TRENTON — Since the start of the new year, thousands of New Jerseyans charged with crimes have passed through courthouse metal detectors and into the new reality prosecutors, judges and defense attorneys had been bracing for since 2014, when the Garden State started to move away from a cash bail system.
The stakes set by the massive overhaul are high — for defendants, victims of crime and for advocates of criminal justice reform.
So how is it working out?
In separate interviews with NJ Advance Media, the state’s top prosecutor, its lead public defender and the administrator of the state court system hailed the first six weeks as a success. All three conceded some turbulence along the way but said the courts would adjust as challenges arise.
“For New Jersey’s criminal justice system, this is historic, earth-shaking reform,” said Christopher Porrino, the state’s attorney general.
“Growing pains were expected” — and planned for, he added.
Gov. Chris Christie, legislative leaders and civil liberties advocates, who have publicly clashed on marijuana legalization and other issues, have also found common ground endorsing the overhaul.
But there are rumblings of dissent among local police and prosecutors, some of whom have taken to social media to publicly blame bail reform for the release of criminal defendants they wanted to keep behind bars.
County governments, too, are complaining about the costs of implementing the new system, accusing the state of imposing an unfunded mandate and giving them few options besides raising property taxes to pay for it.
Supporters contend the changes will mean fewer low-level defendants languish in county jails just because they can’t post bail, which could lead to savings. But some estimates put the price tag for the overhaul in the hundreds of millions of dollars, and nobody can say for sure how much it will cost.
The state’s bail bondsmen, financially hobbled by the switch and claiming lawmakers duped the public about how the system would work, are waging a last-ditch effort to roll it back.
Privately, even bail reform’s staunchest supporters express worry that just one high-profile case in which a criminal released under the new system does the unthinkable could torpedo public opinion and flip New Jersey from a national model to a cautionary tale.
HOW DOES IT WORK?
New Jersey’s criminal justice reform largely replaced cash bail with a system in which judges use an algorithm and other tools to assess whether a defendant presents a flight risk or danger to the community when ruling whether to throw them in jail to await trial.
It’s similar to the federal system and the one in place in Washington, D.C., but New Jersey is the first to roll out such a system statewide. The ambitious switch means fewer poor people locked up for petty offenses and more violent offenders prevented from walking just because they had the means to post a hefty bail, supporters say.
“This system is so much more intellectually honest,” said Joseph Krakora, the head of New Jersey’s Public Defender Office, which represents those who can’t afford their own attorneys. “There’s nothing to preclude you from being a dangerous, violent criminal and being wealthy.”
In its first few weeks, however, opponents of the overhaul have drawn attention to cases where defendants were arrested on mid-level offenses, only to be released, re-arrested, and released again.
Bail reform takes heat from cops
Police in North Brunswick issued a public notice about a burglary suspect who — after being found hiding from police in a snow bank, suffering from frostbite — was charged and released, only to be picked up on similar charges in short order.
In a Facebook post accompanied by the hashtags #BailReform and #TheNewNormal, police claimed the man expressed surprise at how quickly he’d been released.
Then there was the case of Christopher Wilson, a convicted sex offender who was accused of soliciting sex from a 12-year-old. Prosecutors in Ocean County sought unsuccessfully to keep Wilson locked up, but a judge ordered him to stay away from the girl and wear a GPS monitoring bracelet.
Little Egg Harbor police, disturbed by the situation, made a show of going door to door to warn neighbors of Wilson’s presence.
Cops go door to door to warn of sex offender
It’s hard to say whether such a case would have played out any differently under the old system, however. State authorities last year raised the alarm about another accused sex offender, Essex County resident Ethan Chandler, who authorities believed was a serial abuser of young boys.
After a State Police sting operation, Porrino called a press conference to ask the public’s help identifying potential victims. As the attorney general spoke to reporters, Chandler was sitting at home. He had posted bail. Twice.
According to data from the state judiciary, nearly 12 percent of the more than 26,000 people who posted bail last year under the old system were charged with a new offense while awaiting trial.
“I don’t remember police departments posting on their Facebook page when they made bail,” Krakora, the public defender, told NJ Advance Media. “Is that somehow different?”
Porrino, responding to the criticisms, said he respects “law enforcement, police officers in particular, who have their boots on the ground. They’re the ones out there making the cases in many circumstances.”
But, he added, “There are going to be cases where the prosecutor is not satisfied with the outcome on bail. That part is not new. It’s the nature of the beast.”
BETTER THAN BAIL?
There were more than 3,600 cases in front of New Jersey judges between Jan. 1 and Feb. 14, according to data from the state judiciary. Prosecutors moved in 945 of those cases to have defendants locked up until trial, and judges granted just under 54 percent of those requests.
The rest of the defendants entered various stages of the state’s new pre-trial release system, in which civilian court staff monitor those who weren’t released on their own recognizance, equipping them with electronic monitoring devices or at least checking in with them regularly between court appearances.
Chris Blaylock, a bail bondsman who runs a website critical of the new system, told NJ Advance Media the state was overstating how much monitoring defendants released under the new system received.
During the latest episode of Christie’s monthly “Ask the Governor” radio show, Blaylock, via a message to the program’s host, said defendants were being released on “nothing more than a promise.”
The governor bristled at the suggestion.
“That’s ridiculous,” Christie said. “They’re not being released on nothing more than a promise. They’re given bracelets, where if they’re not where they’re supposed to be, and they break the bracelet, they get arrested.”
But while most defendants are monitored by pre-trial release staff, just 10 percent were subjected to electronic monitoring, according to state data.
Christie stands up for bail reform measures in NJ
A spokesman for Christie did not respond to message seeking clarification on the governor’s comments.
Bail reform critics have also been drawing attention to one of the more esoteric aspects of the new system: the Public Safety Assessment, or PSA, an algorithm-based tool that gives a defendant two scores on a scale of six gauging their danger to the community and the likelihood they’ll skip town instead of showing up in court.
Last week, a training document of unknown origin focused on the PSA was circulated among law enforcement and members of the media and posted on the local news website shorenewsnetwork.com.
A page toward the end claimed “Linden Terrorist” Ahmad Khan Rahimi – the man accused of planting improvised explosives across New York and New Jersey last year – received a low score on the PSA scale while an accused shoplifter received the highest possible score.
But the source of the document was unclear, as was the method by which the scores were calculated. Rahimi was arrested before the PSA was implemented in New Jersey and the most serious charges against him were filed in federal court, which doesn’t use the PSA at all.
State officials wouldn’t comment on that case, but said it’s possible for a defendant accused of a major crime to receive a low score if they don’t have much of a criminal history. Yet multiple officials said the PSA isn’t a magic number that decides whether you get out of jail.
The algorithm, designed by the Laura and John Arnold Foundation, was built using a database of records from more than a million court cases and informs whether prosecutors should ask a judge to order a defendant held. It’s one of six factors the court uses in making a ruling.
Judge Glenn Grant, the director of the state Administrative Office of the Courts, said state statute requires judges also consider the nature of the allegations and weight of the evidence against a defendant, as well as whether they might intimidate witnesses or otherwise meddle with the state’s case against them.
“The reality is, this is still only a recommendation,” Grant said of the PSA. “We still entrust to our judges to make informed decisions about what should go on in our courtrooms.”
CHANGES COMING
The public officials interviewed for this story maintained that issues with the new system were more anecdote than data, but conceded problems were inevitable.
While none would discuss details, they said the state could see “tweaks” to the PSA, a return to bail in select cases and other changes to the court rules.
Questions about costs also persist. Last week, the state Council on Local Mandates threw out a complaint filed by the New Jersey Association of Counties claiming the system — which was put in place by legislation and an amendment to state’s constitution — was an illegal financial burden on local governments.
An attorney for a group of bail bondsmen said at a hearing before the ruling that the ballot question approved by voters in 2014 gave the false impression it was a tough-on-crime initiative instead of an elimination of the cash bail system.
Several challenges against the new law are pending in state Superior Court, but none have halted the rollout.
The state’s appellate and supreme courts are also refereeing fights between prosecutors and defense attorneys over how to run the new detention hearings where judges decide whether a defendant should be jailed or released until trial.
Public defenders accuse prosecutors of withholding evidence they are required to give up through discovery. Prosecutors claim defense attorneys are trying to turn the preliminary hearings into “mini-trials.”
A state appellate court ruled earlier this month in favor of the public defenders, finding prosecutors must release police reports and other documents in cases where they are seeking detention. That matter is now before the Supreme Court.
Another dispute, over the cross-examination of witnesses at the pre-trial hearings, is in front of an appeals panel. Porrino, the attorney general, said the court battles were just part of the process.
“We knew that, given the way the statute was crafted, there would have to be issues decided by the courts and that’s happening now on a number of key items,” he said.
S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.
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