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Amid Lingering Concerns, State Report on Bail Reform Notes Successes

A report by the state judiciary shows that fears of ‘chaos’ and ‘mayhem’ have failed to come to fruition

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New Jersey’s criminal-justice reform that all but eliminated money bail gets relatively high marks in a new state report on its first two years, with little change in the proportion of those released pending trial either re-offending or not showing up for trial.

Still, there are some concerns and outstanding questions in the judiciary’s 2018 report to Gov. Phil Murphy and the Legislature. The number of defendants being held pending trial rose by 7.8 percent from 2017, the first full year of the reform, to 2018. Black males continue to make up the majority of the overall jail population and the question of whether black defendants are detained pending trial at a higher rate than whites remains unanswered.

And the courts expect to not have enough money to fully pay for the system as soon as next year.

“New Jersey’s criminal justice system has begun to remove inequities created by the heavy reliance on monetary bail,” said state Supreme Court Chief Justice Stuart Rabner in a statement Tuesday. “Criminal Justice Reform has reduced the unnecessary detention of low-risk defendants, ensured community safety, upheld constitutional principles, and preserved the integrity of the criminal justice system.”

The report found a slight increase in the percent of defendants released pending trial charged with an indictable crime in 2017, compared to 2014, when money bail was the primary mechanism for release from jail before a trial — 13.7 percent in 2017 versus 12.7 percent in 2014. There was also a rise in the percent of those charged with a disorderly persons offense after release — 13.2 percent in 2017 versus 11.5 percent three years earlier.

In addition, the percentage of defendants released pending trial who showed up for pretrial court appearances declined last year to 89.4 percent, from 92.7 percent in 2014.

Advocates hail decline in overall jail population

Sen. Declan O’Scanlon (R-Monmouth), who was among the sponsors of the reform legislation, said those patterns are not necessarily troubling and could indicate a natural fluctuation in offender actions, but they are something the state needs to keep monitoring.

“If re-offenses and failure to show had gone down, that would be a pretty definitive indication of success,” he said. “The fact they went up marginally is something we have to continue to pay attention to … The bail industry had predicted chaos and mayhem and that is not the case.”

Meanwhile, reform advocates point to the successes of the program. For instance, the overall jail population has declined by 6,000 from October 2012 to October 2018. The number of days a defendant was held before initial pretrial release dropped by half from 7.4 in 2014 to 3.7 in 2017 and the time all defendants were held in jail prior to trial declined by 40 percent, from 62.4 days to 37.2 days.

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“This report shows that New Jersey’s historic bail reform law has been a resounding success,” said Roseanne Scotti, New Jersey State Director of the Drug Policy Alliance. “We have seen a 44 percent decrease in the pretrial jail population and, at the same time, no meaningful increases in failures to appear in court or new offenses committed by people who are released pretrial ... The end of money bail in New Jersey has increased both social justice and public safety in our state.”

Until January 1, 2017, 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. Now, money bail typically is imposed only when a defendant fails to appear in court or otherwise violates the conditions of his pretrial release.

Before reform, many were unable to post bail

The Drug Policy Alliance was key to reforming the bail system, releasing a report in 2013 that found almost 40 percent of the state’s jail population in October 2012 was incarcerated because of an inability to post bail, with 12 percent of those in jail unable to pay a bail of $2,500 or less. Last October, just 4.6 percent of defendants, 390, were in jail on a bail of $2,500 or less and most of those — 61 percent — were in jail on municipal-court warrants and were therefore ineligible for release under criminal justice reform.

With the new reform process, information about a defendant is put through an algorithm that calculates what danger the defendant might pose to others and the likelihood of their appearing for trial. Based on the score returned by the assessment, several options are possible: 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 can be required to wear an ankle bracelet and be limited as to when they can leave home, or they can be held in jail until trial.

Another aspect of the reform is the greater use of complaint summonses, rather than arrest warrants, for low-risk defendants. A person issued a summons to appear in court by law enforcement is not processed through a jail, while those arrested are placed in jail until a judge determines whether to release or detain them pending trial. In 2014, 54 percent of defendants received a summons. In 2017, the first full year of reform, that had increased to 71 percent of defendants not having to be processed through jail.

“Two years of comprehensive data leaves little debate that criminal justice reform is greatly improving the lives and rights of New Jerseyans,” said Alexander Shalom, the ACLU-NJ’s senior supervising attorney. “What’s more, thousands of low-risk defendants are now being diverted from the jail intake process altogether, instead receiving summonses that minimally disrupt their lives while the accusations against them are adjudicated. That’s a clear victory for civil rights, and a benefit of reform that hasn’t been talked about enough.”

Jeff Clayton, executive director of the American Bail Coalition, said the increased use of summonses is the real reason for a drop in the number of people in jail and the state could have instituted that change without upending the system.

“That’s 29,000 fewer people they are arresting, that’s what’s driving the reduction in the jail population,” said Clayton, whose organization opposed the ending of bail as a requirement for release from jail. “They’re just not arresting as many people … I would not consider that great a victory.”

Reform as a social justice issue

Regardless of how it was achieved, advocates who had pushed for the reform as a social-justice issue cheered the reduction in the jail population, particularly as it has meant that 3,000 fewer blacks and 1,300 fewer Hispanics, as well as 1,500 whites, were held last October than six years earlier.

“Thousands of individuals, mostly people of color, have been able to remain free pending trial,” Scotti said. “They have been able to stay with their families and communities. They have been able to keep their jobs and their housing.”

On the other hand, a section of the report that looked at the overall jail population and not just those awaiting trial shows that the racial and ethnic makeup of the overall jail population remained disproportionately black, with no change from 2012 to 2018: 54 percent of all those in prison were African-Americans. Blacks make up about 15 percent of the state population.

The court’s report notes this, stating, “the Judiciary recognizes the need to continue to examine the effect of CJR on racial disparity in the criminal justice system and to ensure that all defendants are treated equally by the courts.”

“It is certainly problematic,” Shalom said. “It is not good enough that things have not gotten worse. There exist many drivers of disparities; our system of pretrial justice should look to address and eliminate them wherever it can.”

One question not answered by the report is whether blacks and Hispanics accused of a crime are detained pending trial at a greater rate than whites. That could contribute to the continuing large proportion of people of color in jail and it is something about which advocates have been concerned.

Shalom praised the state for including data about race and ethnicity in its report, but added, “More data would be useful on this point.”

Another report finding of potential concern is the increase from 2017 to 2018 in the percentage of arrested defendants who are detained in jail while awaiting court proceedings. Jails held more than 600 additional defendants last year than in the first year of bail reform. (There is essentially no more cash bail so these are people denied release because the algorithm determined they were either a risk to public safety or a flight risk.) The detention rate for those charged on a warrant rose from 18.1 percent in 2017 to 19.5 percent last year. It’s unclear whether that may have been because of changes in guidance from the courts or the attorney general about when to seek or approve detention or for other reasons. Prosecutors also filed more requests to detain defendants — from 43.7 percent of cases in 2017 to 49 percent last year.

“Any increase in detention rates raises red flags,” Shalom said. “Our system succeeds when it prioritizes liberty; we’ve made tremendous strides in changing the culture of pretrial justice to one that has release as a default, but there is more work to be done.”

Money, other concerns for the future

The report raises other concerns, as well, stating that there are “insufficient resources” to provide needed treatment for substance abuse and mental health issues for those released pending trial. There is also a lack of housing assistance.

For the second year in a row, the report also states that there is “an impending funding crisis” for the program that monitors those defendants who are released until the final disposition of their cases. The intensity of the monitoring depends on the level the court orders, ranging from a monthly phone call to responding to alerts that a defendant on electronic monitoring has left home or tampered with an electronic bracelet.

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The pretrial services program added 30 employees last year and has a total staff of 297, in addition to the judges who hear cases. It costs $4.19 per defendant per day for electronic monitoring.

“There is a continuing critical need to identify and implement a sustainable means to fund the program,” the report states. “The current method — which relies on annual court filing fees — is not a workable approach. As predicted at the outset of CJR, the model in place has a built-in structural deficit, and within the next year, will result in an actual funding deficit.”

The amount collected in court filing fees has been dropping since the 2016 fiscal year. In the last fiscal year, the judiciary collected $40.5 million and collections for FY2019 are so far 1 percent below where they were at the same time last year.

Shalom said the state needs to come up with a stable source of adequate funding to keep the program going.

“The time has come to fund the program from the state budget rather than from filing fees,” he said. “The opportunity for long-term financial savings due to a sharply diminished New Jersey jail population is real; regardless, the gains — a fairer system, families that aren’t disrupted, and stronger communities — are worth every penny of our investment in this system.”

County jails need more time to measure impact

John Donnadio, executive director of the New Jersey Association of Counties, said the counties need more time to determine how much they might be able to save in jail costs.

“With respect to operating county jails, we will need another year or so to determine if the reduction in the overall jail population will result in any cost savings,” he said, adding that the jails are continuing to process defendants. “Over time, county jails should realize cost savings through attrition and the retirement of correction officers, but it’s still too early to make that determination.”

However, he added, county governments spent between $45 million and $50 million hiring additional prosecutors to implement another component of the reform — setting time limits for court proceedings to ensure that a defendant who is kept in custody does not have to wait overly long for his case to be decided. For instance, a person cannot be held more than 90 days before an indictment, or more than 180 days after an indictment, with some exceptions.

While the report does not go into detail about the state’s performance on keeping to those deadlines, courts spokesman Peter McAleer said that trials have been proceeding according to those timeframes.

“We only know of a very small number of instances, like one or two, where we missed the deadline,” he said.

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