Is Criminal Justice in NJ About to Become an Unfunded Mandate?

As New Jersey prepares to implement a major overhaul of its criminal justice system in January, county governments will attempt to block the effort, claiming they will be forced to pay millions of dollars for new prosecutors, sheriff’s officers, and capital improvements with no help from the state.

The New Jersey Association of Counties estimates the reforms will cost each county $1 million to $2 million, an unfunded mandate they view as particularly challenging, given the caps passed in 2011 prohibiting governing bodies from raising their tax levies by more than 2 percent. The association, a nonprofit organization that represents all 21 counties in the state, plans to file a complaint on Friday with the New Jersey Council on Local Mandates, which was established in 1996 to consider laws, rules, and regulations that impose unfunded mandates on counties, municipalities, and school districts.

“I’m still holding out hope that we can come to some resolution by the end of the week,” said John Donnadio, executive director of the association. “We’ve been trying to avoid filing this complaint for some time, but I think we’re at the end of the line.”

The new law determines whether someone is released from jail based on how risky they are rather than by whether they can post bail. It also speeds up the timetable by which a defendant’s case must be heard. And it calls for new technologies like videoconferencing for court appearances and the electronic filing of criminal complaints.

While the reforms are slated to be implemented on January 1, the council’s ruling could take a few months, but it has the constitutional authority to invalidate any law, rule, or regulation that imposes an unfunded mandate.

“We haven’t taken this very lightly, because it has the potential of undoing the entire law, which we support as a matter of public policy. The problem we have is what it will cost,” Donnadio said, adding that the council has been working with the Legislature, attorney general’s office, and county prosecutors for over a year now, asking for budget appropriations, for the establishment of a grant-funding program, and for an increase in court fees. “I’ve been holding off filing since June, because I was holding out hope that we could come to some kind of resolution, but I’m not feeling overly optimistic that we could find that.”

The requirements are the result of sweeping criminal justice reforms signed into law back in August 2014 and a constitutional amendment passed by voters months later, which aimed to change a system that many said was rigged against poor defendants, regardless of how minor their crimes.

Under the old system, all defendants, regardless of their crime, were entitled to bail (capital offenses excluded). The result is that some defendants accused of violent crimes were able to go free — if they could post bail — while those charged with more minor offenses are sometimes forced to languish in jail for months because they couldn’t come up with a few hundred dollars.

“Under the current system, you could be Robert Durst, who was a psychopath, but he could get out of jail because he could post bail, and while he was out, he murdered someone,” said Judge Glenn A. Grant, acting administrative director of the New Jersey Courts.

Indeed, a 2013 study entitled “New Jersey Jail Population Analysis,” by Luminosity and the Drug Policy Alliance showed that nearly three-fourths of the jail population had a primary custody status of “pretrial,” in superior or municipal court, and of that group, more than 5,000, or 38.5 percent, could have been released but remained in custody solely because they could not come up with bail. Worse, research found that incarcerated defendants are more likely to plead guilty, simply because they wanted so badly to go free. Under the new system, judges can deny release before trial if the accused is viewed as a flight risk or likely to commit another crime.

The system would work like this: When someone is arrested, they are fingerprinted electronically and an electronic copy of the arrest record and fingerprint are sent to the Judiciary, which then makes the record available to law enforcement in a new statewide crime-tracking system. The police department in conjunction with the prosecutor then charges the individual, and those charges are sent to a municipal judge, who determines whether there is enough probable cause and whether a complaint summons or a complaint warrant should be issued. If it’s a complaint summons, the person is released. If it’s a complaint warrant, he or she is sent to the county jail.

For those in county jail, the Administrative Office of the Courts (AOC) will run an algorithm, called a public safety assessment, that identifies an individual’s degree of risk on a scale of 1 to 6. County prosecutors will then use those numbers to determine whether to make a motion at the first hearing that the individual be detained, and if they are to be released, what kind of conditions should be imposed. Some crimes will automatically result in detention, even if the accused’s number is low. For instance, when Ahmad Khan Rahami, 28, who set off bombs in Manhattan and on the Jersey Shore, was put into the system, his number came out low, but authorities would have overridden that number due to the nature of his crimes. As is the case now, a judge will consider arguments from both the prosecutor and the defense and then determine whether the accused should be detained.

The reforms also call for a strict court timetable. The first hearing must be within 48 hours. If the prosecutor makes a motion to detain, a “plenary hearing” must be held within three days, at which the state must provide clear and convincing evidence that the accused should be detained. The individual must be indicted within 90 days, the trial must begin within 180 days after that, though the clock stops ticking if certain motions are made, usually by the defense, such as an application for drug court or a competency hearing. If the case isn’t heard within two years, the defendant must be released, though their charges are still pending.

But freeholders, and even some prosecutors, are questioning where the money will come from to pay for the pretrial service units that must be set up at each county prosecutor’s office to handle first hearings and to oversee those that are released into the community. Some will be released conditionally with electronic bracelets, which were not funded, or they may be required to seek counseling or education, which must then be monitored at a cost. The association of counties said several of its members must make capital improvements to accommodate the new staff as well as people coming from the AOC to run the risk assessments.

For example, Cumberland County estimates it will cost $1.5 million to relocate its county clerk staff and upgrade its current county to make room for the pretrial services division. Officials from the Morris County Prosecutor’s Office told their county freeholders that they needed “10 to 15” additional staff members to provide pretrial services, at an estimated cost of $1.5 million. Other prosecutors are redirecting existing staff because they can’t afford to make new hires, at least by January.

“There are a lot of voices now saying, ‘Hey, wait a minute. We passed this directive, and now we’re finding we don’t have enough money to fund this pretrial services division,’” said one prosecutor, who spoke on the condition of anonymity.

Moreover, under the new system, many of those charged with crimes will be going to county jail for at least 24 hours — until they have their first appearance — so additional sheriff’s officers may also be needed, or existing staff may have to work overtime.

“Everybody’s going to jail now. If you’re on a warrant, you’re going to jail. There’s no way you can just bail out of municipal lockup,” the prosecutor said, noting that before, someone accused of a crime might be in jail in the local police station for a few hours before his wife or her uncle came up with some money. They never even made it to the county jail. Now, everyone on a warrant will be going to jail for at least 48 hours, the prosecutor said.

There is also a concern that judicial vacancies, which have been at record highs in recent years, would make it difficult to keep to the timetables spelled out in the law, because there simply won’t be enough judges to hear all of the cases. Many counties are already sitting on a backlog of cases even before the reforms kick in — typically the more complex homicides, sex crimes, and child-abuse cases — where defendants have been in custody awaiting trial for a year or two. While some of those vacancies have been filled, there are still 28 judicial posts unfilled, out of a total of 443. Vicinages with the largest vacancies are Essex, which is missing six of its 34 judges, and Camden, which is missing five of its 16 judges.

State Senate President Stephen Sweeney (D-Gloucester) said this week he plans to address this issue by introducing legislation that would allocate $9.3 million a year to fund 20 new state Superior Court judges. His bill, if passed, would raise the number of state judges to 463. He also hopes to soon fill some of the vacancies.

“Everyone has been working to make sure every county has a full complement of judges. I think everyone realizes it could be a potential problem,” said Kim Yonta, a criminal defense attorney and treasurer of the New Jersey State Bar Association.

Yonta said she knows there are a lot of financial concerns with regard to implementation and that each county prosecutor must make it work within the budgets allotted them by their county freeholders, and that includes staffing on weekends, if they are to hold the required hearings within the timetable spelled out in the statutes.

“All the offices need to consider, are they going to have prosecutors on call? Are they going to have to hire new people?” Yonta said. “Staff is definitely a big concern for the prosecutors. The public defenders’ office is allocated money by the state, but each county must allot their own money for each office.”

Joseph Krakora, who heads up the state office of the Public Defender, said a lot of people across the state have been working hard over the past year or two to get the state ready for implementation in January, and he has no reason to believe the judiciary will not be able to meet its obligations as they are spelled out in the statute.

“Quite the contrary. I’ve seen a tremendous amount of work done in anticipation of the effective date of the law, including technology, court rule changes, including all aspects of implementation,” he said, noting the state budget will be funding the judiciary and court system, while counties fund their respective prosecutors’ offices and sheriff’s departments. “I’m not involved in the funding. The judiciary is doing what it can with the resources it has, and I assume the counties are doing the same.”

He says he is not privy to the dynamics between county prosecutors and their county governments, with respect to what prosecutors think they need when the new law comes into affect. His priority is that there are hundreds of people sitting in jails in this state who can’t make minimum bail, a situation he says is simply unacceptable.

“You can’t defend a system that discriminates against the poor by tying your ability to get out of jail on whether you have any money. No one can defend a system where you can commit the most violent crime or have the worst criminal record and you can buy your way out of pretrial detention,” he said.

Judge Grant says it was always recognized that if you’re now requiring prosecutors to give more oversight to law enforcement and process cases more quickly, there will be a bigger strain on resources, and that will come at a cost. In fact, the governor has assigned the attorney general to review those issues, he said, though he questions some of the estimates that have been circulating from other cost reviews, including one that estimated the cost of the reforms at $215 million.

“Even if it was 10 percent of that amount, it would be high,” he said.

In fact, Grant anticipates a cost savings, because under the new system, fewer people will be incarcerated. He cited Mecklenburg County, NC, which includes Charlotte, where bail reforms resulted in a 20 percent drop in its jail population, prompting it to consolidate its correctional facilities.

“And they’re not unique. States and counties that have implemented this public-safety assessment have seen a reduction across the board in jail population,” Grant said, but he acknowledges there will be costs in the short term before those savings are achieved.

“Sometimes government needs to be like business. You have to make a short-term investment for a long term success,” he said.

Alexander Shalom, senior staff attorney at the American Civil Liberties Union of New Jersey, said funding the reforms may become an issue, but he’s confident the judiciary will be able to meet its obligations under the new rules.

“That doesn’t mean the funding structure is sound, and it doesn’t mean it will remain sound over time. And so there may come a time when the Legislature is called on to find a way to fund this system better. But in the short term, I have every confidence the judiciary will be able to handle it,” he said.

Shalom said he is a fan of the reforms in principle, though he’s got some issues with the algorithm being used and who will ultimately be detained. If the new system leads to different people being locked up and not fewer people, or if detention hearings are being used in garden-variety cases, then the ACLU will have serious concerns and will bring legal challenges, he said.

“There are a lot of things we plan on monitoring, to make sure it achieves its purpose,” he said. “But we think the principle of bail reform, as a tool to reduce mass incarceration in this state, is extremely useful.”