nearly 40 percent of jail inmates in New Jersey were locked up because they were too poor to afford their bail. The findings renewed calls to overhaul the bail system and ultimately sparked the criminal justice changes unfolding across the state.
With someone’s release now determined by individualized factors including current charges and prior convictions, pretrial freedom is no longer exclusively for the most well-heeled criminal defendants.
The result is that far fewer people are sitting in jail across New Jersey. Through October, the county jail population dropped by 17 percent statewide. Officials expect it to fall even further in the coming years.
“The fact that those individuals can be home — and keep their jobs and keep their housing and be with their families — while they’re awaiting their day in court is wonderful,” said Roseanne Scotti, director of the New Jersey Drug Policy Alliance. “It’s how our American system of justice should work.”
But what many people — especially critics — want to know is how many criminal defendants who are released under the new rules skip court later or commit another crime while they’re free.
Those statistics should be available in early 2018, according to the state judiciary.
Unlike jail populations, which counties track, state statisticians have to sift through every New Jersey arrest record from 2017 to calculate statewide failure-to-appear and reoffense rates. Judiciary officials also want to compare those rates to previous years, which they say is a monumental task.
“We’re not talking about a hundred defendants,” said Grant. “We’re talking about tens of thousands of defendants.”
Details of new criminal justice system continue taking shape
Although New Jersey’s new pretrial system required years of careful planning, it continues to change a year after its rollout.
For example, under the new system, court officials use a computer algorithm to calculate a risk score for each defendant, predicting whether that individual might skip court or reoffend if released.
Nothing has changed about the factors — such as age, current charges, and prior convictions — that go into the algorithm. But how it uses that information to make recommendations to judges has been fine-tuned.
After the uproar over the release of defendants facing gun charges, the computer program was modified to recommend that judges detain anyone charged with firearms offenses rather than consider other individualized circumstances. (Judges can use — but aren’t bound by — the risk score in deciding whether to release a defendant.)
Another part of New Jersey’s criminal justice overhaul included setting timelines to define a “speedy trial.” In cases where defendants are held in jail before their trial, grand juries have to return an indictment within 90 days; the trial must start within 180 days after the indictment; and the total time from arrest to trial cannot exceed two years. Those “speedy trial” requirements will come into sharper focus in 2018, as more defendants are brought before a jury.
Then there are the tweaks that could be made from outside the system. At least two major lawsuits challenging the state’s bail changes are winding their way through federal court in New Jersey and Philadelphia. A federal judge in one of the cases said putting the brakes on the criminal justice changes would pose a “high risk” to the state. But both suits, which are funded by the bails bonds industry, will continue to unfold next year.
Reshaping state’s entire pretrial system has come at a cost
In February, during an episode of “Ask the Governor,” his semi-regular call-in show on radio station New Jersey 101.5, Christie said this in response to a caller who opposed the bail overhaul: “What this guy doesn’t say is that it’s saving tens of millions of dollars for states and counties who have to house these folks.”
In fact, one of the main criticisms of the new system is that it is costing too much.
Originally expected to be financed exclusively through court fees, the criminal justice overhaul will need funding through the state budget in order to survive, according to Grant.
The newly-formed Pretrial Services division of the state court system may have to hire additional workers to keep tabs on the thousands of inmates released from jail pending trial, many of whom wear a GPS bracelet or are confined to home detention.
Although the Legislature set aside money to hire more judges, it has not lent a financial hand to county governments, which have called the new criminal justice system an “unfunded mandate.” Counties pay for prosecutor’s offices, courthouses, sheriff’s departments, and jails.
The New Jersey Association of Counties estimated that it cost the state’s 21 counties $45 million to $50 million to implement the new system.
What happens when Gov.-elect Phil Murphy takes office?
Murphy, a former board member of the NAACP, supports the changes to New Jersey’s criminal justice system. He promised to “fully implement bail reform so no one sits in jail because they cannot afford to pay a fine,” according to his campaign website.
But his pick for lieutenant governor, Assemblywoman Sheila Oliver, has not always been so supportive of the proposal.
In late 2016, she co-sponsored a bill to bring back money bail for a large swath of criminal defendants, which would have dealt a major blow to the new risk-based system that was about to take effect.
The bill never made it out of committee, but it’s unclear if she still holds the same position.
A spokesman for Murphy did not respond to several requests for comment.