New Jersey Bail Reform, the Numbers Are In: State Spent Hundreds of Millions of Dollars to Get Worse Results
As the New Jersey Courts take their annual trip over to the legislature to justify their budget this week, on the eve of the hearing they released a report that has been in the making for over two years – “Report to the Governor and the Legislature.”
The Bail Reform Act in New Jersey was enacted exactly 809 days ago, having also two years prior to prepare. The Courts are just now getting around to presenting the first meaningful statistics on the bail reform program, which also happens to conveniently be on the eve of a hearing where they will highlight that the Courts are completely out of cash for their cash bail reform plan. With filing fees that fund the program drying up, they will certainly have their collective hands outstretched to the legislature to feed their never-ending pretrial release bureaucracy.
So, with additional statistics and reporting to now analyze the outcome of New Jersey’s criminal justice reform (CJR), did the program work? Do we have all of the information to make that determination?
The results were, and we are being kind here, not so stellar. With millions in funding continuing to come from court filing fees, the Courts are once again looking to the legislature to fill the gap – to the tune of even more millions.
Let’s get right to the point: is New Jersey the new Camelot of bail reform? While the report issued by the Courts is woefully inadequate in many respects, especially given all of the cash they were provided to buy new computers and programming to make this process easier, it does illuminate some interesting statistics. Other than a continued (and now slowing) decline in jail population, the results are not good.
First, it is important to understand that the State increased the use of a summons instead of an arrest to 71% of all cases in 2018, up from 54% in 2014. In other words, in 17% of total criminal cases there was not an arrest in 2018, where there would have been an arrest in 2014. That represents 22,951 people that were not arrested in 2018 that would have been in 2014. If any gains have been made, then this is most certainly the only reason that it could possibly have had an impact. Yet, this has nothing to do with “cash bail.” This is a change in arrest procedures. More importantly, this could have been done for free, and no constitutional amendment was required.
Second, by all measures, the new system performs worse than the old money bail system being run in the State in 2014. The rate of failing to appear in Court increased by 45.21%. The rate of disorderly conduct offenses being committed while on bail increased by 14.78%. New indictable offenses while on pretrial release: a 7.87% increase.
Third, let us not forget that the bail reform act was called the “New Jersey Bail Reform and Speedy Trial Reform Act.” Except, according to the Courts, the cases are now less speedy than before according to what they perceive to be an important measure. The number of cases resolved in less than 22 months dropped to 78.2% in 2018 from 80.4% in 2014. In other words, the need for speed was not the reality.
Fourth, the jail population decrease is pointed to as another success of bail reform. Except the pretrial jail population had been dropping by greater percentages than it did in 2018. There are many causes for this general drop in New Jersey’s jail population as we have previously noted. For example, the pretrial jail population dropped by 20.7% in 2016 as compared to 2015. 2016 was the last calendar year prior to the enactment of bail reform on January 1, 2017. The pretrial jail population in 2018 declined by only 13% as compared to 2017.
Fifth, the package was supposed to reduce racial disparities in the system. The pretrial jail population was comprised of 54% black defendants in 2014. It is still comprised of 54% black defendants in 2018. While the report does note that the times in jail have fallen in some categories, the reality is still that black defendants face anywhere between 172% and 182% greater time in jail than their white counterparts in terms of getting released after arrest or until their cases resolve. The report recommends only one solution to this unfortunate quagmire: “The overrepresentation of black males in the pretrial jail population remains an area in need of further examination by New Jersey’s criminal justice system as a whole.” Sounds like business as usual to us.
Despite being able to break out many of the statistics to investigate racial disparities, no effort was made to provide any descriptive statistics as to the racial break-out of those for whom preventative detention is sought or achieved. In addition, there is no outcome data on what happens in the 22% of cases where detention is sought that the motion is dismissed at the request of a prosecutor or judge. We believe a large percentage of those are persons who are pleading guilty at a higher rate due to the threat of preventative detention.
Sixth, no effort was made to test the Arnold Foundation PSA risk assessment algorithm for racial bias, despite having ready and voluminous electronic data in order to do so. Clearly it did not reduce the overall racial disparities in the system. The question, however, did the recommendations of the PSA label more black defendants as dangerous than their white or Hispanic counterparts? No answer.
Is Liberty the Norm?
Seventh, the ACLU of New Jersey kept banging the drum at the time of the reform efforts that “liberty is the norm” in order to get these reforms passed. Liberty is no longer the norm: of those defendants released, 90.9% of them will be supervised by a pretrial services agency – stripping defendants of their basic civil liberties with a dragnet of state funded electronic monitoring devices, drug testing, and other onerous probational type requirements. Of course, the results show that the supervision doesn’t work—failure to appears are up as are new crimes while on release.
Lastly, the report notes most importantly one key fact and omits one other key fact. Noted is the fact that the program is out of money. Not noted is what the total cost has been to New Jersey—at the State and local level.
The funding stream for CJR was suspect from the beginning and on a collision course with fiscal reality. Raising and banking court filing fees, according to the Courts, covered $171.2 million of the unknown, unexplained total state costs of the system and in addition to some unknown amount of local costs. The jail savings would be so great, according to reformers, that we could save our way out of the costs. These savings have not materialized, and according to John Donnadio, executive director of the New Jersey Association of Counties in a February, 2018 interview, while the pretrial jail population has dropped, "that hasn't translated to cost savings as of yet.”
So, is the system more fair? It is posited that there are fewer poor people in jail? How would we prove that? Is it that more rich people are getting summons to court rather than poor people? The report notes that the improvements sort of speak for themselves and because money bail was taken out of the system, then therefore we pronounce the new system automatically more just and fair than the old one. We have to ask, based on what?
Going to a summons process could have easily been done under the old system as could have officers have had more criminal history information in making cite and release decisions rather than arrest in the first place. The complaint-warrant system, however, is much worse than the old system, and at a cost in the hundreds of millions of dollars now and going forward, we have to ask—is the benefit worth the cost?
New Jersey has now removed a system that performed better and at no cost and traded it for a liberty restricting system that has deprived the right to bail to 17,886 defendants in just 808 days – at a cost of hundreds of millions of dollars. Failures to appear have increased, recidivism is on the rise, all while depriving the right to bail to 20% of those charged with a felony. In fact, the old system outperformed the new system even with the accountable release of those 20% now locked up with no way out under the current system.
Ask anyone in the criminal justice system a simple question: if you could spend $250 million on bail reform for these results or on other programs within the criminal or social justice space that would have a far greater impact on mental health and addiction disorders, which would you choose? Few but the true believers would choose the NJ Bail Reform Act.