NJ Bail Reform Sees Strides Despite Growing Pains

By Jeannie O'Sullivan | December 1, 2019, 8:02 PM EST

Shortly after Robert Bianchi became Morris County, New Jersey's top prosecutor in 2007, and a decade before the state implemented significant bail reforms, he combed through a list of old cases and discovered something troubling.

One defendant charged with theft had been sitting in jail for two years because she was unable to afford the few thousand dollars she needed to make bail.

The shortcomings of a monetary-based pretrial detention system also impacted Bianchi's time in private practice as a criminal defense attorney, a career that bookended his time as Morris County's top law enforcement official.

The "arduous process" of working with clients in jail had attorneys navigating limited visiting hours, occasional lockdowns and rules against electronics, said Bianchi, now of The Bianchi Law Group LLC in West Caldwell. And once attorneys get through security, they're meeting their client in a small room without the benefit of a laptop or phone.

Those conditions undercut "your ability to properly defend a person," Bianchi told Law360.

But the tide turned in January 2017, when the state Legislature passed the New Jersey Criminal Justice Reform Act, which implemented a risk-based pretrial detention system in which monetary bail is reserved for defendants determined by a court to be a danger to the public.

In April, the New Jersey Administrative Office of the Courts released a report showing there were 6,000 fewer people incarcerated in October 2018 than in the previous six years.

More recently, another report from the MDRC's Center for Criminal Justice Research, a social policy think tank based in Washington, D.C., and Oakland, California, also demonstrated that the reforms have had an impact.

Compared with New Jersey Judiciary figures spanning eight years before bail reform was implemented, the MDRC found in its Nov. 14 report that more defendants were released without conditions, there were fewer arrests for less serious charges like disorderly conduct, and police issued more summons complaints than arrest warrants.

The MDRC found that the largest reductions in arrests occurred during the summer months, when arrests usually peak. Based on information from the New Jersey Judiciary, there were 15,264 arrests in July 2017 — 2,000 fewer than predicted based on pre-bail reform averages for that month, according to the report.

That same month, the actual number of warrants issued was 15.6% less than predicted, and the number of summons handed out increased by 16.5%, the MDRC found.

Defendants facing summons complaints remain free before their first court appearance, whereas a warrant requires a pretrial detention determination before a defendant appears before a judge for an initial hearing. Under the reforms, bail before an initial appearance is no longer an option for defendants arrested by warrant.

Overall, the report shows that fewer defendants were arrested following charges, and those who were detained got out of jail faster. While bail reform didn't have any initial effect on the number of arrestees who got booked, the number of those who spent 10 or more days in jail dropped by a third.

The evaluation of New Jersey's bail reforms — which are based on efforts by Arizona, Kentucky and Pennsylvania — unearthed the "most rigorous evidence to date" about bail reform success, MDRC Director Cindy Redcross said.

A key element of the reforms is a public safety assessment, or PSA, tool developed by Arnold Ventures, which funded the MDRC report. The PSA analyzes a person's criminal history to determine two risk factors that would weigh in favor of pretrial incarceration: the likelihood an undetained defendant would commit a new crime and would fail to show up for court hearings.

New Jersey Attorney General Gurbir S. Grewal hailed the bail reform measures in the wake of the MDRC report, noting there hasn't been any increase in crime since they were instituted.

"Bail reform has given us the ability to ensure that the most dangerous offenders are detained and cannot buy their way out of jail, while nonviolent offenders, who previously languished in jail if they were too poor to post bail, are now able to return to their families and jobs," Grewal said in an emailed statement to Law360.

"Not only have we significantly reduced the number of inmates in our jails, we have ensured that there is a fair and legitimate basis for holding those who are detained," he added.

Predictably, the reforms — which survived a legal challenge that wound its way up to the Third Circuit — have drawn fire from the bail bond industry.

Bail bonds had made up between 60% and 70% of Clifton, New Jersey-based Nationwide Bail Bonds' business, according to owner Ron Olszowy. Citing the cost impact of bail reform, he noted that police departments now have to divert resources to finding defendants who skipped out on court hearings.

"It's not bail reform, it's bail deform," Olszowy told Law360.

Yet supporters of bail reform note that the monetary-based bail system gave law enforcement too much leverage. Attorney Blair R. Zwillman, a solo criminal defense practitioner in Morristown, said the pressure of incarceration effectively forced defendants to accept plea deals.

"Now they're at liberty and can have time to adjudicate their case," Zwillman told Law360.

Not all criminal defense attorneys feel time is on their side, however.

Under the speedy trial timelines imposed by the New Jersey Criminal Justice Reform Act, a case must be tried within six months of a defendant's first appearance. That time crunch has Hackensack-based attorney Ron Bar-Nadav scrambling to build solid defenses for his clients on tight deadlines.

Prosecutors may have taken years to bring cases against some of those clients, who have ranged from gang members to physicians.

"It might take us a year to go through financial files. Sometimes it takes literally months to get a DNA analysis," Bar-Nadav said.

The PSA element of bail reform has also drawn criticism.

The American Civil Liberties Union's New Jersey chapter supports bail reform overall, but says the PSA is biased against African American defendants. That's because the assessment tool considers previous marijuana arrests, according to Alexander Shalom, senior supervising attorney for ACLU-NJ.

He pointed to a May 2017 report in which the ACLU-NJ was highly critical of how the state was enforcing marijuana laws. The report said that in 2013, black New Jerseyans were three times more likely to get arrested on pot charges than whites, despite similar usage rates.

"We have to consider excluding that question [from the PSA]," Shalom told Law360.

Mentally ill defendants, or those that appear so, are another population that doesn't necessarily feel the benefits of bail reform, said Somerville-based criminal defense attorney James A. Abate. He recalled how one of his clients acted a bit odd in court, so the judge, unsure if the defendant was a public safety threat, sent him to jail. He's been there for seven months, Abate said.

Ironically, the prosecutor has recommended probation in the case, according to Abate.

"So we went from a position that there was no way he could ever be safely released, to doing exactly that," Abate said.

Judge Glenn A. Grant, the acting administrative director of New Jersey state courts, wants to dispel the misconception that the PSA or any one factor is the ultimate decision-maker with respect to a defendant's pretrial detention status.

"What we've said consistently is, lawyers and judges will be engaged in conversations [about the pretrial detention status]," Judge Grant said.

The reforms are subject to review and analysis, and the protocols for implementing them are still being developed, according to Judge Grant, who said he thinks the MDRC report is "very consistent" with what the judiciary has observed.

"The findings that you see show that the vast majority of people are still showing up for court, and the vast majority of people are not getting in trouble," he said.

--Editing by Breda Lund and Rebecca Flanagan.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!