Handcuffs with gavel on a wood background (DenisLarkin)
New Jersey is about to embark on the most ambitious program of criminal justice reform in our collective memory. On Jan. 1, 2017, the state will shift from a system that relies principally on monetary bail as a condition of pretrial release to a relatively objective risk-based system, using both monetary and nonmonetary conditions and methods of pretrial supervision. No longer should poor defendants languish for months, or even years, in jail—separated from their homes, families and employment—because of the inability to meet relatively small amounts of bail.
On the other hand, due to a voter-approved revision to the New Jersey Constitution, bail can now be denied if the court finds by clear and convincing evidence that no conditions of release would reasonably assure the person’s appearance in court or protect the safety of the public. To partially offset the possibility of prolonged pretrial detention, the Legislature has also adopted a Speedy Trial Act that for the first time sets specific deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.
This historic package of criminal justice reform measures was the welcome result—unfortunately rare in today’s politically charged climate—of the use of reason and a willingness to compromise exercised by advocates from all quarters, ranging from law enforcement proponents led by the governor, to rights groups such as the ACLU, the NAACP and the New Jersey Institute for Social Justice. It has entitled New Jersey to make a rightful claim as a national leader for positive, sensible law reform that has survived the temptations of demagoguery that are endemic in the area of criminal justice.
Yet we imagine there is already a judge or two who fears—simply because she is not endowed with preternatural powers of prognostication—that she may the unlucky jurist who is the first to release a pretrial defendant who then acts counter to all the risk-assessment tools that have been developed and commits a headline-worthy offense. Then there will follow the “I told you so” reactions from hindsight prophets invoking the image of the latest victim, and who call for retrenchment and use of preventative pretrial detention as a “common sense” response to dangers lurking in our midst that have been set free by the nefarious agents of the perceived liberal criminal agenda. We saw this happen in 2011, when an early release program sponsored by then-Assemblywoman (now Congresswoman) Bonnie Watson Coleman, requiring parole six months before the maximum release date, was hastily repealed amid accusations that a resulting murder was on her conscience.
So rather than wait for that “Willie Horton” moment, we freely admit it now: that moment will come when the criminal justice reforms being implemented now will be the “but for” cause of the release of someone who then commits a serious crime. It is simply the inevitable result of the law of averages and the unavoidable imperfections of any system designed to predict future human behavior. We hope we can remind everyone now, before passions are aroused, of the fallacies of making or altering public policy based on post hoc rationalization over one event, however unfortunate. The “butterfly effect” (small causes can have large effects) may be valid in chaos theory, but not, we hope, in policy formulation. We certainly hope that this welcome reform will not test the adage, “fiat justitia ruat caelum.”