For decades across America, thousands of men and women have been jailed merely because they aren’t wealthy enough to afford bail. At the same time, this broken system has allowed violent and dangerous criminals to buy their way out of prison. It’s an unfair program that destroys lives, crowds jails, endangers innocent victims and costs taxpayers billions of dollars. That’s why some states are moving forward on a bipartisan basis to reform America’s Dickensian bail system.

New Jersey’s bail reform program was implemented in 2017 after years of careful study and bipartisan negotiation. Already enormously successful, these reforms were championed by Republican Gov. Chris Christie, a Democratic legislature and the state judiciary with support from prosecutors, defense attorneys, and the ACLU. New Jersey has since enjoyed precipitous drops in violent crime, major decreases (over 29%) in pre-trial incarceration, and virtually no change in recidivism or court appearance rates. And New Jersey taxpayers save hundreds of millions of dollars by not having low-risk, non-violent offenders needlessly incarcerated.

Seeing these results, California followed suit and adopted legislation that mirrors New Jersey. Many other states are expected to join what should become a national movement. These changes to America’s broken cash bail system can - and hopefully will - represent the most important criminal justice reform in the nation’s history.

Last year, we called on New York to change its broken system and were gratified to see New York start the new decade by launching its own bail reform. But early indications are that their reform effort is in jeopardy.

Two systemic flaws hamper New York’s reform effort. First, the new system in New York entirely eliminates judicial discretion and has erased mandatory bail evaluations for shockingly broad categories of criminal offenses -- second-degree manslaughter, stalking, assault as a hate crime, grand larceny, and aggravated assault on a child under 11 years old, to name a few.

Second, the New York system perpetuates a 1970’s-era rule that only permits prosecutors to argue and judges to consider whether an individual poses a risk of flight, but not whether that person presents a danger to the community. The reason for this restriction was grounded in the wholly legitimate concern that “danger” was going to be a proxy for racial bias to overwhelmingly impose bail on non-white defendants. But with an overhaul of this magnitude to the criminal justice system, New York had an opportunity to dig deeper and do better.

This flawed design is a head-scratcher because it runs counter to, and seemingly ignores, the already successful program that has been up and running just across the river in New Jersey for the last three years. New Jersey requires that risk of flight and potential danger to the community be measured. Prosecutors are empowered to seek and judges are empowered to grant pretrial detention based on the risk posed by each individual defendant. In lower-risk cases, the offender is released on non-monetary conditions, such as electronic monitoring, curfew and drug testing. In the highest-risk cases, prosecutors can seek and judges can grant pre-trial detention without bail.

Viewed through the lens of race and ethnicity, the New Jersey Judiciary’s 2019 annual “Report to the Governor and Legislature on the State of Bail Reform” reported that in 2018 approximately 3,000 fewer Black individuals, more than 1,500 fewer white individuals, and 1,300 fewer Hispanic individuals were incarcerated under bail reform. The New Jersey system determines release based on risk, not wealth, as it should.

Criminal justice reforms are vital, but we cannot lose sight of the first and most important function of the criminal justice system: To protect our communities. In some widely reported cases over the last few weeks in New York, dangerous offenders have been automatically released and, predictably, are re-offending.

In New Jersey, prosecutors and judges can assess the danger posed by each individual offender and, if necessary, hold that person without bail pending trial. While no bail system will ever be perfect, every system will benefit from experience and adaptation. We learned from our own experience and made adjustments and improvements along the way.

New York’s policymakers must now be flexible enough to make needed changes based on that state’s early experience. Willingness (or refusal) by all branches of government - executive, legislative and judicial - to adapt and evolve will make the difference between success (or failure) of the New York reform.

If New York is prepared to bring its system in line with New Jersey’s, the Empire State will likewise end up with an effective, workable system that both reduces unnecessary, unjust incarceration and protects the public. Failure is not an option, either for New York or for the larger bail reform movement nationwide that could be stifled if New York stumbles. We encourage its leadership to lean on the knowledge and experience from just across the river so that we may stand together as models of fair and effective bail reform, for the rest of the country to follow.

 First published by Star-Ledger, at this link

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