Does Bail Reform Work?

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Eighth Amendment) 
Americans cherish their tradition of independence, a tradition that demands that government guarantee certain freedoms to its citizens. One unspoken freedom, not found in the Declaration of Independence or Constitution is “freedom from fear.” Everyone needs to feel safe in their homes and neighborhoods from those who might repeatedly criminally victimize them, even after they have been arrested and charged with a crime.
Americans also feel that people should not be placed in jail based on their ability to pay for pretrial release. 
The Founding Fathers saw, and sometimes experienced, the abuses of the English system of criminal justice in the late 18th century, and sought to prevent wholesale incarceration of “presumed innocent” persons by guaranteeing a bail system for pretrial release that is not “excessive.”
This system of surety to guarantee appearance at trial seemed to have worked well until some constitutional scholars began to see the current bail system was disproportionately benefiting the rich, while the poor waited months behind bars for their day in court, simply because they are unable to pay.
Many additionally argued that jailing un-convicted persons before trial may be considered, in and of itself, to be “cruel and unusual punishment.”
New Jersey addressed this issue in January 2017 with the passage and implementation of the Bail Reform and Speedy Trial Act.
On Feb. 13, the New Jersey Administrative Office of the Courts released a report detailing highlights of the first year of Criminal Justice Reform in the state. 
The report provides data on the performance of the program, from arrest through pretrial monitoring, covering its first year from Jan. 1, 2017 to Jan. 1, 2018.
After one year’s experience with the new Bail Reform and Speedy Trial Act, the state released its first “report card” to evaluate how the system was working.
The Herald reviewed the first year’s report card (N.J. Criminal Justice Reform Report) to examine New Jersey’s criminal justice reform program that seeks to accomplish the goals of guaranteeing appearance at trial by accused defendants while simultaneously protecting the public.
The local impact on Cape May County was described by County Prosecutor Jeffrey Sutherland, his First Assistant Rob Johnson, and an official with a local police agency.
History of Bail Surety, Bail Reform
The history of the cash bail system in America evolved from English common law, as did most of the nation’s principles of criminal and civil justice.
The American system of bail seeks to find ways to guarantee a defendant’s appearance at trial while keeping the public safe from those who would continue to commit crimes if those offenders were not incarcerated.
The concept of freeing accused offenders, who are presumed innocent, in lieu of financial bond seemed a reasonable and effective method to avoid pretrial incarceration of large numbers of citizens without due process.
This concept, as adopted by the freedom-loving Americans of the 18th century, led to the Eighth Amendment that prohibits “excessive” bail. As always, the devil was in the details.
What is “excessive” bail? Is pretrial freedom based substantially on the person’s ability to pay money (post bonds), “cruel and unusual” punishment, as well as a violation of the due process, and equal protection clauses of the 14th Amendment?
The Bail Reform and Speedy Trial Act assesses the potential risk posed to the community by accused offenders and recommends either release with monitoring or incarceration until trial. 
The approach essentially eliminates the practice of posting a bond (forcing them to pay money) to be held by the courts, until the accused completes the judicial process of adjudication for the offense charged. 
New System Overview
According to the “Criminal Justice Reform Report to the Governor and the Legislature,” for 2017, “The primary purpose of Criminal Justice Reform (CJR) is to create a fairer system of pretrial justice, in which the decision to release or detain the defendant prior to trial is based on an analysis of the risk the defendant poses that applies evenly, regardless of the defendant’s finances.”
To that end, the state created a system that attempts to identify defendants who have been charged with a crime that falls within the definition of “eligible defendants,” and “transformed the process of making pretrial release decisions… by implementing electronic monitoring” and other tools to enforce the state’s speedy trial requirements.
This concept begs the question, how does the state decide who needs incarceration, and who can be safely released to the community before trial?
Pretrial Services
According to the report, the Pretrial Services Program evaluates the defendant’s risk to the public and provides a recommendation to the court, based on information gathered from a risk assessment instrument called the Public Safety Assessment (PSA). 
The Decision Making Framework that emanates from the assessment process measures the likelihood that the defendant will appear in court, as well as the likelihood that he or she will repeat offend while awaiting trial.
Electronic monitoring is also an important feature of managing those who are selected to be released before trial.
The PSA referenced above specifically measures nine risk factors; it utilizes the defendant’s criminal history data to predict the risk of the person engaging in new criminal activity or failing to appear in court.
Some factors include:
•    The defendant’s age at the time of arrest.
•    Whether the current charge is a violent offense.
•    Whether the defendant has a pending charge at the time of the offense.
•    Whether the defendant has a prior disorderly persons or indictable conviction.
•    Whether the defendant has a prior violent conviction.
•    Whether the defendant has a prior failure to appear pretrial in the past two or more years.
Measuring Success
The CJR Report provides multiple views of various metrics that seek to answer the question of the law’s effectiveness.
Analysis of one year’s data reveals that prosecutors in the state filed 19,366 petitions for pretrial detention.
The above-pictured chart labeled “Chart 1” provides more detail on various elements of the system, but it should be noted that out of the 19,366 petitions, the court granted only 8,043, which means that less than half of those prosecutors wanted to be detained were incarcerated.
Revenues/Costs (source CJR Report)
Since Nov. 17, 2014, the Judiciary has collected a total of $130.9 million from court fees, which is the funding source for CJR.
As of Dec. 31, 2017, in accordance with the statutory requirements, the Judiciary allocated the funds as follows:
(1) $67.4 million to the Pretrial Services Program;
(2) $30.6 million for e-Courts;
(3) $30.9 million to Legal Services of New Jersey;
(4) On to the discretionary account.
In the first two full fiscal years of collections, fiscal years 2016 and 2017, the Judiciary collected $44.1 million and $41 million, respectively.
As of the date of the report (CJR), fiscal year 2018 collections were tracking 2.4 percent below fiscal year 2017 for the same period.
The CJR report sees revenues as a major challenge.
The report acknowledges that expenses for the system “cannot be sustained” by collecting fees alone.
The report advises that there needs to be a dedicated funding source in the future to maintain the system going forward.
Other Challenges (CJR Report)
The state also anticipates issues regarding the ability of Pretrial Services to provide some critical services to those on pretrial release, to include drug and substance abuse programs, mental health issues, and counseling for this concept to succeed.
These vital services would help those on pretrial release to remain arrest-free until their cases are adjudicated.
The report also notes that the courts cannot always respond to non-compliant defendants (emergency alerts) as quickly as they would like to.
Less than a third of county law enforcement agencies can respond to emergency alerts 24 hours, seven days a week at this time. In these cases, pretrial services personnel would need to respond.
Impact on Jail Populations
According to the CJR report, the CJR initiative was not “specifically undertaken to reduce the county jail population,” but it seems to have, in part, reduced that number. See Chart 2.
In the first year of CJR, the pretrial jail population decreased to 5,743 defendants, a 20 percent drop. It should be noted that the jail population was already showing a decline based on other factors, prior to the implementation of CJR.
According to Cape May County Prosecutor Jeffrey Sutherland, the statewide rate of decline in jail population is consistent with his findings for Cape May County.
His analysis of Cape May County jail trends since the implementation of the new system indicates an 18 percent inmate population decrease in the county from January 2017 to January 2018.
First Assistant Prosecutor Rob Johnson, who served as acting Cape May County prosecutor on the retirement of former prosecutor Robert Taylor, acknowledged that the county jail population had begun to shrink before the new implementation, based on a variety of factors including crime rate fluctuations, demographic trends, and other CJR initiatives.
“There is not enough data at this time” to say the decline is based solely on the new system” Johnson added.
Johnson further acknowledged that since the new system was implemented, 52 additional defendants failed to appear for a court date during 2017 than had failed to appear the year before, a notable increase.
Impact on Pretrial Services and County Criminal Justice Resources 
Sutherland spoke about the financial impact this system has had on local criminal justice resources.
“The new system has placed significant strain on manpower in order to comply with their responsibility to complete ‘discovery packages’ in time for the courts to make their decision regarding detention or release.”
Sutherland noted that police and prosecutors must assemble all relevant materials used to prosecute a defendant prior to trial as part of the rules of criminal procedure.
That package is provided to defense counsel and the court, and in the case of pretrial release decisions, the package is used as part of the assessment made by the court regarding the defendant’s eligibility for release.
The shorter timeline to complete the package (within 48 to 72 hours), has placed additional financial burdens on all members of the criminal justice system, according to Sutherland.
Sutherland and Johnson also stated that although electronic monitoring may be used on certain defendants, there are not enough monitors or response personnel available to use that technology in all cases of pretrial release.
Normally, only defendants that pose some risk to crime victims are monitored with that technology.
Johnson addressed the risk assessment used by the courts to make detention decisions as a “good idea,” but suggested that when a prosecutor files a petition to detain a defendant, there is good reason to believe that detention is necessary in that case.
He noted less than 50 percent of all petitions to incarcerate filed statewide and in Cape May County were granted by the court. Johnson understands that judges are required to use the PSA (assessment) to make decisions, but he feels other factors and exceptions should have more weight.
“It’s a good system, but it’s not perfect,” he added.
Both Sutherland and Johnson also regret that many human services such as drug/alcohol treatment and mental health treatment services are unavailable to those who are released as part of the system and that persons who suffer from such conditions are more likely to repeat offend and fail to appear for their next court date.
Policing Issues: Are We Safer?
The Herald contacted Lower Township Police Executive Officer Capt. Martin Biersbach to determine what impact, if any, the Criminal Justice Reform program has had on one of the largest police agencies in the county.
Biersbach stated that the new system has not yet provided enough statistical insights to make a determination as to the effectiveness of the system, or the impact it may have had on crime and recidivism rates in Lower Township.
He acknowledged that the requirement to have their complete case file completed within the 48-hour window had placed increased pressure on police to ensure all elements of discovery, including any videotapes and other documents, must be available to the judge who makes the decision as to bail or release.
He stated that officers must spend more time off the street to complete reports and organize discovery packages to meet the 48-hour deadline they have to complete these tasks. Biersbach noted that there are increased costs associated with this new process in overtime to ensure that the package is complete in time, as well as decreased patrol time on the street.
Another Point of View
The American Bail Coalition is a trade organization “dedicated to the long-term growth and sustainability of the surety bail industry.” Elliott Chang, a spokesperson for the group, provided the coalition’s position on the issue of surety bail, versus pretrial release based on risk assessments.
In a letter, Chang argued that the bail surety system is effective and that studies show that regarding the pretrial release issue, “surety bail outperforms all others.” 
Chang also argued that the bail-bond system currently costs the community nothing, and further argued that those assessments that are used to make detention decisions often contain no “proper safeguards” and some systems do not even require personal interview with the offender before a decision is made. 
To learn more about the Criminal Justice Reform initiative, the entire report for 2017 from the state may be found here.

To contact Jim McCarty, email jmccarty@cmcherald.com.