Bail Reform: New York’s mistakes must not jeopardize New Jersey’s success

After years of steady declines in violent and other criminal activity in New Jersey, the COVID-19 pandemic has coincided with increases in crime both here in New Jersey and around the country. While New Jersey still has much lower rates of violent crime than the nation (and far lower than that in New York City), we are all rightfully concerned. Unfortunately, however, certain political leaders in both parties have taken aim at something called “bail reform” as the purported cause of this trend.

There is no statistical correlation between bail reform, which became effective in 2017, and the more recent increase in criminal activity. In light of this unmistakable reality, I am writing to urge that our political leaders exercise restraint before seeking to roll back a reform measure that was enacted with the support of leaders in both parties in all three branches of government, and has proven to be a national model in targeting the right people for detention and releasing on conditions those who pose no true threat to society.

The New Jersey Criminal Justice Reform Act of 2017, more commonly referred to as bail reform, enacted a historical first for New Jersey. Pursuant to the Act, judges are empowered to order the detention of any individual they deem truly dangerous or at risk of flight. Previously, the most dangerous defendant always had the ability to post bail and walk out of jail if he or she had access to financial resources. Just as bad, the old cash bail system kept non-dangerous defendants in jail because they could not post small amounts of money for their release. That system punished people because they were poor and perpetuated racial disparities.

When the Act was passed in New Jersey, a very difficult to find balance was struck — between avoiding incarceration for minor offenses on the one hand, while encouraging detention for the most dangerous on the other. That balance was reached only after careful bipartisan study and significant negotiation, and the result is arguably the most important criminal justice reform in New Jersey’s history.

By every measure, bail reform has served New Jersey extraordinarily well. It has brought greater fairness and equity to our criminal justice system. It has helped reduce violent crime because dangerous offenders, like gun-wielding car-jackers, can now be held without bail, compared to pre-bail reform, when they would be released if they could post bail. It has also saved many millions of dollars in prison costs by reducing the number of inmates. Officials estimate that in Union County alone, programs instituted after bail reform will save $103 million between 2021 and 2026.

There are at least three primary reasons why it would be a mistake to amend New Jersey’s criminal justice reform law now.

First, the Act has been astoundingly effective. New Jersey experienced steady declines in violent crime in the years after bail reform became effective. Indeed, in the first two years after New Jersey reformed its bail system, violent crime decreased by over 30%. The recent issue involving car thefts is just that — recent — coming years after the reform became effective, and in the midst of a nationwide spike in violent crime coinciding with the COVID-19 pandemic. Even so, New Jersey today has the fifth lowest violent crime rate in the nation.

Moreover, in the first year alone, pretrial incarceration rates fell by over 20%. As a result, thousands of low-risk, nonviolent offenders no longer languish behind bars waiting for trials because they cannot afford bail. They are able to maintain their jobs and family relationships and pursue educational opportunities. In the process, there have been virtually no increases in rates of recidivism or failure to appear in court, and New Jersey taxpayers no longer spend hundreds of millions of dollars on needless, counterproductive incarceration.

Importantly, New Jersey has avoided the mistakes made by New York in its failed bail reform scheme. New York’s bail reform system does not conduct an individualized risk assessment based on the dangerousness of a pre-trial detainee, which has contributed to an alarming spike in violent crime in that state.

In the first two years after New York implemented its reforms, index crimes in New York City — which include murder, rape, robbery, and felony assault — increased by 36.6%. In New York, unlike in New Jersey, dangerousness to the community inexplicably may not be considered in deciding whether to detain a defendant. This was a major change that New Jersey instituted. Here, under our bail reform, judges in New Jersey can and do assess dangerousness to the community.

In prior writings on this subject, I expressed the grave concern that New York’s failures would be used by special interest groups, such as the bail bonds industry, as a false basis to thwart and perhaps prevent model bail reform acts in other states. Since the bail bonds industry was essentially put out of business in New Jersey as a result of the elimination of cash bail, the industry has continued to aggressively lobby against model bail reform, using New York’s failed experience as a stalking horse. We must not allow New York’s failures -- all of which resulted from flawed reforms that we specifically and repeatedly warned against -- to derail our success in New Jersey.

Second, we should not forget that New Jersey’s criminal justice reform was the product of careful, objective study and a constructive, bipartisan process many years in the making. The reforms were championed by Republican Gov. Chris Christie, a Democratic legislature, and the state judiciary, and supported by prosecutors, police chiefs, defense attorneys, community leaders, and many other stakeholders, including the ACLU.

Even so, the Act was the object of vehement and well-funded opposition from the bail bonds industry, and only passed after Governor Christie called the state Senate and Assembly back from summer recess for a special legislative session devoted solely to bail reform. Significant changes to the Act will disturb the elusive balance that was struck in 2014, and once that balance is lost, the entire reform effort is at risk.

Third, as was acknowledged from the outset, the implementation of criminal justice reform is a work in progress. Adjustments have been made — and continue to be made — without requiring legislative intervention. Both the Attorney General’s Office and the state judiciary have adopted policies with the goal of increasing public safety without sacrificing the core tenets of criminal justice reform. Prosecutors and judges can be trusted in making individualized risk assessments that will keep violent recidivists off the streets, as we have seen since 2017.

Of all the state bail systems in the nation, only New Jersey — after it passed the Criminal Justice Reform Act — received the grade of “A” from the nonprofit Pretrial Justice Institute. California adopted legislation similar to ours. New York went in a different direction, and the results have been disastrous. New Jersey did things the right way, and, as a result, we have seen extraordinary success over the last six years. Let’s not blow it.

Reprinted with permission from the February 5, 2023, issue of NJ.com. © 2023 Advance Local Media LLC. All Rights Reserved.