NJ Criminal Justice Data Law Could Spur Reforms Elsewhere

By Bill Wichert | November 15, 2020, 8:02 PM EST

A recently signed New Jersey law calls on Attorney General Gurbir S. Grewal to launch a new data collection effort into the state's criminal justice system. (AP Photo/Seth Wenig)

A new law pulling back the curtain on New Jersey's criminal justice system by requiring its attorney general to compile and analyze a wide range of information could serve as a model for the rest of the nation and fuel future reform efforts in the Garden State, experts say.

The measure, which was signed into law on Nov. 9 by Gov. Phil Murphy, calls on Attorney General Gurbir S. Grewal to set up a program to "collect, record and analyze data" on defendants 18 or older, including their race, ethnicity, gender and age, and what happens to their cases, including systematic plea negotiation information that typically goes unrecorded.

Following other initiatives in the state in recent years including sweeping bail reforms, the data collection and analysis will provide a closer look at potential problems in the system and better equip lawmakers to tackle those issues. For example, the data could provide insight on racial disparities in prosecutions and mass incarceration, experts say.

"Until we have a full picture of what's happening, there's no way to offer a solution that will be comprehensive," said Jesse Kelley, government affairs manager for the criminal justice and civil liberties policy team at the R Street Institute, a libertarian think tank.

While other states might require data collection, a key term in the Garden State bill is "compile," said Kelley, adding that "it really tasks the attorney general's office with taking a step towards distributing this data, not just having it be collected and sit." The data collection will translate "into something that can actually be useful moving forward," he said.

The attorney general is required under the bill to work with a number of law enforcement agencies on gathering information from when defendants enter the system to when their cases are resolved, and release annual reports "summarizing the data collected, recorded and analyzed."

Mikaela Rabinowitz, director of national engagement and field operations at criminal justice research organization Measures for Justice, said the law could be a national model in terms of the breadth of the data collection and the recognition of "the need to centralize these disparate sources" of information.

In a country where criminal justice data is spread across various agencies and "you can't actually assess what is going on systemwide," the law is an acknowledgment that "in order to actually understand how the criminal process is working, we need to take data from these disparate agencies and disparate sources and put it all in one place," Rabinowitz said.

"Any policy question you're going to have about the criminal justice system, whether it's about incarceration, about prosecution, about racial disparities, about violent crime, all of that is going to require knowing what's happening in each different part of the system, and so this is amazing for that," she said.

But Rabinowitz expressed concerns the legislation is vague with respect to what will be included in summary reports, as well as on the level of public access to underlying data for independent reviews.

She said "independent analyses are critical for government accountability and, frankly, for efficiency," noting that sometimes the government does not have the resources to do the work that journalists, researchers and advocates are funded to do.

Among the sources to come under the microscope will be county prosecutor's offices, a group that has "really avoided any kind of deep dive into how they operate," even as policing and sentencing have faced greater scrutiny, said Rutgers law professor Laura Cohen.

Most prosecutor's offices believe they're acting in the interest of justice, but "what this data will allow us to do is to really examine for the first time in an objective way ... what they believe that means and whether or not it's borne out" in how cases are handled and resolved, said Cohen, who is also director of the Rutgers Criminal and Youth Justice Clinic.

"Having the data, looking at the data, seeing how decisions are made at each of those decision-making points and doing it both in a way that allows us ... to identify where the racial disparities begin and build — and also what factors seem to be driving disparity in decision-making in addition to race — will be really important," Cohen said.

The law is a critical next step in "New Jersey's effort to undo the decades or even centuries of racially disparate prosecution and sentencing in our state," she said.

The data will include "warrants, arrests, charges, filing of criminal complaints, and indictments," "dismissed or downgraded charges," and "plea agreement negotiations, including data concerning plea offers extended and accepted or rejected by the defendant, plea agreements entered or rejected by the court, and whether the plea agreements involved probation or incarceration," according to the bill.

For cases involving victims, the data will include "the race, ethnicity, gender and age" of the defendant and the victims, the bill says.

"This is potentially groundbreaking legislation, and it calls for data collection and reporting that currently exists nowhere in the United States," Duke University law professor Brandon Garrett told Law360.

Garrett, who leads the university's Wilson Center for Science and Justice, pointed out that states rarely "collect any data on victims, and yet in study after study, we have found that in serious cases, the race of the victim in particular matters a great deal to sentencing."

Data on plea talks also is "typically not recorded by anyone, including prosecutors," Garrett said. Collecting "such systematic data would be enormously impactful" and "open the black box on charging in criminal cases," he said.

"One hope could be that not only will the public better understand outcomes in the system, but judges, public defenders and prosecutors will themselves better understand their work," he said.

--Editing by Philip Shea.

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