A bail bonds agency. Photo: Paul Brady/Shutterstock

New Jersey’s wide-ranging bail reform legislation that all but eliminated cash bail has resulted in a 20 percent reduction of statewide jail population in the first year of its enactment. California just passed legislation that will completely do away with the monetary bail system, the first of its kind in the nation, starting Oct. 1, 2019.

Many of the achievements of these reform acts are already well-known. Andre Vitale, a New Jersey public defender, says:

I believe the [New Jersey] bail reform Legislation is the best solution …

The only crime for which there is a presumption of imprisonment in NJ … are crimes that carry a potential life sentence. For all other crimes there is a presumption of release, which the State must overcome.

If pre-trial recommends that a person be detained, the Prosecutor must file a motion for detention, stating their basis to overcome the presumption. That motion is heard before a Judge and the defense has the right to full discovery prior to that detention hearing. The defense can adjourn the hearing to conduct investigation and call witness for the hearing to challenge probable cause or the detention motion. The defense has an automatic right to direct appeal of a pre-trial detention decision …

Less than 20% of the clients I represent in NJ are held in jail, whereas in NY, that number was well over 50%.

However, some are more cautious. Albert Hsueh, a California public defender, says:

At this time I cannot form an opinion as to how the bail reform act may affect our cases. Certainly in theory the act seems to do away with the unfair process of benefitting clients who have more financial resources. However, it may be that in reality, defendants will still be held in custody for low-level crimes while they are presumed to be innocent. … I predict that many Judges as well as prosecutors will formulate new methods to keep defendants in custody.

Both California and New Jersey criminal lawyers reported concerns over the almost-automatic detention of low-level criminal defendants who previously would have been eligible for release upon the posting of a minimal bail. Daniel Bibb, a New Jersey criminal defense lawyer, says that:

now many county prosecutors are getting involved in local detention decisions in disorderly persons offenses. In almost all repeat domestic violence offenses that would rise to disorderly persons offenses, every county’s default is to detain. It causes the attorneys to file detention motions in supreme court … . If he is detained, he will most likely be detained longer than it will take for you to dispose of the case by pleading guilty.

Liz Jarit, a New Jersey Public Defender, says:

Under the new system there are 3 days that people are held in detention before the detention hearing. That window is higher than when people could have posted bail and be released immediately.

The Human Rights Watch also notes a similar concern about the California’s legislation:

The new [California] SB 10 establishes extraordinarily broad categories of people excluded from release from custody pre-arraignment, including, among others, for low-level violations if the person has a pending case, no matter how minor, or if a person has been arrested for a restraining order violation, even if the arrest turned out to be wrongful or the restraining order invalid.

Human Rights Watch Opposes California Senate Bill 10, The California Bail Reform Act” (Aug. 14, 2018).

Another common criticism of both systems was the use of computer algorithms based on previous criminal justice statistics which were derived from activities that were later ruled to be illegal and unconstitutional, e.g. illegal stop-and-frisk searches that were systematically performed in NYC during the Broken-Windows policing age. “Activists argue that the algorithms are fundamentally flawed because the data they use to predict a person’s risk could be influenced by structural racism.” Madeleine Carlisle, “The Bail-Reform Tool That Activists Want Abolished,” The Atlantic (Sept. 21, 2018). The California non-profit Essie Justice Group argues that “[s]ince the criminal justice system operates in discriminatory ways–disproportionately harming communities of color, women, and low-income people–these algorithmic assessments can be dangerous.”

Yet another big concern commonly reported from both New Jersey and California practitioners was the incredible power these bail reform acts vests in the arraignment judge. Jeff Adachi, the San Francisco Public Defender, says the “original bill has been gutted by special interests that want to take power away from the community and concentrate it in the hands of probation officers and judges.” Jarit says:

Prosecutors are supposed to provide [the discovery material to the defense] before the detention hearing. Depending on the county, in some counties judges allowed prosecutors to provide discovery 3 days before the detention hearing, while in some other counties it would be 5 minutes before the hearing. So now the New Jersey Supreme Court just came out with a new rule saying that prosecutors must provide the discovery material to the defense] at least 24 hours before the detention hearing.

In drafting and adopting its own bail reform legislation, New York should reflect upon these common concerns reported from these “laboratory states.” First, New York should adopt stricter detention hearing standards than in California or New Jersey. California S.B. 10 says “[f]or good cause, the defense or the prosecution may seek a continuance of the preventive detention hearing. If a request for a continuance is granted, the continuance may not exceed three court days unless stipulated by the parties.” If New York were to adopt similar standards, it could potentially mean at least three months or more before a detention hearing can be held, especially in some highly congested courts in major metropolitan areas such as New York City.

Second, New York should do away with automatically triggered mandatory detention scheme. The California S.B. 10 says that “[t]here shall be a rebuttable presumption that no condition or combination of conditions of pretrial supervision will reasonably assure public safety if the court finds probable cause to believe either of the following: [violent felony or high risk to victim and society.]” This could potentially result in a situation where the court must order a first-time violent felony defendant, who possesses no danger of missing a future court date nor pose any risk to the society, into an involuntary pretrial incarceration. Such a mandatory detention scheme could also result in clients who would have otherwise chosen not to plead guilty and fight the case now forced to plead guilty in exchange for an immediate release from custody because of the long delay in the detention hearing and the unavailability of the monetary bail option. Bibb says that this happens often in New Jersey, where the time the defendant spends in jail waiting for the detention hearing does not count toward the calculation of the time served at the sentencing.

Third, New York should not condone the adoption of a computerized pretrial risk assessment program in its bail reform legislation, unless there is first a satisfactory proof that such risk assessment program is free of any taint of biases that can result from using statistical data created as the result of current and past discriminatory and illegal law enforcement activities that taint the criminal justice system. As the saying goes, ‘garbage in, garbage out.’ Bibb says that “even the prosecutors say the tools that they are using very often includes level of supervision that New Jersey courts are unprepared for,” possibly because of the discriminatory nature of the computer algorithm. Vincent Southerland, the executive director of the Center on Race, Inequality, and the Law at the New York University Law School, says:

My concern [about using the tools] is that what you could have is essentially racial profiling 2.0. We’re forecasting what some individuals may do based on what groups they’re associated with have done in the past.

Madeleine Carlisle, “The Bail-Reform Tool That Activists Want Abolished,” The Atlantic (Sept. 21, 2018).

Youngjin Choi is an assistant public defender at the Cattaraugus County Public Defender’s Office in Olean, N.Y.