Equal Detention Under the Law? Questions About Who Gets Held Without Bail

From county to county there can be significant differences in percentage of defendants held over pending trial

A year after New Jersey switched to a pretrial evaluation and detention system, most are giving the change good grades. But there are some who have concerns that those who end up detained without bail pending trial, depends more on what part of the state is handling the case.

Data for 2017 published by the state Administrative Office of the Courts shows an almost 20 percent decrease statewide in the number of people held in jail while awaiting trial from December 31, 2016 to December 31, 2017. That decline is what criminal justice reform was meant to do.

Different detention rates

But it also shows some large differences among counties in the percentage of defendants being held pending trial. In Bergen County, 1,930 people were arrested and brought to Superior Court last year, with fewer than 8 percent ordered held in jail while awaiting a trial. In Atlantic County, however, of 1,148 people accused in Superior Court, 34.4 percent were detained.

Roseanne Scotti, director of the Drug Policy Alliance in New Jersey, said she has “concerns about the differences in detention rates across the counties” but said it’s unclear what may be causing them.

“We have been told that at this point there is not quite enough data to totally know what’s going on,” said Scotti, who is a member of a task force that is overseeing the implementation of criminal justice reform and has raised questions about detention rates.

Until January 1 of last year, when a person was arraigned on a significant crime in New Jersey, a judge determined whether to release the accused or set a bail amount. In 2014, voters overwhelmingly passed a constitutional amendment to end the guarantee of money bail and change how the courts decide where the accused await trial.

Assigning algorithm

With the new process, information about a defendant is put through an algorithm that calculates what kind of a danger the defendant would be to others and the likelihood of his appearing for trial. The score returned by the assessment offers four recommendations: a person may be released with no conditions; they are required to check in by phone or in person with a pretrial services officer; they are required to wear an ankle bracelet and are limited as to when they can leave home. Lastly, the defendant may be held in jail until trial.

Scotti said the results of the assessment are supposed to determine whether a person is detained but there may be instances where some prosecutors are asking for detention more frequently than is recommended. Judges also have the discretion to agree with the prosecutor, or they can set other conditions, she noted.

Last year, according to the court data, about 18 percent of defendants, or 8,043 out of 44,319, were held pending trial. Almost 8 percent were released without condition. Virtually all the rest were released subject to some monitoring. Most commonly, more than 26 percent of defendants were required to report weekly by phone or in person to a pretrial services office as a condition of their release.

More study needed

Kimberly Yonta, a trial attorney and second vice president of the New Jersey State Bar Association, said the differences in detention rates among the counties merits more study, particularly since counties like Bergen and Atlantic are outliers.

“We don’t know whether they have the same amount of people arrested for the same kinds of cases,” said Yonta, whose practice is in New Brunswick. “In my experience, prosecutors are moving for detention on violent offenses. We can’t tell from this data what the cases are.”

“Just like crime statistics vary county by county, the statistics regarding pretrial detention vary as well,” said Peter McAleer, a spokesman for the judiciary. “Prosecutors have discretion in deciding which charges to file against a particular defendant. While operating within a set of guidelines from the attorney general’s office, they also have discretion in deciding whether or not to seek pretrial detention.”

When prosecutors asked a judge to detain until trial, those requests were granted more than four times out of 10 across the state. There were differences among counties in this instance, as well, from a low of less than 30 percent granted in Gloucester County to more than 57 percent approved in Hunterdon. Statewide, 31 percent of those requests were denied and about 28 percent withdrawn.

McAleer said the courts are completing a report on the first year of criminal justice reform and expect to release it soon. It may have additional data to explain more about detentions, but it will not provide answers to another question that some have asked — including newly confirmed Attorney General Gurbir Grewal, former Bergen County prosecutor — about whether those released pretrial are returning to court for their trials at similar rates as they did under the system of bail, when they stood to lose money if they did not go to court.

“The problems that I see as a county prosecutor are the failures to appear and those types of cases,” Grewal said last Tuesday when he was asked during his Senate committee confirmation hearing about how the reform is working. “With one year of data we need to compare that to what the system was like before criminal justice reform to see are we having, in fact, more people skip on bail than before.”

“We are still compiling statistics on FTAs (failure to appear) for 2017 and prior years as well,” McAleer said. “This involves accessing millions of records across a number of different systems in order to compile criminal data organized by defendant. Just as we created a new pretrial services unit, we had to create a new paradigm for tracking defendants. In doing so, we will be able to collect statistics that provide a more comparative and accurate picture of the progress of criminal justice reform and its impact on both public safety and the protection of civil liberties.”

Scotti said she would like to see data broken down according to demographics to make sure that there is no racial or ethnic bias in determinations of release and detention.

Still committing crimes?

Another question that has not been answered is whether those who are released while awaiting trial are committing crimes.

“I have heard that people are reoffending once they have been released,” she said. “But we don’t know if it’s necessarily worse than what happened when people were out on bail.”

Recidivism has been a concern and is the subject of at least one lawsuit. The mother of a man allegedly killed by a repeat offender released without bail after an arrest for gun possession filed a federal lawsuit over the summer to try to end the reform. Appearing at a press conference announcing the suit were Duane Chapman, who once starred in the Dog the Bounty Hunter television series, and his wife Beth Chapman, president of the National Bail Bonds Association.

Supporters of the reform, including civil rights advocates, say that people committed murder and other crimes while out on bail, as well, and the new system does a better job of determining who is at risk of committing another offense and trying to monitor their actions.

The bail bonds industry has been among the most vocal critics of the shift because while money bail remains an option for judges, only a small fraction of those released last year had money bail as one of the conditions of their release.

High marks

Despite those complaints, the reform has been getting high marks. New Jersey was the only state to receive an “A” for its pretrial justice practices on the first report card released by the nonprofit Pretrial Justice Institute. The institute reported that “over one-third of states received a failing grade due to high rates of unnecessary pretrial detention and failure to implement evidence-based tools to guide decisions about who goes to jail before trial.”

“Criminal Justice Reform eliminated a centuries-old system that allowed money to dictate which defendants were detained until trial and which were allowed to go free,” McAleer said. “A year into this monumental change, we now have a system that bases pretrial justice decisions on a fair and evidence-based assessment of the risk a defendant poses. Poor defendants who pose a low or moderate risk of danger or flight are being released today, most often under the supervision of pretrial services officers, while defendants who pose a substantial risk are being detained for the first time in the state’s history.”

Grewal, speaking at his confirmation hearing last week, agreed: “It could be tweaked more and it’s being tweaked as we go … The driving force behind that legislation was to address the problem of low-risk defendants being held who could not afford bail, and if we look at that metric it’s done well. The jail population has gone down.”

“Overall, we are very happy,” said Scotti. “We are reducing the jail population of those not at risk of hurting others. They are awaiting trial at home, which should be the norm.”

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