The “Humble Beginnings” of the Sweeping Bail Reforms Enacted by New Jersey

New Jersey has become a national leader in criminal justice reform, particularly around the hot button issue of requiring cash bail. When it passed the Bail Reform and Speedy Trial Act last year, it became one of only three locations in the United States that have virtually eliminated bail as a condition for release when someone is charged with a crime. Yet the state literally stumbled into these efforts, almost by accident, in 2012.

That was the year the Drug Policy Alliance obtained data from the state’s court system as part of its study on drug sentences. As they analyzed the data, the researchers were astonished to find that almost ¾ of individuals incarcerated in state jails hadn’t been sentenced. Of those, nearly 40 percent were in jail solely because they could not afford the bail that had been set. About 800 were being held on bail of $500 or less. The majority had been charged with a nonviolent crime such as drug possession or traffic violations. Yet they were incarcerated, on average, for about three months. 71 percent of the jail population was black or Hispanic.

Drug Policy Alliance staff quickly realized that the state’s cash bail system was the cause not only of New Jersey’s extreme prison overcrowding, but of gross injustice. Whether one had to sit in jail for months, or could return home and resume a relatively normal life until appearing in court, was determined solely by one’s ability to afford bail. Bail reform had not yet become a rallying cry. “It was really an emerging issue,” noted Roseanne Scotti, New Jersey director for the Drug Policy Alliance.

The organization published a report in March 2013, concluding that “the greatest opportunities to responsibly reduce New Jersey’s jail population are related to more efficiently and effectively managing the pretrial population.” These findings were hardly surprising to many who are engaged on a regular basis with the state’s criminal justice system, such as prosecutors, public defenders, and judges. Those people had become familiar with, and perhaps even inoculated against, the idea that money was the difference between going free or sitting behind bars. For those who weren’t deeply involved in how bail operated, however, the findings came as a shock. “It was very public and very powerful,” stated Alexander Shalom, senior staff attorney at the ACLU-NJ.

The report lit a fuse and hastened a public outcry. “It’s literally the most unsexy reading material ever,” noted Insha Rahman, project director at the Vera Institute. But it “galvanized [the organization’s] advocacy and lobbying efforts.” After its release, the Drug Policy Alliance quickly built a coalition of civil rights, community groups and faith leaders to push for reform.

The report also attracted the attention of the Chief Justice of New Jersey’s Supreme Court, Stuart Rabner. Judge Rabner gave a speech calling for widespread reform of the system, citing the Drug Policy Alliance’s finding that more than 1,500 people were sitting in jail just because they couldn’t afford bail of $2,500 or less. “That’s not a healthy practice for a system of justice,” he said.

“There was no way to read that report and not see it as a stain on the justice system at which he was at the helm,” Shalom explained. Rabner created the Joint Committee on Criminal Justice, consisting of a “who’s who of power players” from across the system, in Shalom’s words, including representatives from all three branches of the state government, prosecutors, public defenders, the attorney general, Shalom, and the chief justice.

“They’re the kind of folks who couldn’t agree about what to order for lunch together,” Scotti observed. Yet on the first day, the group voted unanimously to fundamentally transform the system, rather than attack the issues piecemeal.

“It was no longer a debate over is there a problem,” Shalom said. “The only reasonable thing that people of good faith could debate was how to fix it.”

Over the next several months, the group reached consensus on enough proposed reforms to release a report. The recommendations contained in the report formed the basis for the legislation that eventually became the Bail Reform and Speedy Trial Act. The Drug Policy Alliance quickly put its coalition to work to convince a majority of legislators to vote for the bill. “You just go out there and do the really hard, on-the-ground work of scheduling meetings, pitching ed[itorial] boards, talking to reporters, trying to get hearings,” Scotti said.

The support of the Republican governor, Chris Christie, turned out to be pivotal. Christie, a former federal prosecutor, was familiar with the federal system, which doesn’t typically rely on cash bail. “It was helpful that Christie understood the system,” Scotti said. Christie was most interested in the preventative detention piece — giving judges the power to jail people for public safety reasons instead of relying solely on bail amounts. Still, in the end, he became a leading proponent of the entire package of reforms.

Christie’s endorsement helped accelerate the momentum for the bill’s passage. “Because the governor was supportive, we had a lot of Republicans willing to look at this,” Scotti said. “All in all it took two years, which sounds like a lot of time, but as legislation goes it was actually one of the quicker pieces of legislation we had.”

The most vigorous opposition came from the powerful for-profit bail industry. Representatives argued that bail bondsmen are small business people who would be badly hurt by the legislation, and that implementing a new system would be costly. Yet most bond companies are owned by a handful of prosperous insurance companies, and their cost estimates were always highly inflated. “The bail industry, whose mendacity is truly spectacular, made up numbers…based on nothing,” Scotti said. “For the bail industry, it’s data be damned.”

Scotti described one informational hearing featuring an expert from Kentucky who discussed the state’s experience banning commercial bondsmen and implementing risk assessments. The expert said that the cost of setting up its pretrial services program had been in the tens of millions of dollars. Later in the day, a representative from the bail industry “started talking about how Kentucky was a disaster, cost hundreds of millions of dollars,” Scotti recalled. The woman from Kentucky was aghast. “She turned to me and she said, ‘I’m in the room, but it doesn’t matter.’”

Despite hiring three lobbying firms, the bond industry was ultimately unable to derail the reform movement. The combined impact of the Drug Policy Alliance report, the Joint Committee’s report, and the efforts of a large, diverse and bi-partisan coalition of stakeholders pushing for reform proved to be more powerful.

“The legislature wasn’t taking [the bail industry] seriously when they said things like everything is fine,” Shalom added. “The onus was in many ways on them to propose a better solution… And they didn’t have one.”

The legislation that eventually passed made sweeping changes. It requires that anyone who is issued a complaint warrant and arrested must receive a risk assessment within 48 hours, followed by “mini trial,” in Scotti’s words, with a defense attorney present. At that time, a judge either releases that person or holds him or her, based on risk. The legislation also increases the number and types of offenses for which summonses are to be used instead of arrests. This keeps more people out of the system altogether. For certain offenses, police must now seek permission before making an arrest.

“One of the things that really makes New Jersey unique is we did such a complete system overhaul,” Scotti said. “We deprioritized money bail, did a risk assessment, did pretrial services, and increased the use of summonses all at once.”

The impact of this legislation has already been significant. Data released this summer showed that the number of people in state jails who hadn’t yet been sentenced fell 26 percent between July 2016 and July 2017. The numbers have fallen even more precipitously — 34 percent — since 2015.

“We’ve spoken to people whose lives have been demonstrably changed by the fact that though they were arrested…they were able to get out and lead productive lives while their case was pending,” Shalom said. “They were allowed to stay employed, keep their home and housing situation, family situation.”

The reforms are attracting attention from other states. “We field calls all the time,” Scotti said. She has spoken to individuals from California, Connecticut, Florida, and Texas, among others.

“It seems unquestioned that New Jersey has started a conversation,” Shalom said. “Other states are looking to experiment and try things New Jersey has tried, and hopefully they try things that are bolder or different.”

The scope of New Jersey’s reforms should not be underestimated. It was “the biggest change in the criminal justice system in New Jersey in many decades,” Shalom said. “I wonder if the Drug Policy Alliance could have predicted the power of that report,” Rahman mused. “But it is really things like that that galvanize change.”