Many Americans spend too much time in jail simply because they aren't wealthy enough to afford bail while, at the same time, wealthy violent offenders are able to buy their way out. Not only is this an unfair and broken system, it destroys lives and costs taxpayers ridiculous billions. It's a lose-lose-lose situation made worse by an obvious fix too few other states want to pursue: Bail reform.
Four years ago, New Jersey became the first state to change what had been a patently unfair system. Since then, our new bail system has withstood various legal challenges. Most recently, earlier this week, the U.S. Circuit Court of Appeals found that key provisions of the new law are constitutional. The state's new approach works; other states must now follow New Jersey's example.
In 2014, New Jersey's political leaders reached across party and ideological lines to develop and pass bail reform legislation. Under the leadership of Republican Gov. Chris Christie and Democratic-appointed Chief Justice Stuart Rabner, a committee comprised of judges, prosecutors, public and private defense attorneys and advocacy groups created a policy blueprint for bail reform. The Democratic-controlled state Senate and Assembly overwhelmingly passed bail reform legislation, and Christie signed the bill into law. Shortly after, New Jersey voters overwhelmingly approved an amendment to the state constitution enabling bail reform.
Taken together, the legislation and constitutional amendment all but abolished cash bail. Instead, the legislation adopted an objective, data-driven algorithm to assess the risk of flight and the danger posed by each individual arrestee. Using that algorithm combined with traditional courtroom advocacy by prosecutors and defense lawyers, New Jersey judges now assess risk—not wealth—to determine whether an arrestee should be held without bail or released regardless of ability to post cash bail.
New Jersey's new system went into effect last year. We now have enough data to declare unequivocally that bail reform in New Jersey is a sweeping success. In 2017—the first year when judges could consider danger in denying cash bail to arrestees—New Jersey's violent crime index fell by 5.7 percent, including a 14.3 percent drop in murders and significant decreases in robbery, assault and burglary rates. At the same time—with indigent, low-risk arrestees eligible for release without having to post cash bail—New Jersey's pretrial county jail population fell by a staggering 20.3 percent. Given the conservative estimate that incarceration of pre-trial inmates costs $100 per person, per day, that reduction equates to over $53 million per year in taxpayer savings. And, statistics show, those low-risk defendants who spend less time in jail are less likely to commit future crimes. In other words, lose-lose-lose became win-win-win.
Now, the only question is what is the rest of the country waiting for?
New York should be next. In his 2018 State of the State address, Gov. Andrew Cuomo declared that "(t)he blunt ugly reality is that too often, if you can make bail you are set free and if you are too poor to make bail you are punished. We must reform our bail system so a person is only held if a judge finds either a significant flight risk or a real threat to public safety."
New York is not alone. At least 20 states have formed task forces to study bail reform, and many others are considering the issue. To all of those states, we say this: If you want to see what meaningful and successful bail reform looks like, not only in theory but also in practice, then look to New Jersey.
In 1964, Attorney General Robert Kennedy testified that the "problem, simply stated, is: the rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail. ... (B)ail has become a vehicle for systematic injustice."
We collectively have known this truth for over 50 years. Now, finally, New Jersey has shown that bail reform truly can work. The road map is available for everyone else to follow. We call on all other states to join us in creating the more fair and just bail system that Kennedy envisioned so many decades ago.
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