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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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Too many people across the United States spend too long in jail before they’ve ever been convicted of a crime, simply because they are too poor to post cash bail. At the same time, some dangerous offenders are able to buy their way out of jail by posting cash bail, regardless of the risk they pose to the community.
For far too long, the criminal justice system in New Jersey — and many other states — suffered from these dual fundamental failures. Recently, however, New Jersey instituted sweeping reforms to its bail system. The lesson we offer from the front lines of the New Jersey bail reform effort is this: It is not easy, but it works.
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 NJ.com/The Star-Ledger, at this link
In his State of the State address, Gov. J.B. Pritzker said he wants to eliminate cash bail in Illinois and called on lawmakers to act on the idea in the spring session. An admirable goal, one that has been pursued in a handful of states such as New Jersey, California and New York.
But now comes the hard part — navigating the special interests to arrive at an effective new law that, when implemented, results in successful criminal justice reform.
Our message to Gov. Pritzker and the Illinois legislature: New Jersey reform works and you should copy it, plain and simple. There is no need to reinvent the wheel. New York tried an approach different from New Jersey and, so far, it has been a disaster.
“If the money doesn’t come out fast enough, the politicians will be criticized.”
- Chris Porrino, formerly 60th Attorney General of New Jersey
The U.S. government has been rapidly pushing $349 billion of funding out the door in SBA Section 7(a) Payroll Protection Program (PPP) Loans, while “encouraging” the public “to apply as quickly as you can because there is a funding cap.” The ‘get it while it lasts’ nature of the program combined with the vague requirements regarding business qualifications for a PPP loan, will create very fertile grounds for future fraud claims.
Understanding how this scenario will play out informs how loan applicants should approach PPP loans. Several of us are former senior law enforcement officials who led investigations and prosecutions of the fraud cases that arose from relief funding in the wake of Hurricane Sandy (2012) and 9/11, and we see commonalities and differences between those past relief efforts and today’s PPP loans.
Last Thursday, we assembled approximately 600 people for a WebEx (viewable here) to apply our enforcement perspectives to these loans in the startup/growth company context.
To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.
© Lowenstein Sandler LLP, 2020
