New Jersey Used An Algorithm To Revamp Its Bail System: Is It Working, And At What Cost?
One of the hallmarks of our criminal justice system is that you are innocent until proven guilty. But when you can’t afford cash bail, this sacred principle feels like it doesn’t apply to you as you languish in jail awaiting trial.
In New Jersey, a 2013 study by the Drug Policy Alliance and Luminosity found that about 40 percent of the people in jail, many of whom are Black and Latinos, were there simply because they couldn’t afford modest bails.
To create a fairer system, New Jersey embraced technology to shake up its bail system by (almost completely) eliminating cash bail for most nonviolent defendants in January 2017 — though not without some challenges and vociferous critics.
The key to New Jersey’s bail reform is the public safety assessment tool, a risk assessment algorithm. The algorithm evaluates a defendant’s three risk scores — failure to appear in court, engaging in new crimes if released, and committing a violent crime if released — and charges, and proposes a release recommendation, if any. Judges then consider the recommendation plus any information provided by the parties to make a pretrial release decision.
Fast forward one year: The New Jersey judiciary is touting the success of its bail reform. About 80 percent of defendants who were charged by a warrant were released pretrial and the jail population dropped by 20 percent, as stated in the 2017 Criminal Justice Reform Report (NJ Report).
But those benefits come with a hefty price tag that the judiciary can no longer afford. By the end of 2020, the pretrial services program (funded by court filing fees) will run out of money stated Judge Glenn Grant, acting administrative director of New Jersey courts.
The pretrial services program, according to the NJ Report, has already received about $67 million and needs another $35 million for electronic monitoring, drug testing, and treatment services for defendants released on pretrial monitoring. What’s more, the judiciary needs over $2 million to develop an information technology system to handle the work of the program. On top of that, the judiciary needs additional employees to conduct risk assessments and monitor defendants. All this at a time when its revenue from court fees shrank by $3 million in fiscal year 2017 and are down 2.4 percent in fiscal year 2018 — it’s unclear if eliminating cash bail was a contributing factor.
Funding is not the only challenge facing New Jersey’s bail overhaul. Bail reform is a direct threat to the bail bond industry’s business so it comes as no surprise some bail underwriters and agents are staunch critics of bail reform. For example, the American Bail Coalition supports legislation by a New Jersey assemblyman seeking to abolish New Jersey’s no-cash bail system. And a former U.S. solicitor general filed a lawsuit funded by the bail bonds industry challenging the constitutionality of New Jersey’s bail reform on the basis that posting bail is less restrictive than house arrest and electronic monitoring; the pending case will have broad implications as more states flirt with bail reform.
Other critics argue that risk-assessment algorithms are racially and gender biased. (We previously discussed the issue here.)
Moreover, some law enforcement officials have emerged as outspoken opponents. Chief of Police Joseph Walker of Ringwood, NJ expressed frustration over bail reform in an interview with Ms. Megan Thompson of PBS’s NewsHour Weekend as part of its Chasing the Dream series. Walker criticized bail reform for its lack of concern for the victims and stated police officers are frustrated with seeing people they arrest back on the streets quickly. Walker also pointed out that some people released under bail reform committed serious crimes. After complaints from Walker and other law enforcement officials, New Jersey expanded the list of crimes for automatic detention.
To date, it’s unclear how many people skipped court or reoffended while on release under bail reform. But Passaic County Court Judge Ernest Caposela, one of the architects of bail reform, stated during an interview with Thompson that the threat to public safety under the pretrial release program is no more than under the monetary bail system.
“We did not institute criminal justice reform to put bail bondsmen out of business and to clear out the jails,” said Judge Caposela. “It was to respect the presumption of innocence, to design [] a system that was fair and honest.”
New Jersey’s bail overhaul transformed an antiquated cash system and after one year, advocates are heralding its success. But success is not cheap and the new system comes with its own challenges and critics that New Jersey will have to address if it wants a bail system that doesn’t discriminate against poor people.
