New Jersey now has spent a full year leading the nation in bail reform. Throughout 2017, it no longer decided whether to release the accused based on the cash they could put up and instead considered whether defendants were a risk to public safety.
Judges now review a public-safety assessment for defendants and a preliminary law-enforcement report, and decide within 48 hours of arrest whether to detain or release them. They also consider a prosecutor’s recommendation, if any.
In his year-on review of the new system, Judge Glenn Grant, acting administrative director of courts in New Jersey, noted that cash bail had resulted in defendants spending months or years in jail awaiting trial. He called that bad for communities, costly for counties and “profoundly unfair.”
One measure of the success of bail reform is a more than 20 percent reduction in the number of N.J. pretrial inmates.
Another came last November, when the national nonprofit Pretrial Justice Institute gave New Jersey the only ‘A’ grade among states in its first assessment of state pretrial justice systems, calling the new system “phenomenal.” New Jersey scored high for the near-elimination of cash bail and the use of pretrial assessments, two reforms advocated by the institute.
Like nearly everything, bail reform has downsides too, some already obvious and some yet to be quantified.
Bail bond firms are doing a fraction of their former business in New Jersey because they provided bail — at a significant cost — to the accused now deemed not a danger and being released.
Nationwide, bail bonding in 2016 was a $2 billion industry with nearly 25,000 firms and 30,000 employees, according to IBISWorld’s market research. Much of that business is destined to disappear, along with many of the businesses and jobs. That’s unfortunate, but pales compared to the harm to society from a system in which two-thirds of American prisoners have not even been convicted.
Some of the defendants being released are committing new crimes. The vast majority of cases appear to be nonviolent crimes, but some have been violent, which calls into question the effectiveness of the pretrial assessments of the threat defendants pose to public safety. More time and data are needed to determine the extent of crimes by those released, to make long-term comparisons to crime under the new and old systems, and to adjust bail reform to optimize the outcomes.
A major adjustment already was made last summer, when the state attorney general directed prosecutors to seek detention in more cases, including those involving gun crimes and sex offenses.
Other adjustments are certain. One the state should make now is to put its bail reform system on sounder financial footing by amending the Bail Reform and Speedy Trial Act to eliminate the need for round-the-clock, weekend and even holiday pretrial release determinations. That is causing county justice systems to add personnel and increase costs beyond the court fees that should be sufficient for the program — even though the number of prisoners has been cut by more than a fifth.
The act requires a determination of a defendant’s status within 48 hours, which is an admirable goal, but also an abstract ideal almost designed to unnecessarily increase the size and cost of government.
Requiring a determination within two business days would be just as admirable, even more so since it would avoid or reduce the need for defendants to pay higher court fees or taxpayers to make up the difference.
Bail reform is great and New Jersey is justifiably proud of leading a very beneficial national trend. Let it continue to lead by analyzing and modifying the pretrial detention system to best deliver justice, cost savings and safety.