This New Jersey Reform Stops Judges From Jailing Some Defendants Just Because They Are Poor


In New Jersey, inmates spend an average of ten months behind bars just waiting to go to trial. Many have the option to post bail. But a study last year found that some 40 percent of those in pretrial detention would have been released had they been able to afford bail.

On Monday, the New Jersey legislature passed a package of bills to remove financial need from bail determinations, with the strong support of Gov. Chris Christie (R). The idea behind bail is that individuals who are convicted of a crime put up a bond of significant value to increase the likelihood that they will return for future court dates. But the system creates a class divide. Many are charged with bail under $2,500 — a sum that many wealthier individuals can pay, but is completely out of reach for low-income defendants.

Two companion bills aim to make the bail system less about how much money defendants have, and more about whether they pose a danger to the public. The first would give judges more power to hold dangerous defendants. If signed by Christie as expected, it would put before voters a constitutional amendment that gives judges the power to hold the most dangerous defendants in jail pending trial — no matter how much they can pay in bail. The second bill would take income out of the equation for less dangerous offenders. It would conduct risk assessments of defendants, and allow those not deemed dangerous to participate in a monitoring program until their trail, rather than to sit in jail.

The second bill would also ensure that defendants who are held in jail pending trial don’t wait there as long. Speedy trial provisions would require that defendants are either indicted within 90 days or released, and require that trials be held within 180 days of indictment. One of the bills would create an alternative program for monitoring defendants who can’t pay bail, without requiring them to be held in jail.

Both bills had near-unanimous support after Gov. Chris Christie pushed for the package, in uncommon alliance with the American Civil Liberties Union and the Drug Policy Alliance.

“Every day that someone fears for their life on our streets is a crisis,” Christie said last week. “Every day someone is deprived of their liberty in a jail for no reason is a crisis.”

Christie touted the bill’s bipartisanship, perhaps aiming to detract attention from his administration’s recent scandals. But whatever his motivations, Christie is the latest Republican to endorse a new generation of “Smart on Crime” reforms that seek to alleviate unduly harsh criminal policies, while redirecting resources toward actual publish safety risks.

A study by the Drug Policy Alliance last year found that overcrowding in the state’s jails was due almost entirely to pretrial detention. Jails, unlike prisons, hold both individuals who are waiting trial and those with shorter sentences — typically a year or less. The study found that 75 percent of those in New Jersey’s jails were awaiting trial, and that 40 percent of those were there simply because they could not afford bail.

Detaining an individual who has not yet been proven guilty is particularly inconsistent with the American notion of justice, so judges who opt to hold defendants pending trial are typically expected find that there is no other way to ensure the defendant will not flee or threaten public safety, such as frequent check-ins, house arrest, or other electronic monitoring. Last year’s DPA study called on the state to consider non-monetary options such as the monitoring program in the bill.

Roseanne Scotti, New Jersey State Director for the Drug Policy Alliance, said the package of bills “should be a model for the nation.”

But some civil rights and criminal defendants’ organizations opposed the bill because it eliminates the option for some defendants deemed violent to be released pending trial. The bail bond industry was also a primary opponent.

While some debate on the bills focused on the lost revenue from bail payments, estimates suggest counties could save $83 dollars a day for every inmate they are no longer housing prior to trial.