Next year bail reform starts in New Jersey and today the state’s chief justice cited one reason why: 12 percent of the jail population are defendants charged with minor crimes but can’t afford to post bail of $2,500.
For reformers, that’s a crime in itself.
“We can also demonstrate that a system that relies upon resource for money bail disproportionately affects the poor and minorities,” said Glenn Grant, acting administrative director of New Jersey courts.
After horror stories of inmates spending months and years in jail because of an inability to pay, New Jersey voters in 2014 approved bail reform and the governor signed into law what some consider is the most comprehensive state bail reform in the nation.
Bail is not to punish the accused before trial but to keep the community safe, to ensure victims and witnesses aren’t tampered with and to assure defendants show up for court.
The state’s top public defender says the new law will require a culture change.
“There really is no correlation that someone’s more likely to come to court because they posted some nominal bail. It’s not true, so you have to change the way you think if you’re a judge. You have to get away from the concept of money bail,” said Joseph Krakora, New Jersey public defender.
A major hallmark of the law: those arrested on a warrant must get a six-point assessment or algorithm hearing within 48 hours to determine bail.
“Which essentially takes various factors about the defendant, including the crimes charged and the defendant’s prior criminal history and gives you a score one through six on how much a danger this person is or how likely they are to flee,” said New Jersey Division of Criminal Justice Director Elie Honig.
One long-time criminal defense attorney says the state should be careful relying on a numeric system replacing good judgment.
“I think that there’s a political expedience that has to be guarded against where a police officer could fear criticism because he didn’t charge high enough crimes,” said criminal defense attorney Leslie Sinemus.
“We will be at the Attorney General’s Office instructing prosecutors to look at other factors, other common sense factors, that help us to determine whether this person is too much of a risk and must be detained or is low risk and should be released,” Honig said.
One municipal judge asked about domestic violence cases where victims often shy away from prosecution and the abuser goes free. How is a judge to accurately weigh bail?
“I’m a little hesitant to consider arrests without convictions. Until a person’s been convicted, he’s not been proven guilty. That said, one of the requirements that we will impose is you need to check, prosecutors and police need to check the domestic violence registry,” Honig said.
The New Jersey Drug Policy Alliance fought for the reform.
“What this law will do is it will change this from what is now a resource-based system where you have to have money to a risk-based system where folks that are really a threat to the community, higher level offenses, they may be detained and that people that do not pose any threat will get to go home and be with their families and keep their jobs and keep their housing until they have their day in court,” said Drug Policy Alliance State Director Roseanne Scotti.
Public defenders say the new law will require all those arrested on a complaint warrant to spend 48 hours in county jail before bail hearings — hearings that could fall on weekends, and hearings that assistant prosecutors must attend.
The New Jersey Association of Counties says the new law is well-intentioned but comes with a big bill for hiring more prosecutors, sheriff’s deputies and buying equipment.
“We’re hoping for some type of legislative relief, some type of appropriation from the state on some type of funding mechanism that will help offset some of these costs that the counties moving forward are going to have to incur. Otherwise it’s going to have to fall on the backs of local property taxpayers,” said John Donnadio, executive director of the New Jersey Association of Counties.
The state Attorney General’s Office is drafting a set of directives for the criminal justice system to follow, a guide for the smooth transition from a money-based bail system.
The new law takes effect Jan. 1, 2017 and many involved in criminal justice are eager to see how New Jersey really does end the practice of sending the accused to jail simply because they have no money for bail.