New Jersey becomes Ground Zero in national bail reform movement

When Elie Honig first encountered New Jersey’s criminal justice system up close about five years ago, he was “surprised and dismayed” that even dangerous killers could be set free before trial.

As a prosecutor fresh from the federal system, Honig was overseeing a murder case where the accused had been especially brutal in his killing.

Elie Honig

Elie Honig

“Keep him in jail,” Honig recalled telling his aides. “Can’t. Everyone gets bail in New Jersey,” the aides responded. Jersey’s constitution required bail, which in turn did nothing to prevent even the most vicious of criminal suspects to be freed if they had the money to make bail.

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Honig, who later would become one of the key advocates against the cash bail system, is now the director of the state’s Division of Criminal Justice. And he is watching as New Jersey implements a newly transformed pretrial system that finally considers the risk an accused might pose to the public and greatly diminishes the long-known unfairness of money bail.

That system, adopted by voters and the legislature in a process that took several years, is designed to not only keep dangerous people locked up but, especially, to lead to the release of thousands more who remain held in custody until their trials because they are too poor to afford bail.

As a result, it has made New Jersey Ground Zero in the nationwide debate over bail reform

Since Jan. 1, judges, prosecutors and defenders have been required by state law to use a robust screening mechanism that has replaced bail with much more frequent releases.

In fact, the presumption is that unless the risk of flight or future criminal behavior is high, release is required. Bail is a last resort.

The newest state statistics reveal how profoundly the system has changed in just three months.

* Last year, on Feb. 29, 2016, the number of men and women in jail awaiting trial stood at 9,000. On this Feb. 28, the jail population had dropped 27 percent to 6,573.

* A new requirement that judges must give permission to prosecutors before they can jail someone pretrial is having a substantial impact. Between Jan. 1 and Feb. 28, judges denied 45.7 percent of all detention motions filed by prosecutors.

* Increasingly, defendants are being charged by summons rather than warrants, so that increasingly those likely to be eligible for release are not routinely brought into custody and held up to 48 hours. Statewide the number of complaint-warrants dropped by nearly 42 percent through January and most of February over the same period in 2016. In five of New Jersey’s 21 counties the number fell by more than 50 percent.

New Jersey, like much of the nation, has been debating the inequities of money bail for decades. In most places, little has changed.

In New Jersey, which has entered the forefront of bail reform, getting here wasn’t easy.

Gov. Chris Christie, the former U.S. Attorney in Newark, called for changing money bail in 2012. It took until Jan. 1 to get the issue studied, for voters to amend the state’s constitution and for the legislature to pass enabling legislation and to set up a new pretrial bureaucracy.

The old system was criticized for both letting out dangerous suspects and keeping locked up poor people charged with minor crimes.

The state courts had interpreted the old bail clause of the state constitution to prohibit judges from considering public safety concerns when setting bail.

“Of particular concern to law enforcement, the release/detention decision is made without regard to the danger the defendant poses to the community, victims, or witnesses. …In other words, our current system all but ignores the interests of community protection,” the attorney general concluded of the old system.

Beyond that were the startling symptoms of the unfairness of bail – half of all those charged with crimes were jailed pretrial regardless of their public safety risk and nearly 13 percent of them couldn’t afford to pay just $250 to be freed pending trial.

“There are decades of data” supporting the reforms, said Judge Glenn Grant, the acting administrative director of the state’s courts.

At this stage, can the new system be deemed a success?

Grant says he’s “satisfied with the progress to date.” And Honig agrees. “All things considered, it’s gone well.”

Yet beneath the statistics and the positive assessment by Grant and Honig, both advocates for the original reform, there is grumbling.

Prosecutors in several counties flat out declined to talk about the changes. Some police departments, including in the state’s largest city, Newark, point to increased crime as a result of the releases.

And the remaining bail industry in New Jersey continues to be stridently opposed.

As one law enforcement source conceded the reluctance to publicly discuss the changes comes in part because the new system is so new. And court personnel are still working to get accustomed to it.

One bail bondman, Christopher Blaylock, has created a website that highlights the criminal behavior of some of those released before trial.

His examples can be chilling.

“Our mission is to provide Real-Time updates on Criminal Justice Reform issues and expose the dangers and recklessness of CJR to citizens, victims, voters, legislators, and law enforcement.  You may have heard one side of the story…now hear the other side,” Blaylock has written on his site.

In Newark, police officials say some of those arrested are committing new crimes.

Those arrested for such crimes as thievery to finance drug addiction – a charge that often ends in a pretrial release – can then return to committing more burglaries to support their habits.

“Most of the property crimes are by people who have drug addictions. Once released, they resume that activity to feed their drug addiction,” said Derek Glenn, a spokesman for the Newark police department.

Judge Grant notes that the bail industry has long opposed changes in the bail system.

The industry has had its financial life line “disrupted in a significant way,” Grant said. Opposition “is to be expected.”

Honig also says that some of the stories cited as evidence of trouble with the new system are not accurate and are “distortions.”

While there are “pockets of discontent on all sides,” Honig said. “Predictions that the sky would fall” have not happened, he added.

Grant notes that the system is in its 11th week – time enough to show progress as well as kinks.

But the state is prepared to modify things if problems surface, he said. Already, the legislature has approved the hiring of 20 new judges beginning in July to help ease the administrative burdens process has produced.

In the end, Grant says he’s satisfied that New Jersey’s system makes for a “clearer and fairer process.”

In those states contemplating similar changes to their bail and pretrial systems, New Jersey is likely to offer ammunition to both sides of the debate.

In a televised interview on March 10, Gov. Christie put it this way.

Recurring crime by those released pretrial “has to be counterbalanced against the thousands of people who were incarcerated who wouldn’t have created any crime and who now have been unemployed, non-supportive of their family and don’t have a life to go back to.”

To read more about New Jersey’s bail changes, see Christie’s study assessing bail reform. Attorney General Christopher S. Porrino’s directive setting the new pretrial policies is here.