Whether it is because of shows like CSI or Law and Order, the concept of bail is commonly understood in our society as an amount of money that is necessary before someone can be released from incarceration pending trial. The reality of bail is that while an accused is innocent until proven guilty, they are incarcerated unless they can afford not to be. In a traditional bail system, freedom is dependent on finances, and that inherent unfairness between those who can afford freedom and those who cannot is at the forefront of the changes made under the Criminal Justice Reform Act. We applaud these changes. We support a pretrial system where money no longer determines liberty. We are also cognizant of issues that these changes may have created.
What is Bail Reform?
In 2014, New Jersey citizens voted on amending our Constitution to allow the courts to order pretrial detention of a person in a criminal case. The referendum passed with 61.8 percent of the vote, and the Criminal Justice Reform Act (commonly referred to as “Bail Reform”), became law on Jan. 1, 2017. Bail Reform was not just a few additions and removals to an old system of bail, it was a complete undoing of it. Young lawyers practicing criminal law were placed on equal footing with the most seasoned attorneys, because everyone found themselves in the same uncharted waters. Now, instead of bail being imposed, the prosecution can file a motion to keep defendants detained pending trial. At this pretrial detention motion, the court must be convinced by clear and convincing evidence that detention is necessary because the defendant is either a danger to the victim/community, a flight risk, or may obstruct the criminal process. If not convinced, the court may release the defendant with certain conditions, or even just on his own recognizance. While bail may be a condition of release, it has been rendered nearly obsolete with courts preferring to utilize conditions such as reporting or electronic monitoring. If the court does grant a detention motion then, rich or poor, the defendant will be incarcerated pending the disposition of his case. The prosecution then has 90 days to indict the case, and 180 days to bring it to trial, absent several categories of excludable time.
Bail Reform in Action
For young lawyers practicing criminal law, these changes have only benefited them. Under the old system, the attorney could argue successfully for a lower bail, but the burden would still be on the client to raise money to afford it. Now, if the attorney convinces the court that their client is not a danger, a flight risk, or will obstruct the criminal process, then that client is let out of jail. We note that after one year in action, Bail Reform has reduced the jail population by 20 percent. The young attorney can now turn toward their client, and oftentimes the client’s family, and explain to them how soon they will be home, rather than how soon they need to put up their home as collateral for bail.
Bail Reform not only corrects injustices in the pretrial system, it also ceases to unduly punish innocent family members who are burdened by a defendant’s poor choices. We’re certain that young attorneys have felt the thrill of ensuring that a client—who may have made a serious error of judgment, and who may have a family who needs them at home—is released rather than forced to sit in jail for months, maybe longer, before their case is resolved. We note that out of 44,319 eligible defendants across New Jersey this past year, only 18.1 percent were detained, while 70.1 percent were released on pretrial monitoring. Out of those 70.1 percent, it is likely that under the old system many of them would have sat in jail long enough to lose their jobs, their homes, and maybe altered their live irreparably. Now, they are given a chance not to lose it all for the benefit of themselves and their loved ones.
Some may argue that these defendants should not be given more chances and that incarceration pending trial is the appropriate deterrent to crime. However, those complaints forget that under the previous system, it was money that determined whether someone was incarcerated and not the crime. Moreover, nothing in our new system stops a court from keeping a recidivist criminal detained. Our new system actually improves the potential that dangerous defendants remain out of the community. For instance, we are certain that a young prosecutor has been pleased to ensure that a wealthy defendant stays incarcerated pending trial for a serious crime. Under the previous system, even if that wealthy defendant was charged with murder, they could be released into the community if they could afford it. Rather than giving more opportunities for crime, Bail Reform has given more opportunities for courts to keep dangerous individuals out of our communities.
Bail Reform Concerns
The positive benefits of Bail Reform are undeniable and quantifiable, but there are still concerns about the system. One of the ramifications of Bail Reform is the administrative and financial burdens it places on counties and municipalities. Bail Reform strives to have a pretrial detention hearing within days. That places greater demand on the officers preparing discoverable items like investigative reports, as well as greater demand on prosecutors who must obtain discovery, redact it, and provide it to the defendants. Greater demand means less time for other matters. Moreover, officers must now contact a prosecutor every time that they place a defendant on a warrant, which has resulted in many sleepless nights for prosecutors on call. To keep up with the increasing demands imposed by Bail Reform, many counties and municipalities needed to hire additional prosecutors and law enforcement. We must ask the question of how well can this statewide system continue to work if it demands too much from local budgets?
We are also mindful that Bail Reform gives courts great discretion in determining whether or not a defendant should be detained. Even though Bail Reform provides judges with public safety assessments and numerical scores regarding violence, criminality and flight risk to help them determine an appropriate pretrial decision, they may disregard them completely. In the old system, bail ranges were given and judges were constrained by them. Now, how one judge handles a detention hearing can be widely different from how another judge handles it, even with the same set of facts and in the same county. This creates a new kind of disparity that young attorneys may encounter. We must ask the question whether the discretion that Bail Reform gives to the courts should be limited somehow to ensure more uniformity across the state.
Bail Reform One Year Later
Despite some issues, with a year in the books, Bail Reform has been a resounding success. New Jersey has received an “A” grade from the Pretrial Justice Institution, and the jail population has continued to decrease. While the previous bail system blurred the lines between money and freedom, our new system focuses on the person rather than on their pocketbook. While we understand that with any sweeping legal changes there will be bumps along the road, we can only support Bail Reform because it has created a path that is more fair, more just, and where money and liberty are no longer interwoven.
The NJLJ Young Lawyers Advisory Board is a diverse group of young attorneys from around the state. Follow them on Twitter, @YoungLawyersNJL.