• Joshua Couce

Does Bail Reform Work as Intended?


The State of New Jersey has become a leader in criminal justice reform, from Drug Court to Pre-Trial Intervention. One of the many recent and controversial changes New Jersey has made is with Bail Reform. New Jersey’s Bail System is moving away from a monetary system, towards a risk-based system that is more objective and fairer to defendants. While other places such as Washington, D.C. and the federal government have reformed bail, and while others have unsuccessfully tried, New Jersey’s reform efforts are the most extensive. Under the old law, defendants who were of financially secure backgrounds could post bail and be released even if they posed a serious risk of flight or danger to the public. A 2013 study discovered that nearly three in four people in New Jersey county jails were waiting for their day in court, and that around 40% could have walked out of jail if they could afford bail. Digging deeper, bail reform was sought due to studies indicating that about 12% of New Jersey’s county jail inmates were unable post bail of $2,500 or less, with more than two-thirds of these indigent populations being of racial, cultural, or ethnic minorities. These pressures came about as both political and social pressures mounted in New Jersey to make such a change.

To examine bail on a national scale, a majority of those being held in jails in the United States have not been convicted of a crime. Specifically, upwards of seventy percent of those people in county jails are being held pre-trial, and are people who cannot afford bail. If we look at the application of today’s monetary bail in the context of the Excessive Bail Cause of Eight Amendment, the Involuntary Servitude Clause of the Thirteenth Amendment, and the Equal Protection Clause under the Fourteenth Amendment, an argument may present itself that New Jersey bail reform may eliminate any arguments where these constitutional protections may be violated through a monetary bail system.

New Jersey Governor Chris Christie – a former federal prosecutor – is quoted with saying at the signing of the New Jersey Bail Reform Act that, “Under these reforms, our justice system will be both more effective in protecting our communities from dangerous, violent repeat offenders” and “Fairer to those non-violent offenders who do not to deserve to sit in what has become the equivalent of debtors' prison because they can't afford to post the bail.” Provisions regarding this bail reform measure include: 90-day indictments; Central Judiciary Process (CJP) Court being open on Saturdays; special hearings for those held without bail; and early disposition conferences. However, the most controversial is that most defendants are expected to be released without monetary bail upon an assessment of flight risk and danger the community or witnesses. This assessment is conducted through a Public Safety Assessment (PSA), which provides three pretrial risk indicators: (1) a six-point “failure-to-appear” scale regarding the likelihood the defendant will fail to appear in court; (2) a six-point “new criminal activity” scale indicating the likelihood the defendant will engage in new crimes upon released; and (3) a “new violent criminal activity” flag, which flags defendants who are seen to be more likely to engage in violent crimes upon release.

This point system allows judges use evidence based risk assessments and risk to public safety to determine whether a defendant will stay in jail or be free to leave through a score based system (so to speak) needs to be met for an individual to subjected to pretrial detention. However, the law permits prosecutors – within their discretion – to apply for pretrial detention and to rebut the presumption in other cases when there is a first or second degree offense dictated under the No Early Release Act, firearm cases under the Graves Act, crimes involving domestic violence, and more generally, any case where the prosecutor believes there is a serious risk of flight, danger, or obstruction. What this means is that Prosecutors have significant discretion as they see fit, but the New Jersey Bail Reform Act is still the law.

New Jersey’s Bail Reform identifies and works to correct injustices brought forth under the bail system, especially for indigent minorities and first-time, non-violent drug offenders, this reform does not adequately balance community protection against the release of arrestees. There are multiple examples where this does not work, including: a child sex offender being released prompting police to go door to door to warn people of this individual; a residential burglary suspect was arrested, released, rearrested for the same, released again, and rearrested (at least five time) for the same upon a continuing cycle that led to multiple burglaries across three New Jersey counties because of the new bail reform law; a meth manufacturer was released; drug deal with a loaded gun was released; a corrections officer charged with distributing child pornography was released; an individual charged with first degree attempted murder was released; a teacher charged with sexual contact of three students was released; a man who died from an overdose was released twice; an individual charged with aggravated assault on a police officer was released; an individual arrested for firearm and drug charges was released under the bail reform, only to commit an actual shooting; and a fugitive charged with shooting another person was released. While New Jersey Bail Reform is trying to treat racial minorities and poorer populations in a fairer way, as society should, these examples exemplify that New Jersey Bail Reform is not adequately protecting the community at the same time; it is allowing those who have committed back onto the streets because a certain amount of points were not met to mandate detention until trial.

Police have said that the New Jersey Bail Reform Act is making their job of keeping the community safe a lot harder, and is increasing crime. The instances cited above clearly support this assertion even with numerical statistics. The solution I propose is simple: New Jersey, as well as other states around the United States need to eliminate the monetary bail system and adopt a straightforward hold-or-release system. Specifically, those charged in violent crimes, crimes against children, multiple or significant narcotic arrests, crimes that have a high potential for recidivism, public harm, or flight, or individuals have at least two felony convictions should be detained until trial. Otherwise, those who do not fall within any of these categories should be released until trial with conditions as deemed appropriate by a judge. This assertion holds weight because the charges that would require an individual be held until trial are ones that require significant time in prison upon conviction. There is no doubt that bail reform is needed, but New Jersey Bail Reform, as it currently stands, is ineffective in meeting the goals of bail.

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