Five Thoughts on NJ’s Proposed Bail Reform Measures

Five Thoughts on NJ’s Proposed Bail Reform Measures

This posting is in response to Matt Friedman's July 21st article on proposed bail reform in the Star Ledger, "Changes to NJ bail system not a done deal, Sweeney says". (Original article is viewable here.) 

Proposed NJ constitutional amendment SCR113, along with the accompanying S946, will potentially alter bail procedures for New Jersey criminal cases. Should these amendments pass, judges would be able to deny bail to some accused individuals determined to be unlikely to show up to court, regardless of bail amount set.  S946 would allow for non-monetary alternatives to bail, which could include assigning the accused to the custody of another who agrees to supervise him or her; as well as requiring that the accused – if unemployed – look for work. (See here: http://www.njleg.state.nj.us/2014/Bills/S1000/946_S1.PDF.) As reported by the Star Ledger on June 20^th (http://www.nj.com/news/index.ssf/2014/06/leader_of_legendary_civil_rights_group_fears_nj_bail_reform_measure_is_conspiracy_against_the_poor.html), the civil rights group Southern Christian Leadership Conference (SCLC) has expressed concern about S946 in particular, indicating it could disproportionately and negatively affect African Americans and poor individuals. 

I offer the following five thoughts on the proposals and Matt Friedman's article:

(1)  The SCLC’s fears about disparities in treatment by race and (not) having money are justified. African Americans are overrepresented in nearly all criminal justice data – arrest, victimization (including homicide), and incarceration.

(2)  It’s not just a concern for Blacks – Hispanics should be mindful as well. Some research has shown that compared to Whites and Blacks, Hispanics have higher bail amounts set, and may be more likely to be denied bail. (See, for example, Turner & Johnson, 2005; and Demuth, 2003.)

(3)  One word: Overcrowding.

(4)  People are innocent until proven guilty. Being denied bail and sitting in jail until a trial, or until accepting a plea bargain and the resulting sentence, means serving time before being convicted. Imagine the indignity of being locked up when in fact you hadn’t done anything, were falsely accused, or misidentified by a witness. This happens. Individuals’ right to due process must be carefully weighed against potential danger to victims or the community at large.

(5) The poor may fare worse.  The Pretrial Services Unit to be established should be mindful of not discriminating against defendants who cannot afford a private lawyer when conducting their assessments.