Editors note: This article by Blair R. Zwillman originally appeared in the June 2019 issue of New Jersey Lawyer. Read it here. (login required)
On Jan. 1, 2017, a significant change was made to New Jersey’s pretrial release system (formerly categorized as bail system). The statutory bail provisions and court rules were modified to minimize, if not eliminate, cash bail and to consider and measure: 1) the risk that an accused will not appear at all required court appearances, 2) the risk that an accused will commit another crime while on pretrial release, and 3) the impact of release on the safety of individuals, or the public at large prior to permitting a defendant pretrial release.1 There is little doubt that the changes invoked were primarily motivated by the inability of persons charged with low-level crimes to raise and post cash bail, even in situations where the amount set was $2,500 or less.2 Other areas of interest related to these changes are discussed in other articles in this publication (e.g., risk assessment and release/detention). This article will compare the present New Jersey practice to that of other states.
The New Jersey model had its genesis in 2014, when the New Jersey Constitution was amended to allow courts to
detain defendants to assure their court appearances in the future and to protect the safety of the public.3 While voters approved the constitutional amendment, ironically it authorized preventive detention. In furtherance of criminal justice reform, pilot programs utilizing risk assessment analysis had been instituted. As a measure to address needless delays, new speedy trial rules were enacted to require that those detained would have to be indicted and tried within specific periods of time.4 The American Civil Liberties Union, public defender and attorney general all supported the new rules.
This article will provide examples of the manner in which some other states and the District of Columbia are addressing the bail issue. Federal law will not be discussed.
Impact of Bail Reform in New Jersey
The new bail/release statute and rules have had a profound statistical impact on county jail populations. Analyses available on the New Jersey Judiciary website reveal that the “nonsentenced pretrial jail population” plummeted from 7,173 on Jan. 1, 2017, to 4,967 on Jan. 31 of this year, a decrease of 30.2 percent.5 As an example, in January of this year, the state filed 1,725 detention motions and 637 (37 percent) were granted, 717 (42 percent) were denied, and 371 (21 percent) were withdrawn or dismissed.6
Although a cause-effect relationship cannot be demonstrated, State Police crime statistics from Jan. to Sept. 2018, as compared with the same period in 2016, dramatically demonstrated a 32 percent reduction in homicides, 13 percent in rape, 37 percent in robbery, 18 percent in assault, and 30 percent in burglary.7
Anecdotally, there has been some indication by defense attorneys that the prior failure to appear (FTA) component of the algorithm is prejudicial to racial minorities and the poor, especially the weight apparently being given to failures to appear in municipal court matters.
Bail Reform in Other States
The nonprofit Pretrial Justice Institute (PJI), which evaluates pretrial justice priorities, released its first comparative
state data analysis in Oct. 2017. As reported, in terms of grading, New Jersey received the only ‘A’ and the country on a whole received a ‘D.’8 As of that date, New Jersey was the only state to have “almost completely eliminated money bail.” (The District of Columbia had done this previously.) The state had a comparatively low pretrial detention
rate and uses a validated pretrial assessment tool. In Oct. 2017, most other states had a high pretrial detention rate.
However, as of that date legislative action had commenced to modify bail practices in California, Alaska and Connecticut.
In its publication entitled “Where Pretrial Improvements are Happening,” released Jan. 17 of this year, the PJI catalogued developments in all 50 states.9 As of Dec. 2018, 10 states were changing practices, 12 had judicially led improvements, pretrial litigation was underway in 14, and pretrial legislation was enacted in 25. Change was ‘executive-led’ in five states and there was community and grassroots involvement in 17 states. The most progressive states include California, Colorado, Florida, Indiana, Maryland, Massachusetts and Virginia.
California is Trying
In Aug. 2018, California became the first state to completely eliminate cash bail by enacting the California Money Bail Reform Act. The act is scheduled to go into effect in Oct. of this year. The state’s Judicial Council, the body that sets the rules for California courts, was tasked with establishing a new system involving pretrial risk assessment analysis. Some critics have asserted the government’s risk assessment analysis will lead to unnecessary detention, and that its algorithms are racist and judicial detention is unbridled.10 However, the law is patterned on New Jersey’s standard that pretrial detention can only be ordered “if there is a likelihood that no condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the person in court.”
New York Attempts to Repair Broken System
In New York, the Robert F. Kennedy Human Rights Foundation, in Oct. 2018, conducted a mass bailout action. This was a collaborative effort undertaken by grassroots groups and persons previously incarcerated, to obtain the release of women and young people in New York City who were jailed at Rikers Island solely for their inability to post bail.11 At the conclusion of the event, 105 people were released, including 64 women and 41 high school-aged boys. Most had been charged with felonies. Only two of 90 people who had scheduled court dates did not appear in court. Those released were put in touch with services and given a prepaid cellphone and two-month MetroCard to assist them in contacting their attorneys and attending court.
According to the Vera Institute of Justice, a study found that New York City judges frequently release people on their own recognizance, but other counties are more punitive. Thus, 89 percent of the jail population in some New York counties consists of people charged with misdemeanors, while the number in New York City is 10 percent. A bill to eliminate cash bail in New York was introduced in the state Senate in Jan. 2017. The legislation, NY Senate Bill 3579-A, 2017–2018 Regular Sessions, would require judges to impose the “least restrictive non-monetary condition”
that would assure a defendant’s court appearance. A court would be required to evaluate many factors, including a defendant’s prior record, attendance at court appearances, character and employment history. Critics of the proposed bill, which is pending, argue it is slanted against minorities.12
Kentucky is Making an Effort
In Kentucky, there is a movement underway to overhaul the state’s cash bail system. As identified by many other
states, such a system needlessly authorizes detention of those charged with low-level crimes and creates an overpopulation in local jails.13 Kentucky is experiencing a skyrocketing incarceration rate. It has the ninth largest incarceration rate in the country. Its female incarceration rate ranks second in the country. It also ranks second in the rate of children who have experienced parental incarceration.14
District of Columbia Has Eliminated Cash Bail
The District of Columbia moved away from cash bail in 1992. DC also relies upon a risk assessment tool. In 2017, 94 percent of persons arrested were released without cash bail, 88 percent of those attended every scheduled court appearance, 85 percent were never arrested for a criminal offense of any kind, and less than two percent were rearrested for a crime of violence, according to a senior judge of the D.C. Superior Court.15
Texas is Responding to Federal Lawsuits
In 2017, Texas failed to pass a bail reform law. Several lawsuits have been filed against Texas counties, and federal judges have determined bail practices in these counties to be unconstitutional. It has been reported that 75 percent of
individuals awaiting disposition of their cases in Texas are detained ahead of disposition. In one case that is winding down, a federal judge has announced support for a proposal by Harris County that would mean automatic qualification for no-cash bonds to 85 percent of those charged with misdemeanors.16 The only exceptions would apply to people who are arrested for family violence, bond violations and repeated drunk driving offenses. The latter defendants would be entitled to a bail hearing within 48 hours, at which they would be eligible for personal recognizance bonds. As in New Jersey and other states, bills before the Texas Legislature have as their centerpiece some construct of a pretrial risk assessment program. Legislators are beginning to support the proposed agreement in Harris County, mentioned above. As in many states, the bail bond industry opposes modification of the law, arguing that risk assessment programs are ‘junk science.’ However, the proposed legislation has the support of the chief justice of the Texas Supreme Court and the Texas Judiciary.17
There is no question that New Jersey has been in the forefront of bail reform. A collateral benefit that typically inures
to defense counsel following bail reform includes the provision of extensive discovery by the prosecution prior to
detention hearings. In the end, bail reform will hopefully fairly deal with those who are financially incapable of raising even low bail and the cost of housing pretrial detainees will be greatly reduced. Other states continue to consider and enact reformulations of their antiquated pretrial release laws and rules.
1. N.J.S.A. 2A:162-14, et seq.; R. 3:4-1
et seq., R. 3:26-1 et seq.
2. See Chief Justice: Bail Reform Puts
NJ at the Forefront of
Fairness/Opinion, Star Ledger, Jan.
3. Statement attached to Senate Concurrent
Resolution No. 128, State of
New Jersey 216th Legislature.
4. New Jersey Court Rules 3:25-1 to 3.
reform.html – “Chart C.”
reform.html – “Chart B – Supplemental
7. Has bail reform been a success?
Check the crime numbers then
decide, Editorial, Star-Ledger, Editorial
Board, Dec. 4, 2018.
10. California Ended Cash Bail—But
May Have Replaced It With Something
Even Worse, The Nation, Sept.
12. Choi, Lessons from California and
New Jersey Bail Reform Legislation,
New York Law Journal, Dec. 7, 2018.
14. The Emerging Consensus Behind
Reforming Kentucky’s Bail System,
Kentucky Today, Feb. 7, 2019.
15. What Changed After D.C. Ended
Cash Bail, www.npr.org/2018/09
16 State Sen. Whitmire takes another
shot at reforming bail in Texas,
Houston Chronicle, Feb. 4, 2019.
BLAIR R. ZWILLMAN is the owner of a solo practice in Morristown. He is a certified criminal trial attorney and a former president of the Association of Criminal Defense Lawyers of New Jersey.