NJ Bail Reform: Slow it Before it’s Even Started?
In six weeks, perhaps the most significant reforms to New Jersey’s criminal justice system in nearly 70 years will go into effect. But some lawmakers want to make last-minute changes over the objections of the courts.
The proposal was advanced last week by the Assembly Judiciary Committee but faces an uphill climb. It would need at least four more legislative approvals, plus the signature of Gov. Chris Christie. Some of those in charge, including Christie, are advocates of the changes.
At issue is the Jan. 1 implementation of a new risk-based system for detaining defendants charged with a crime, rather than a resources-based one. It’s designed to reduce the number of people stuck in jail for months because they can’t afford even low amounts of bail. The changes also allow some defendants accused of the most serious crimes to be denied the opportunity to be released on bail.
The program applies a new formula for assessing defendants and guarantees defendants a release decision within 48 hours. The bill advanced last week would allow people who aren’t charged with first-degree or other serious crimes to be able to post bail for a faster release before the assessment is done.
“I’ve got grave concerns about the real world when we get to Jan. 1,” said Assemblyman John McKeon, D-Essex.
“I want us to be a model. I don’t want us to be the example of why you can’t do it, if we preordain this to fail,” McKeon said.
Counties concerned about the costs of the reforms who say state funds aren’t covering the bills may take legal action that could invalidate the change. Bail bondsmen – who may lose significant amounts of business – are among those advocating for the Legislature to intervene, saying the reform will overwhelm the system by detaining too many people for a couple of days apiece.
"That’s an entirely reasonable way of reducing what we have as an approaching, I’ll use the metaphor, train wreck,” said John Furlong, a criminal defense attorney who represents ABC Bail Bonds Inc.
“We’re underfunded now in terms of the number of judges that are hearing bail hearings. We’re underfunded now for trials. This is going to complicate and compound that problem,” Furlong said.
The idea of altering the bail reforms drew a sharp rebuke from criminal-justice reform advocates, including the judiciary itself.
Dan Phillips, legislative liaison for the Administrative Office of the Courts, said the judiciary strongly opposes the proposed changes.
“What this bill does is it talks about stepping back before we even got started,” Phillips said.
“All those people that have money will be released from jail. People without money will go to jail and get a risk assessment,” he said.
Phillips said the state would have to operate two bail systems simultaneously – which it can’t accommodate with only six weeks to go, and can’t afford.
“To re-engineer that infrastructure would double the cost of the system. It’s one system or the other, and the one system is leaning on unconstitutionality,” Phillips said.
Groups that advocated for the reforms, which were enacted in 2014 by the Legislature and Christie and then given a green light by voters when they approved a constitutional amendment, sharply criticized the lawmakers for now hedging.
“There’s something fundamentally different and fundamentally disgusting about a Legislature saying: You know what? We don’t have enough money right now for this bail reform, so what are we going to do? Are we going to put more money in it? No! We’re going to concede defeat,” said senior staff attorney Alexander Shalom of the American Civil Liberties Union of New Jersey.
“The idea that we want to derail this before it ever goes into effect is very, very troubling,” said Roseanne Scotti, New Jersey state director for the Drug Policy Alliance.
Even if the Legislature doesn’t alter the bail reforms, the Council on Local Mandates might.
The New Jersey Association of Counties may file a complaint saying that the pretrial assessment program violates the scope of the constitutional amendment and amounts to an unfunded mandate. They’re facing costs – for things like videoconferencing equipment, additional assistant prosecutors and sheriff’s department resources on weekends – that aren’t being covered by the state.
The association has approved filing a complaint but hasn’t yet submitted one, hoping to negotiate a resolution with the Christie administration and judiciary, said its executive director, John Donnadio.
“It would create significant issues, and I can tell you, we haven’t taken filing this complaint lightly because of the long-term ramifications of it, and the fact that there are so many unknowns if we are successful,” Donnadio said.
Assemblyman Michael Patrick Carroll, R-Morris, said he suspected the bail reform efforts didn’t have sufficient state funding – but now that so much work has gone into planning the change, he worries what comes next if the pretrial detention is invalidated by the Council on Local Mandates.
“If the council does what I think it might do, and probably should do under the law, I’m wondering if there’s a contingency plan,” Carroll said.
The challenge to the pretrial detention program would likely not affect the other portions of the criminal-justice reforms, such as denying bail to defendants deemed to be dangerous and new rules guaranteeing speedy trials.