The state performed well for its first year of criminal justice reform, according to the New Jersey judiciary, but key data is missing from the report and the picture is incomplete.
To keep the program successful, the state is going to need to spend more money and provide more services, noted the report issued by the Administrative Office of the Courts.
“Success will depend on the continued collaboration among the three branches of government and the CJR (criminal justice reform) stakeholders, a sustainable revenue stream that can ensure full funding of the program, and services that provide defendants with the means to ensure their own pretrial success,” states the report’s summary.
Until January 1 of last year, when someone 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 awaits trial.
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 their appearing for trial. The score returned by the assessment offers several recommendations: a person may be released with no conditions; they may be required to check in by phone or in person with a pretrial services officer; they must wear an ankle bracelet and be limited as to when they can leave home; they can be held in jail until trial.
Languishing in jail
The change is meant to prevent low-risk offenders with few resources from being forced to spend months or longer in jail awaiting trial because they can’t afford bail, while having the ability to keep in custody the most violent defendants who might have been able to afford a high bail in the past. According to the report, judges set money bail only 44 times in the past year, or less than 1/10 of 1 percent of times.
Of more than 44,000 cases that came before a judge, 18.1 percent of defendants were detained awaiting trial, with the rest released with no or some conditions. Another 98,000 complaints resulted in a summons issued by law enforcement and release. The state’s pretrial prison population dropped by 20 percent from the start of the program on January 1, 2017 to January 1, 2018.
While that is good news, it’s not enough, said Alexander Shalom, senior staff attorney at the ACLU of New Jersey and one of the proponents of the reform.
“There is key data that is not in the report and is conspicuous by its absence,” he said. “We know how bad the old system was. We want to be able to prove how well the new system is doing.”
Keeping court dates?
For one, the report does not provide any indication of the rate at which defendants who are released without bail are showing up for their court dates. In the past, the amount of bail a person had posted was an incentive for them to go to court; otherwise, they would forfeit the money. So far, the AOC has not released this data for 2017, because it says to be meaningful it must be comparable to the years before reform. It says it is still working on capturing the pre-reform data.
The other data advocates are seeking involves the race of defendants detained, released, and released with conditions. There is already a large racial disparity in the state’s prison population and advocates want to see whether there is any racial bias in the way offenders are handled pretrial. Again, the state’s courts office wants to ensure any data it releases is comparable for the periods before and after reform.
“At every point in the criminal justice system, people of color fare worse than their white counterparts and the pretrial stage is no exception,” said Richard Smith, president of the New Jersey State Conference of the NAACP. “Bail reform was passed with the promise of reducing these racial disparities, and we are happy to see the statewide pretrial jail population on the decline. We also look forward to reviewing demographic data on the new system when it is released.”
Shalom said that the courts have had to go back and get data for 2015 and 2016 and make sure it is comparable, including by examining cases individually, and that takes time. Advocates, however, have been asking for these comparisons for a long time now.
‘All eyes on New Jersey’
“We are trying to be patient with the courts, but we are getting to a time where we need to see this,” he said. “It’s critically important. All eyes are on New Jersey as the nation looks at how well we are doing with this reform.”
“As we enter into the second year of implementation, we look forward to reviewing more detailed data about the new system,” said Roseanne Scotti, New Jersey State director of the Drug Policy Alliance, whose 2013 report was a driver of the reform. That report found that 40 percent of people in jail awaiting trial in the state were there only because they could not afford bail.
Additionally, it does not address possible reasons for a disparity in the proportion of defendants detained, or for whom prosecutors sought detention, among the counties. An NJ Spotlight analysis of county data found that detention percentages ranged from 8 percent of defendants in Bergen County to more than 34 percent in Atlantic. The rate at which prosecutors sought pretrial detention also varied significantly, from a low of 21 percent of defendants in Bergen to a high of 87 percent in Salem County.
Shalom called this data “troubling” and said the state needs to look at the differences in the counties in an effort to replicate statewide what those counties with the lowest detention rates are doing well.
“Liberty should be the norm, detention prior to trial should be the exception,” he said.
Still, state officials and advocates say the new process is a great improvement over the former system of bail.
“New Jersey has successfully transformed an antiquated money bail system into a modern, risk-based system that relies on empirical evidence to better identify the risk a defendant poses,” said Judge Glenn A. Grant, acting administrative director of the courts, on releasing the report. “In the year ahead, the Judiciary, along with its many vital partners, must continue to identify issues and improvements that will make the criminal justice system fairer and our communities safer.”
“The bail reform data released today demonstrates the great strides that New Jersey has made in restoring fairness to our criminal justice system while also ensuring public safety,” Scotti agreed. “The reform made the system fairer and safer, and we’ve seen the state’s jail population decline as the result.”
More money needed
In its report, the AOC says that for the new system to continue to work effectively and even improve, the state is going to have to spend more money and provide more services for defendants.
To date, court fees have been the major funding source for the reform, collecting nearly $131 million and spending it on the pretrial services program, which includes monitoring those released, a new electronic filing and case management system for the courts and Legal Services of New Jersey. But the fees collected in the first half of the 2018 fiscal year were 2.4 percent less than in the prior time period, and the report concludes “the funding of an ongoing court operation through court filing fees is simply not sustainable” but will require “a stable and dedicated funding stream” through the general fund of the budget.
Inadequate funding has been a complaint by the state’s counties, which cover a portion of criminal justice costs, since the beginning, although advocates have argued that a drop in the number of people held in jail pending trial will result in savings for the counties.
“The Administrative Office of the Courts has all along stated that funding for bail reform would run out. This appears to have happened a little sooner than they anticipated,” said John Donnadio, executive director of the New Jersey Association of Counties. “From the counties’ perspective, we stand by the fact that bail reform cost significantly more to implement than what was contemplated by state leaders. Although we may realize cost savings two-to-three years down the road on the jail side if the county jail population continues to trend downward, counties will never recoup the investment they made of approximately $45 million to $50 million on the county prosecutor end.”
The cost of electronic monitoring of defendants is also a problem. With a cost of as much as $4.19 per person per day and 3,686 defendants monitored for at least some part of 2017, the judiciary spent more than $784,000 on monitoring alone last year and there needs to be a source for that funding.
“There’s no question the program needs more money,” Shalom said. “Justice is not cheap.”
Finally, the lack of affordable community-based treatment programs for substance abuse and mental health issues and a lack of housing assistance have been “a significant challenge” for pretrial services personnel who are trying to help defendants released pending trial. Court orders releasing a person may require them to attend counseling, get drug treatment, get a job, or go to school. Even when not ordered, defendants may seek these services, but they can be hard to find, according to the report.
“To help ensure defendants’ pretrial success, it is imperative that defendants receive the services that they need,” the report states. “There is not an adequate supply of available services. Pretrial Services staff also have difficulty locating affordable programs or services for pretrial defendants, as many programs often charge for their services and rarely waive their fees. When a free program is available, it often takes months for space to become available.”