Sweeping changes in state law that have all but eliminated cash bail made New Jersey the only state to gain an A in a report released Wednesday by a national advocacy group that supports an end to the bail system.
Pennsylvania garnered a D — the same grade as the national average in the study by the Pretrial Justice Institute, which contends that the setting of cash bail discriminates against the poor and leads to a waste of taxpayer dollars on pretrial incarcerations.
The contrast between New Jersey and the nation “is startling,” said Cherise Fanno Burdeen, CEO of the Maryland-based nonprofit. Compared with New Jersey, which passed a law in 2014 that resulted in the bail changes, “almost everywhere else is struggling with that right now,” Burdeen said.
Since New Jersey’s new law took effect Jan. 1, replacing the bail system with an analytic tool assessing the criminal histories of defendants to recommend whether they should be released or detained, courts issued cash bail for just 33 people in the first nine months of the year.
The state’s pretrial jail population fell by 16 percent from the start of the year through Aug. 31, according to court statistics.
The group evaluated states based on three factors: the percentage of the prison population consisting of people who had not been convicted; the percentage of people living in jurisdictions that use assessments in pretrial decisions; and the percentage of people living in jurisdictions that have “functionally eliminated” secured money bail.
New Jersey and Pennsylvania fall in the same range on their pretrial detention rate, according to the report. In New Jersey, the rate per 10,000 residents is 14; in Pennsylvania, the rate is 15.9.
But the states differ dramatically on the other measures. In New Jersey, all counties use pretrial assessments. If a defendant is accused of certain crimes — like murder, sexual assault, or robbery — the assessment automatically recommends that the person not be released.
In Pennsylvania, only one county — Allegheny — uses evidence-based pretrial assessment. Philadelphia, which has been working to reduce its jail population, has been considering a risk-assessment tool for bail decisions. No county in the state has eliminated cash bail.
As part of the state’s move to eliminate cash bail, New Jersey voters approved a constitutional amendment in 2014 that allowed judges to order that defendants be jailed before trial. Previously, New Jersey judges could not deny a defendant’s pretrial release.
New Jersey law now allows bail to be set only to ensure the defendant’s future court appearance.
In its report, the Pretrial Justice Institute said that New Jersey’s “new system has, so far, been phenomenal,” noting the decline in the pretrial jail population.
“It’s a fairer system, and we’re seeing a lot more uniformity in the types of people being released,” said Jennifer Sellitti, director of training and communications for the New Jersey Office of the Public Defender.
Judge Glenn A. Grant, acting director of New Jersey’s Administrative Office of the Courts, said the “reform effort is working as the law intended.
“Poor defendants who pose a low or moderate risk of danger or flight are being released today, often under the supervision of pretrial services officers, while defendants who pose a substantial risk are being detained for the first time in the state’s history,” Grant said in a statement.
But the new approach has prompted some concerns. In May, the state Supreme Court changed the risk assessment process so that defendants charged with certain gun crimes and those with pending charges from two prior releases would trigger a “no release” recommendation.
The state Attorney General’s Office had asked the courts to make changes that flagged more defendants as high-risk. In an April letter, it said that prosecutors’ offices throughout the state had identified “a grave concern” with the public-safety assessment’s “undervaluing of the danger associated with criminal firearms cases.”
“Even though it’s been a little bit of a bumpy ride, we seem to be working our way through that,” Ocean County Prosecutor Joseph Coronato said. He said that “most, if not all, the prosecutors are committed to try to make it work.”
But “to think that bail reform, that you’re going to be able to say it’s a success or a failure, I think is way too soon,” he added.
Gov. Christie, a Republican and a former federal prosecutor, had backed the bail overhaul, working with the Democratic-led Legislature to pass the 2014 law and to get the constitutional amendment on the ballot that year. Proponents pushed the changes both as a way to keep low-risk defendants from being stuck in jails and to keep high-risk defendants locked up.
Of more than 8,000 motions to detain defendants filed by prosecutors between Jan. 1 and Aug. 31, judges granted 59 percent of the requests, according to court statistics.
“That represents 5,162 violent and recidivist offenders who are off the street, and it also undoubtedly represents a huge number of serious crimes that were prevented,” Attorney General Christopher Porrino said in a statement Tuesday.
Sellitti said there had been misplaced “fear-mongering” about the move away from cash bail. “It’s really easy to say this person committed a new crime on release and therefore the new law is not working,” she said. But “before this law was enacted, people would make cash bail and commit new crimes.”
The new system has drawn protest from the bail industry, which has supported court challenges to the new law. In September, a judge denied a request brought in part by a bail-bond provider for a preliminary injunction in one case filed in federal court opposing the law. A second case has not yet been heard.
While “it is inevitable that issues will arise that will need to be litigated or otherwise resolved as we move forward,” Porrino said, “we are absolutely committed to this important reform. We believe that it is making our communities safer.”