At the end of May, Acting Attorney General Matthew Platkin issued a directive instructing law enforcement agencies across the state to cease the practice of arresting individuals on municipal court bench warrants whose bail amounts equal $500 or less.
The practice was immediately applauded by many groups as varied as the American Civil Liberties Union of New Jersey, the state association of police chiefs, numerous members of the Black clergy and the state’s largest police unions.
To properly evaluate the new policy, it is important to understand the difference between an arrest warrant and a bench warrant.
In New Jersey, an arrest warrant is authorized by a judge or the result of a grand jury indictment. There are strict guidelines and a formal process for how a police probable cause affidavit moves to a prosecutor for approval and eventually to a judge or a grand jury. Once an arrest warrant is issued, the police are empowered to locate and arrest the suspect.
A bench warrant can lead to arrest, but it does not require that a prosecutor petition a judge or convene a grand jury. Bench warrants can be issued directly by a judge, often at a municipal level, and they are most frequently associated with minor offenses. These may involve failure to pay a court–ordered fine, failure to show for a required hearing, failure to respond to a subpoena, or violation of a municipal ordinance.
Law enforcement seldom uses resources to seek and locate an individual wanted on a bench warrant, but they can and do arrest such individuals if they come across them in circumstances like a traffic stop. Bench warrants never expire, so an encounter that results in arrest can be linked to events long past. While we have no exact number for outstanding bench warrants, Platkin stated in his policy letter that hundreds of thousands of municipal bench warrants remain outstanding.
The selling points of the policy promulgated by Platkin are that many bench warrant arrests result in almost immediate release on bail with a new court date. The arrests themselves are therefore unnecessary, time consuming for police, and disruptive of people’s lives. Many such bench warrant arrests fall disproportionately on individuals of color. Lower–income individuals are more often caught up in bench warrant arrests due to the lack of funds to pay fines. Operationally, the infractions that result in bail of $500 or less are largely minor and end up absorbing police time and effort best directed elsewhere.
Given that, what could possibly be the problem with the new policy? Actually, several points come to mind. This new directive from the acting attorney general comes on the heels of several other policy changes on how police should respond to violations of the law. Not all of these have resulted in positive experiences for the public.
One is reminded of attorney general guidelines on how police are to deal with juvenile offenders, even in the face of lawless behavior. Crowds of young people, aware that police have serious constraints placed on them, can and do engage in elicit behaviors ranging from property destruction to underage drinking and marijuana use, to a general rowdiness that upsets the public peace we all have a right to enjoy.
We are told by the attorney general that policies on acceptable use of cannabis by off-duty police officers and other first responders are a correct interpretation of a law whose consequences were not well thought through. Legalization of cannabis use ends up placing the public safety in potential jeopardy because no one foresaw the consequences, even though other states that went ahead of New Jersey expressly enacted constraints on allowed use by law enforcement.
Why must New Jersey pull the trigger on such actions and then play catch up with its own ill-conceived policies? Would it make more sense to slow the rush to “reform” that seems to hold Trenton in its grip and engage in more sensible and thoughtful interaction between legislative and executive branches in order to produce well thought out responses built on a platform of consensus?
Consider state actions responding to environmental change. Would we not benefit from more considered exchange and consensus building on how the state is responding to climate issues? The host of new regulations proposed under New Jersey Protecting Against Climate Threats (NJPACT) lacks balance with little overt consideration of social and economic impacts and few proposals for addressing the economic costs and consequences of rule changes.
Moved almost entirely by way of executive orders and actions, NJPACT is another example of policy that avoids the elected representatives in the Legislature and the admittedly cumbersome process of hearings, public input and compromise that often characterizes legislative involvement. It does so at a cost.
The policy changes involving bench warrant arrests may do more good than harm, but the recent history of executive–led “reform” does not provide confidence. Are we potentially providing yet another example of absolution for infractions of law simply because we have so mismanaged a process that we find ourselves with little choice? How did we get to a point of hundreds of thousands of unenforced bench warrants? What is the message we send when we just lower the consequences?
Are we building a sense that respect for law can be sidestepped because we have allowed the problem to get out of hand? Does that message not actually encourage the behavior we are trying to correct?
So now the person who violates municipal ordinances and skips out on the court date, or the person who fails to pay fines after violating court orders, may go long periods without consequence. When the bench warrant issued for this behavior finally catches up to the individual at a traffic stop in some distant future, the result is the issuance of a new court date. Does that encourage respect for the law in the initial instance? Does it rather remove any deterrent that may have led someone to respond in the first instance?
“Reform” conducted by executive fiat is never the best response to social problems. It is why we have a cumbersome structure of government that should force broader input and consideration of policies, directives, and laws. Executive action may be a faster but not necessarily wiser path.
We need to proceed with caution as we alter the procedures that are part of the foundation of a respect for law and order.
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From the Bible: “Whoever resists authority has opposed the ordinance of God” — Romans 13:2
