N.J. rethinks bail - who gets out, who stays jailed

As of Sunday, suspects arrested in New Jersey will no longer face the prospect of being stuck in jail solely because they can't make bail.

But some accused offenders will no longer have any chance of being released before trial, under sweeping changes now in place throughout the state.

The bail-reform package that Gov. Christie and state lawmakers partnered to pass in 2014 - a portion of which voters approved with a ballot question that year - is finally in effect, though concerns about its costs haven't been resolved.

Instead of getting cash bail set by judges, defendants now will be subject to an analytic tool assessing their criminal histories that will help determine whether they should be released or jailed pretrial. Prosecutors will have to argue if they want a defendant to be held beyond an initial commitment.

Previously, judges in New Jersey could not order defendants held without bail.

Those defendants who are jailed will be released if new deadlines aren't met: Prosecutors have 90 days to indict a defendant. A trial must then be scheduled in 180 days.

In a 2013 study of the New Jersey jail population in October 2012, inmates awaiting trial post-indictment had been held an average of 314 days, according to the state Attorney General's Office.

Officials say the speedy-trial deadlines could require more work by the judiciary. Lawmakers recently sent Christie a bill that would add 20 Superior Court judgeships, an expansion supporters say is needed to carry out the law's requirements.

"What you're really talking about is, do the time constraints create additional demands on the system?" Glenn Grant, acting administrative director of the New Jersey courts, said in a recent interview.

"I would argue yes," he said, although "we need more empirical data."

Arguing that the law will cost them tens of millions of dollars, New Jersey counties are trying to stop the changes, although they didn't succeed in getting an injunction before Sunday.

In addition to hiring more staff, counties say, they have to pay staff for more hours and make capital improvements. The law requires that risk assessments be completed within 48 hours of a defendant's commitment to jail, meaning county facilities will have to be open on weekends, according to the New Jersey Association of Counties.

The counties also have to make space for staff from the Pre-Trial Services Unit - newly created to monitor defendants released before trial - according to the association, which has pegged the cost of the bail changes to county taxpayers at $45 million.

But the state Council on Local Mandates said in a decision last week that the association hadn't demonstrated that counties would face significant financial hardship, denying the association's request for an immediate halt to the changes.

In a report released in late November, the Attorney General's Office said it couldn't project costs or savings from the changes, because county prosecutors would have discretion to adapt certain practices.

Discretion is "part of the problem," said John Donnadio, the association's director. Counties "have very little control over financial matters regulating the county prosecutors," although prosecutors will face a 2 percent cap on increases in their budgets starting this year, Donnadio said.

The association plans to contest the state's motion to dismiss its complaint against the bail changes.

In Camden County, where judges, prosecutors, and public defenders have been regularly meeting to prepare for the changes, "we call it Monday-morning quarterbacking," said Deborah Katz, the county assignment judge. Judges and lawyers look at cases and a defendant's risk-assessment score, "talking about where the judge would line up" in different situations, Katz said.

"The sea change is we've gone from a bail-setting culture, where we would set bail for a crime," Katz said, "to a release-setting culture, based on your score, or the assessment whether you pose a risk."

Tapping into records databases to check a defendant's criminal history, the risk assessment, created by the Laura and John Arnold Foundation - a philanthropic organization involved in criminal justice and education initiatives - evaluates a defendant's risk of failing to appear, committing another offense, and committing a violent offense.

The assessment considers age at the time of the alleged offense, whether the offense was violent, past convictions and failures to appear in court, and other pending charges. It doesn't consider race, ethnicity, or geography, among other factors.

In Kentucky, which began using the foundation's assessment tool in 2013, the average arrest rate for defendants released pretrial declined from 10 percent to 8.5 percent during the first six months of using the assessment, while more defendants were released, according to the foundation.

Others that use risk assessments in deciding whether to hold or release defendants pretrial include Arizona, Delaware, and the District of Columbia, according to the New Jersey Attorney General's Office.

The New Jersey judiciary has tested the foundation's assessment tool on thousands of cases to ensure it's retrieving the right records for defendants, Grant said.

While the assessment will assign defendants a numerical score, "arguments are still going to be made by attorneys" as to whether a person should be held, Grant said. But prosecutors have to seek a defendant's pretrial detention.

Judges, meanwhile, "must follow the law," Katz said. "If the law states that pursuant to a risk assessment this is a low-risk offender, the judges are going to follow the law and put the offender out." Under the bail-reform law, only defendants charged with an indictable offense - such as murder, aggravated sexual assault, and using or threatening the use of a deadly weapon - or an offense involving domestic violence can be detained, according to the Attorney General's Office.

Judges have discretion as to what type of monitoring released defendants are subject to, including electronic monitoring, Katz said.

Officials expect county jail populations to decline as a result of fewer nonviolent defendants' being held. The 2013 jail study found 38 percent of inmates were being held because they couldn't afford bail, according to the Attorney General's Office.

Twelve percent of the jail population could have been released for $2,500 or less, the office said.

A monetary bail system "is just blatant discrimination against poor people," said New Jersey Public Defender Joseph Krakora.

While many defendants who would have been held on smaller sums of cash bail will no longer be detained pretrial, Krakora said, "our clients charged with homicide, aggravated sexual assault . . . are probably going to be roughly the same ones in jail" under the new law.

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