A year ago (early 2017) under Governor Christie, New Jersey switched from a cash bail system to one wherein judges use a risk assessment algorithm to determine whether a defendant should be released or locked up in jail while awaiting court processing. As noted in a Feb. 20th, 2017 story for NJ.com, the system was "similar to the federal system and the one in place in Washington, D.C., but New Jersey is the first to roll out such a system statewide." As reported for a September 2017 story in Wired.com, factors that determine a person's risk score include their age at present arrest; whether their arrest was for a violent offense; prior convictions (both misdemeanor and felony); past history of violence; and any prior incarcerations. The call for, and action on, bail reform have spread to other locations including Atlanta, GA, Philadelphia, PA, Maryland, and even New York City with Mayor de Blasio announcing that one of the notoriously dangerous Riker's Island jails will close by summer 2018.
The complaints about bail include that it disproportionately, and unconstitutionally, impacts the poor, keeping them locked up because they cannot afford their bail. Not being able to afford bail, or being denied bail, means that an accused individual ends up incarcerated before being convicted. They're technically innocent until proven guilty either through trial or accepting a plea bargain; but they're not free to go home. How free can someone be as a 'pre-trial inmate'? A long delay in processing their case may have an individual sitting in jail for months, potentially in violation of their Sixth Amendment right to a speed trial. In early 2017, New Jersey's Bail Reform and Speedy Trial Act was heralded as ground-breaking, although not everyone was pleased with the change. The bail bonds industry, for one, has been hurt by the shift. Police and some prosecutors also complained about the risk of releasing potentially dangerous individuals back into the community. (But then again, there's that pesky Sixth Amendment thing. Dangerous, possibly; but not yet convicted.)
Fast forward a year to February 2018. How is New Jersey's new no-cash-bail approach working out? A newly issued report from the New Jersey Judiciary notes that the data show "a reduction of the pretrial jail population by 20% from January 1, 2017 to January 1, 2018, and a reduction of 35% from January 1, 2015 to January 1, 2018." The new approach also seems to have increased the speed with which defendants are initially processed through the court, in keeping with the new law's requirement that the accused be indicted within 90 days; and intent that the amount of time they can spend in jail awaiting trial be limited. This is all good, right?
Except that there's the issue of cost, which was raised back in 2016. As recently reported by both NJ.com and the Press of Atlantic City, the new system appears to be going broke fast, with costs greatly exceeding revenue brought in. (The program is funded by court fees, rather than funding through the State's budget.) As noted in the report, the new law set up a Pretrial Services Program, which operates 24/7 (as in every single hour, every day) and statewide employs a staff of 267, including managers and supervisors. Judges and other staff are on call to "address emergent matters". The report notes that in "slightly less than one-third of the counties, county jail staff assist in responding to emergent monitoring alerts. Pretrial Services staff handle these emergent alerts in all other counties." As noted in NJ.com on February 13, 2018, the "highest tier of pretrial monitoring, which requires defendants wear GPS monitoring bracelets, was particularly taxing on court staff.... Keeping tabs on the 3,686 defendants entered into that tier last year required 24-hour staffing. In a few counties, local jails have taken up the duty of responding when a defendant goes missing, but in most jurisdictions around the state, that responsibility fell on the civilian court staff." Similarly, as noted in the Press of Atlantic City on February 16, 2018, counties have had to hire additional staff for sheriff's and prosecutor's offices, and the courts, because of a 48-hour deadline to decide whether an individual can be freed or must remain in jail. As noted in the article, "Courts now must be open on weekends and holidays to adhere to this deadline."
So in a nutshell it comes down to money. And where it will come from. The New Jersey budget is already running a deficit. The state's pension program is coming up around $50 billion short. The new Governor, Phil Murphy, got elected with an ambitious set of promises, including raising the minimum wage to $15/hour and making tuition for community college free. Maybe he'll pay for this through the millionaire's tax he promised, or from new tax revenue brought in through legalizing recreational marijuana. Where could funding needed to keep the Pretrial Services Program running come from? It's a program with good intentions, to make due process more fair for the poor and pre-trial court processing more in line with the Sixth Amendment. While not on the top of the Governor's to-do list, funding the state's new approach to (no) bail shouldn't fall off the radar either.
