It was the statistic that shocked New Jersey into action:
On any given day, more than 1,500 people — 12 percent of New Jersey’s jail population — were being held behind bars solely because they could not afford bail of $2,500 or less. For months, sometimes years, they sat in jail, while others, some of whom posed a greater risk to public safety but had the money to buy their way out, were released.
The statistic, part of a study released in 2013 by the Drug Policy Alliance, was an eye-opener: New Jersey’s cash bail system was clearly discriminating against the poor.
“It was all based upon their economic circumstances,” said Judge Glenn A. Grant, Acting Administrative Director of New Jersey’s courts. “And that’s not what this country stands for.”
That one statistic would help launch New Jersey’s criminal justice reform movement. In January 2017, the state essentially eliminated cash bail despite concerns from segments of the community who feared a public safety crisis. Nearly three years later, the first studies on the reform are emerging, and all signs are pointing toward success.
“New Jersey’s reforms are dramatic — what they did is sweeping,” said Cindy Redcross, Director of the MDRC Center for Criminal Justice Research, which on Thursday released its study on New Jersey’s statewide reform. “They didn’t just reduce bail; they completely eliminated it.
“What they said they were going to do they succeeded in making happen, and it resulted in real changes for defendants and the courts.”
How They Got There
Just two months after that Drug Policy Alliance report emerged, the state’s chief justice, Judge Stuart Rabner, sprang to action, establishing a Joint Committee on Criminal Justice to study the cash bail system, among other criminal justice issues.
It wasn’t just that one statistic that was worrisome: Nearly 75 percent of the 15,000 individuals sitting in New Jersey jails were there not because they had been convicted of a crime — they were simply awaiting their trial or sentencing. And they weren’t waiting for a few days. The average length of incarceration for pretrial inmates was more than 10 months.
The cash bail system was mostly to blame, as nearly 40 percent of the total jail population had the option to post bail but lacked the money to do so.
There really has never been any logic to a system that determines your pretrial status based on your access to resources, your wealth.Joseph E. Krakora New Jersey’s public defender and a member of the Joint Committee on Criminal Justice
Money bail had been touted as a way to ensure a person showed up to court: If they didn’t, they’d forfeit their bail money, supposedly giving them skin in the game. But there was little proof to support the theory. Neither was there proof that the bail bond industry actually monitored those who were out on bail to make sure they showed up for court and weren’t charged with other crimes.
“There really has never been any logic to a system that determines your pretrial status based on your access to resources, your wealth,” said Joseph E. Krakora, New Jersey’s public defender and a member of the joint committee, which included the biggest stakeholders in the state’s criminal justice system.
Judges, prosecutors, public defenders, private counsel, and court administrators sat with representatives from the Legislature and governor’s office to find a solution. Both sides of the aisle and both sides of the courtroom — all focused on fixing what was broken with the state’s criminal justice system.
“Every stakeholder in the system agreed that this change needed to happen,” Krakora said, “even if for different reasons. From our point of view, it was important to get people charged with low-level offenses, held because they were poor, out of jail. For the law enforcement community, the ability to detain high-risk defendants without bail was important.”
In March 2014, the committee made a unanimous recommendation to completely overhaul the system, shifting it from one that relied heavily on monetary bail to one that takes money out of the equation and is “risk-based” — where defendants are held or released based on their risk of failing to show up for court or incurring new criminal charges. The courts’ default, the committee suggested, should be to keep people out of jail.
The committee also recommended the use of a risk-assessment tool to help make risk determinations; a pretrial services program to monitor those who are released (see sidebar at bottom of story); speedy-trial laws to ensure that criminal cases are brought to trial more promptly; and a constitutional amendment that would allow “preventive detention” — the ability for a judge to detain a person without the option of bail if there’s a risk to public safety.
Getting so many stakeholders of different ideologies to sign off on this set of recommendations was the “single-most important reason” the state was able to implement reform, Krakora said.
Elie Honig, who at the time was Director of the New Jersey Division of Criminal Justice, agreed.
“We had a Democratic-controlled state Senate, a Democratic-controlled state Assembly, in a primarily Democratic state but with a Republican governor. And we were able to build that consensus,” said Honig, a member of the committee. “And also, we were able to build consensus to where we as prosecutors, the attorney general’s office, and the county prosecutors were almost entirely in agreement with the public defender and the ACLU and the judiciary about what needed to be done.”
The unanimous proposal was a significant step toward reform, but there were still a number of hurdles New Jersey needed to clear: The Legislature needed to approve the recommendations, the governor had to sign the bill, and the voters needed to agree to amend the constitution. And amid it all, a very vocal opposition group was fighting the changes with everything it had.
‘Fighting Us Tooth and Nail’
That opposition included some law enforcement officials and New Jersey citizens, but it was primarily made up of members of the bail bond industry, whose livelihoods were being threatened by the possible elimination of cash bail.
Their voices were loud and their warnings clear: If the state of New Jersey proceeded with this reform, they said, public safety would be compromised. Those who should be jailed would be released en masse, with no guarantee they’d return to court for their hearings or not commit other crimes.
“The bail bond industry has been fighting us tooth and nail from before Day One, from before this law even became effective,” said Honig, currently a Rutgers University scholar and CNN legal analyst. “Because I think they recognized it correctly as an existential threat to them, and they made a lot of arguments that I think were dishonest and misleading, that it would lead to mass criminality and that we would have this lawless catch-and-release-type system.”
Reform advocates were also battling a lack of awareness from those who didn’t understand how the system worked. The scare tactics from the bail bond industry were working because many citizens couldn’t see that the so-called threats to public safety already existed with the bail system: If a person was wealthy enough, no matter how serious their crime, they could be released.
Members of the committee worked to fight those misconceptions and educate the public.
“This program doesn’t happen unless there is a recognition by society … that there’s a need for change, there’s a need to improve how we respond to individuals charged with criminal wrongdoing,” Judge Grant said. “If you are calibrating this correctly, if you are balancing society’s need for safety while also recognizing the strong constitutional foundations of presumption of innocence, you are able to hopefully create a system where you will not see the kinds of fears that are being alleged by the bail industry.”
New Jersey Pretrial Reform
The pretrial justice system in America is broken. But the Criminal Justice Reform Act in New Jersey has taken important steps toward fixing it. The 2017 act replaced a cash-based bail system with a risk-based bail system. Here is how it works.
How Cash Bail Discriminates
The 19-year-old man had been charged with possession of stolen property — a third-degree offense — after he and his friend were caught with stolen electronic equipment. Bail was set at $2,000.
The 19-year-old didn’t have that kind of money, so he sat in jail, waiting for his trial. Prosecutors lowered his bail, but he still couldn’t afford it, so he remained behind bars, missing his classes, losing his job. He turned down the option of going on probationary status because he didn’t want a record for something he didn’t do. He insisted he didn’t know the property was stolen.
For nearly six months, he sat in jail on a charge for which he would have likely not had to do time if he had been convicted. Ultimately, he was released when his co-defendant admitted to stealing the equipment.
The time the 19-year-old lost had a cost: the effects of being locked up, the classes he missed, and the job he lost — all because he couldn’t afford bail, for a crime he did not commit.
The scenario — described by Krakora, who has been New Jersey’s public defender since 2011 — was not uncommon in the state prior to 2017. Alexander Shalom, Senior Supervising Attorney at the American Civil Liberties Union of New Jersey, said that during his time as a public defender, he saw that kind of situation play out over and over. “It is not a fictional one, it’s not even a rare one,” Shalom said. “And that does not make for a just or equitable system when the difference between people’s results depends on the thickness of their wallet.”
Evidence shows that people are dramatically affected by being detained in jail, even for a short period of time. They can lose their job, their housing, custody of their children, their driver’s license. And they are at times exposed to people with serious criminal histories who could be a bad influence.
“All those negative factors come together in a money-based system that created really horrible consequences for individuals in our system,” Judge Grant said.
Research also proves that people who are detained before their trial are more likely to plead guilty, even if they aren’t, because they can’t afford all the negative consequences that come with being locked up.
“That does not make for a just or equitable system when the difference between people’s results depends on the thickness of their wallet.Alexander Shalom Senior Supervising Attorney at the American Civil Liberties Union of New Jersey
Imagine being jailed on a minor offense, but you can’t afford bail. Four months later, prosecutors tell you that if you plead guilty, they’ll agree to time served, and you can go home today.
“Confronted with that, what are you going to do?” Krakora said. “Here’s your choice: You can sit in jail and wait for your trial, which will be months away, where you may or may not be acquitted, notwithstanding your claim that you did it or not, or you can plead guilty today and you can go home. What’s a 19-year-old, 20-, 21-year-old kid going to do?”
If you take cash bail out of the equation, the incentive to plead guilty goes away and the results can be quite different, Krakora said. You might be in a position to fight the charge, or, while you’re out, working and going to school, prosecutors may see that you are not a risk and don’t belong in jail, and they offer you a plea.
“So now it’s the same outcome, probation, but in the first case with the bail system, the client sat in jail for four months, may have lost his job, may have lost his kids, an apartment, who knows, and in the other, the person didn’t do a day in jail because he didn’t have the need to bail himself out,” Krakora said.
On the flip side, under the cash bail system, judges didn’t have the option to withhold bail for the most violent of criminals, so the way they kept them locked up was by setting extremely high bail — half a million dollars, sometimes more. But even that couldn’t keep a person charged with murder off the streets if they had enough money.
“There’s no correlation between your dangerousness and your wealth,” Krakora said. “You could be a serial killer and a billionaire at the same time; they’re not mutually exclusive.”
One by one, New Jersey cleared each hurdle it faced — the Legislature passed the bill, Gov. Chris Christie signed it, and voters approved the amendment — and in January 2017, after two years of boots-on-the-ground training and preparation, its sweeping criminal justice reform took effect.
Cash bail was essentially eliminated. A person could only be detained if there was a proven risk. Those deemed most dangerous could be denied bail and remanded to jail. And in place of using money to determine who is released and who is detained, a new tool was added to the state’s arsenal: the Public Safety Assessment (PSA), which uses nine factors from an individual’s criminal history to predict their likelihood of returning to court for future hearings and remaining crime-free while on pretrial release.
The PSA is used at the time of arrest to help the law enforcement official decide whether a complaint-warrant is necessary (which means booking the person into jail) or whether a complaint-summons is acceptable (the person is released while awaiting trial). Judges also use the PSA when setting release decisions during first-appearance hearings.
New Jersey also put technology into place alongside its reform, making the process quick and efficient: The person under arrest has his fingerprints scanned, which then prompts his criminal history to be transferred to an electronic complaint, which launches the PSA and generates a score — all within about 15 minutes, Judge Grant said. Everything about a person’s case is in one electronic file that can be sent to and accessed by any part of the system.
Forty years of New Jersey criminal history is now at the fingertips of law enforcement, prosecutors, judges, and defense attorneys.
“We’ve created this strong technological infrastructure that automates the criminal justice process from arrest all the way to the person’s sentence and beyond,” Judge Grant said. “That is an extraordinary strength of New Jersey’s system that I think goes unnoticed. Accurate data is the foundation of a successful utilization of the algorithm. You need to feel confident in the data you have.”
Having the ability to easily access that data is also essential to studying the effects of New Jersey’s reform. Is it being implemented as written? Is it achieving what it set out to do?
Early reports point to yes and yes.
The State’s Report
Each year, Judge Grant delivers a status report to the Legislature and governor breaking down the state’s reform effort and how it has progressed. In his 2018 report, he used multiple data points to paint a picture of a fairer system — and a smaller jail population.
There were 6,000 fewer people incarcerated on Oct. 3, 2018, than on the same day in 2012. Only 4.6 percent of individuals in jail were held on bail of $2,500 or less, compared to 12 percent in 2012. And the average time a person spent in jail pretrial dropped from 62.4 days in 2014 to 37.2 days in 2017 — a decrease of 40 percent.
Overall, New Jersey’s pretrial jail population had declined 43.9 percent from the end of 2015 to the end of 2018.
At the same time, 47 percent of the jail population consisted of people charged with or sentenced for at least one violent offense, compared to 35 percent on the same day in 2012. Those high-risk individuals who were deemed a possible danger to the community or a flight risk were no longer able to leave jail simply because they had the money to pay their way out.
And the fears raised by bail reform opponents were not being realized.
Research showed that court appearance rates remained high (a slight decrease from 92.7 percent in 2014 to 89.4 percent in 2017) while the rate of alleged new criminal activity stayed low (a statistically insignificant increase from 24.2 percent in 2014 to 26.9 percent in 2017). Defendants released under bail reform were no more likely to be charged with a new crime or fail to appear in court than defendants released on bail under the old system.
New Jersey also found that the PSA had been “remarkably accurate” in classifying a defendant’s risk. “It found that as risk scores increase, actual failure rates of compliance increase in step,” the report noted.
An External Evaluation
Redcross, the MDRC researcher, has been studying bail reform and the use of risk assessments for years and considers it the most critical issue the nonprofit is researching.
“It is so important to basic human rights and fairness,” she said.
There’s also been little research done on it. So when New Jersey launched its reform — the centerpiece of which is the risk-assessment tool — Redcross leapt.
Though the state was doing its own analysis, having a second, external study — one with a more complex methodology — would take subjectivity out of the equation, she said.
“MDRC is known for our rigor and objectivity in policy evaluation. We’re outside the system and our interests lie solely in building objective evidence,” she said. “I think it’s important that there is an external evaluation of pretrial reforms because you eliminate questions of subjectivity.”
Arnold Ventures saw MDRC’s independent research as an essential tool in determining whether New Jersey’s criminal justice reform was working, which is why the philanthropy funded the analysis.
“There’s no such thing as too much research, especially when New Jersey has taken such dramatic steps in pretrial justice practices,” said James Cadogan, Vice President of Criminal Justice at Arnold Ventures. “So having New Jersey do a self-analysis in reports to the governor is incredibly important, and having the independent voice of MDRC, through its analysis, is really important. All of that contributes to the overall goal of understanding what happened and why, so that in the future, other jurisdictions who are currently looking at what they can do will have as much information as possible.”
MDRC ultimately found that its research findings aligned with that of New Jersey’s, which Redcross says adds credibility to the conclusion that the state’s bail reform is succeeding.
“New Jersey set out to make those changes, and it is supported by the data,” she said. “The data show they achieved what they set out to do.”
The MDRC analysis found that New Jersey’s reform has been successful in nearly eliminating money bail and releasing more defendants on complaint-summonses and without conditions; in other words, there are far fewer people in jail awaiting trial.
Law enforcement officials issued more complaint-summonses and fewer complaint-warrants in the first year of reform — indicating that where officers would have pursued immediate arrest and jail time in the past, they now default to summonses for less-serious charges.
The length of time defendants spent in jail in the month following their arrest also dropped significantly.
Redcross attributes the success of New Jersey’s criminal justice reform to the state’s ability to not only bring all its stakeholders together and find common ground but to put in the work to ensure the changes were made systemwide — that the new policies and procedures played out in practice.
“It requires cooperation among all of the system stakeholders — judges, prosecutors, court administrators, public defenders, police — and so this was, I don’t know if it’s unprecedented, but it’s a significant accomplishment in itself and to have all of those stakeholders agree to make the changes and follow through with actually changing their practices to meet the goal.”
Can Bail Reform Sweep the Nation?
As an early adopter of bail reform — and with continued positive news and numbers coming out of the state — New Jersey is being hailed as a model of what successful reform looks like. And criminal justice reform advocates hope that other states will look at the data, look at the difference the reform has made in New Jersey, and follow suit.
Honig — the former New Jersey prosecutor — said that despite the resistance states will inevitably face from various corners, “it is absolutely worth it and absolutely the right thing to do.”
“It’s really just a question of if there is political will to do it and whether people are willing to put aside their sort of traditional party line or ideological views and look at the greater good,” Honig said. “We were able to do that here in New Jersey for a lot of different reasons, not because we’re saints, but just because a lot of interests happened to align and a lot of like-minded people happened to be in positions of authority at the same time. So it’s doable, but it’s not easy.”
Judge Grant is proud of what his state has accomplished with criminal justice reform, but he knows this isn’t the end of the work or the only solution out there.
“I think it would be presumptuous for us to say that we implemented these reforms and they have significant roots in the community, that they will last forever,” Judge Grant said. “You’ve got to nurture those reforms, you’ve got to continue to do outreach to the community, you’ve got to continue, as we are doing, to use the evidence and say where should it be modified, where should it be adjusted? I tell people it is very presumptive to believe you can replace a system that existed for 300 years in two and a half years. It takes a much longer period of time to say that your foundations are firmly entrenched and this new way of doing business will last into the foreseeable future.”
Still, jurisdictions considering reform can gain a lot from looking at what New Jersey has done, said Arnold Ventures’ Cadogan.
“New Jersey has taken up that baton, and to have the results that they’ve had over the past several years is truly significant and should be a learning point for any other jurisdiction that is considering pretrial justice reform,” said Cadogan, who is confident that “New Jersey is just the tip of the iceberg” when it comes to states taking action to reform their criminal justice systems.
“The recognition throughout the country from coast to coast that this is something we can change about our jail system and how we detain people pretrial is of incredible importance,” he said. “We can’t waste this moment.”
Funding Bail Reform: The Pretrial Services Program
New Jersey recently overcame one of the biggest challenges it faced during the implementation of its criminal justice reform: funding. In the beginning, the cost of its new pretrial services program was being funded through an increase in court filing fees—but that wasn’t nearly enough.
“Even with careful limits on staffing levels, which are at the bare minimum to meet the program’s needs, and aggressive cost-control measures for electronic monitoring and drug testing, annual expenses for the program exceeded revenues from filing fees in fiscal year 2018 for the first time—as expected,” Judge Glenn A. Grant noted in his 2018 report.
The pretrial services program is essential to New Jersey’s bail reform. It gives the state a way to monitor those defendants it releases who aren’t of a high enough risk to be detained but aren’t low enough to be released without conditions.
The purpose of the program is to help defendants show up to court and stay out of trouble. Some are required to have periodic check-ins with pretrial services staff regarding education or employment. Some are electronically monitored with location devices or detained at home. Others may be court-ordered to undergo drug-testing or medical, psychological, or psychiatric treatment. And all of that takes money.
To Judge Grant’s relief, the issue was resolved in this year’s state’s budget; the program from here on out will be treated like any other ongoing state operation and given dedicated funding.
Alexander Shalom of New Jersey’s ACLU was pleased to hear that the funding issue was resolved but said the legislature needs to take the long view and provide more money to ensure the reform will be successful down the road.
“Remedying that is a hugely important step in the right direction, but obviously dedicated and insufficient funding doesn’t get the job done,” Shalom said. “We want funding to be both dedicated and enough.”
With more funding, the state could address the reasons why people sometimes don’t appear in court.
“We need to ultimately transform from a system that sees failure to appear as a risk to a system that sees failure to appear as an opportunity to support a person,” Shalom said. “Most people who don’t show up in court … their lives are hard, their lives are complicated, they don’t have access to transportation or child care or time off of work.”
If the pretrial services program had better funding, it could provide bus passes or child-care vouchers. With better funding, people could be connected with even more resources if they want them: substance abuse treatment, mental health treatment, and housing assistance programs.
Legislators need to consider all the money that is being saved by making sure people are showing up for court and not having to deal with the consequences associated with bench warrants, Shalom said—not to mention the significant money being saved by having a smaller jail population.