Bail Reform in New York: Lessons from New Jersey

Jennifer Isaacman

Since New Jersey’s Bail Reform and Speedy Trial Act took effect on January 1, 2017, New Jersey is now at the forefront of the bail reform movement. Under the Act, state judges must use an algorithm that accounts for flight risk and dangerousness before deciding if a defendant should be released before trial. The judge maintains discretion, however, to decide whether to consider other factors that go unaccounted for in the algorithm, and to attach conditions to a defendant’s pre-trial release to ensure his return to court. Judges in New Jersey are permitted to detain violent defendants without bail, but only after the court conducts a hearing that adheres to due process standards. Although a number of states like Colorado, Connecticut, and Rhode Island have instituted changes in their bail procedures through the use of similar pre-trial risk assessments, no state has gone to the same lengths as New Jersey to overhaul its bail system.

On January 3, 2018, Governor Andrew Cuomo announced plans in his State of the State address to institute a similar plan that would eliminate cash bail for New Yorkers facing misdemeanor and nonviolent felony charges. Under his plan, defendants facing such charges would either be released on their own recognizance or with non-monetary conditions designed to maximize the likelihood that they will return to court. Different from New Jersey, judges could still impose cash bail for defendants accused of violent felonies, but only after conducting an individualized review of the defendant’s case, personal circumstances, and ability to pay. The bill that would introduce these and other criminal justice changes into law is currently being debated in the Senate Codes Committee.

The recent push for bail reform in New York comes at a time when political momentum has been building towards meaningful change. Every day, around 70 percent of people incarcerated in New York State jails are awaiting trial, calling into question the fundamental principle of justice that a person is innocent until proven guilty. These pre-trial jail stays come at great expense to the individuals impacted as well as the taxpayers. In fiscal year 2017, New York City alone spent 2.6 billion dollars housing its population of pre-trial detainees. In addition, thanks in large part to an increase in media coverage of the social consequences of our bail system, public opinion has begun moving away from the practice. Specifically, the perception that the bail system has a disparate impact on the poor has been mainstreamed, most notably, with the 2014 New Yorker coverage of the case of Kalief Browder. The tragic case, in which a teenaged Browder was forced to languish on Riker’s Island for three years because his family couldn’t afford to pay his bail, only to commit suicide when the charges against him were dropped, gave a public face to a bail system that permits wealthy defendants to buy their freedom, while the poor are forced to await trial behind bars.

New York State lawmakers will almost certainly look to New Jersey’s example before deciding whether to pass its similarly ambitious reform package. Therefore, it is worth reviewing the positive and negative effects of the New Jersey legislation before assessing the likelihood that New York’s bill will receive broad support.

During the year or so since the Bail Reform and Speedy Trial Act took effect, the hoped-for results of New Jersey’s bail reforms are already being realized. The number of defendants awaiting trial behind bars in the state dropped 20 percent, and pre-trial county jail populations are down by more than a third. Between January 1st and May 31st of last year, just eight people were held on bail throughout New Jersey, with others being released on condition or detained without bail. At the same time that more defendants are awaiting trial in their communities, crime rates in New Jersey have continued to decline.

Despite those promising results, there have been murmurs of dissent among local actors who believe that they and the public have been wronged as a result of the bail changes. For one, although bail reform was touted as a cost-saving measure, county governments have expressed concern over the cost of the additional police and court personnel needed to implement the changes, and whether they can breakeven without raising property taxes. In addition, some police and prosecutors credit bail reform with allowing dangerous perpetrators to be released back into the community. In February of last year, Police in North Brunswick Township published a Facebook post with the hashtags “#BailReform” and “#TheNewNormal” about a burglary suspect who was charged and released, then arrested just days later on similar charges. In Ocean County, prosecutors fought the release of a defendant who was accused of soliciting sex from a 12-year-old girl all the way to the state’s Supreme Court. The switch has also given rise to several lawsuits, including one by New Jersey’s financially crippled bail bondsmen, who argue that defendants should at least be given the option of bail, rather than be made to endure pre-trial monitoring. A grieving mother filed a second suit against actors responsible for bail reform, claiming due process violations for the murder of her son by a felon who had been released without bail after being charged with a weapons violation. In response to these lawsuits, New Jersey’s attorney general last May introduced minor alterations to the state’s bail policy, so that those accused of serious gun crimes, repeat offenders, and sex offenders will be less likely to be granted pre-trial release.

Given its singular status, New Jersey is in a position where it can serve as a national model to other states seeking to reform their bail procedures, or a cautionary tale of bail reform gone too far. As an example for New York lawmakers, New Jersey’s approach to bail reform offers a mixed bag of benefits and drawbacks. Thus, in order to anticipate opposition to bail reform legislation, lawmakers who place a high value on fairness in the criminal justice system would be wise to learn from New Jersey’s example.

Jennifer Isaacman is a Quorum Editor and a J.D. candidate, Class of 2018, at N.Y.U. School of Law.