One Year In…What We Do (or Don’t) Know about New Jersey Bail Reform
by Jeff Clayton, Executive Director, American Bail Coalition
The New Jersey Courts issued a report yesterday touting the success of the implementation of bail reform in New Jersey, a cooperative project of the State Courts and Chris Christie administration in order to ignore the will of the voters, take out cost-free bail bonding companies in the process, and move to a costly money-free system that was contemplated to be the new Shangri-la of pretrial justice. It would be a monument to fairness on a hill that would shine like justice. Now, unfortunately, that very money-free system, according to the report, is simply going to run out of cash.
The original goals of bail reform were a combination of the following: (1) maintain or improve the rate of failing to appear in court; (2) improve community safety by reducing crimes while on bail through release on supervision and preventative detention; (3) make the system more fair by having less persons wait in jail pending trial; (4) reduce discrimination; and, (5) save money.
On the issue of jail population reductions, the spin-machine is already going over at the State Courts. The Courts take credit for two-full years of jail population reductions before bail reform was implemented: 2015 and 2016.
Let’s examine the actual numbers. The adjusted pretrial jail population fell in 2017 by 20.28% according to the Court’s numbers. Yet, in 2016, the year prior to the implementation of bail reform, the jail population fell 20.69%. There is no evidence to indicate that bail reform, implemented January 1, 2017, is the cause of this trend. In fact, the Court’s numbers show that the total number of complaint-warrant cases dropped by 8.57%, which alone would account for 42% of the drop in jail populations the Courts are trying to take credit for. The Drug Policy Alliance’s analysis wasn’t much better on this point: “The data shows that in just the first year of implementation the jail population has declined by 20 percent since January 2017, and 35 percent compared to this time in 2017.”
Are defendants who are released showing up for court under the new system? The report is silent on that point. No data on warrants. No data on failures to appear as required in court. No data on whether the summons cases show up. Of course, it does not sound like this should be a problem based on the money to improve the State Court computer system: “The successful implementation of CJR is due in no small part to the transformative shift from a paper-driven process to one that is fully electronic.” In fact, the State Courts spent filing fee revenue collected to do a system redesign that would allow for “[a]utomating data collection and data sharing.” Yet, no data.
What about improving community safety—has the new system reduced the numbers and severity of crimes committed on bail like it promised? Curiously, no ink was spilled in the report on this point either. We have to ask one simple question: where’s the beef? Yet, according to the Courts, in a classic tap-dance pivot of their message using nebulous and metric-free indicators that are more akin to a warm fuzzy, “This result is a more comprehensive, reasonable, and most importantly, a fairer system of pretrial release.”
Did the new system reduce discrimination? Any assessment would be pure speculation. It was easy in 2013 to issue a report calling the old system racist. Yet, today, there is no data on how preventative detention is being used, upon whom it is being used, and whether it is any of “comprehensive, reasonable or fair.” In addition, the Arnold Foundation’s risk assessment tool has not been audited by anyone but the Arnold Foundation, and there is absolutely no report or other information that would allow anyone to conclude the system is race and gender neutral much less “comprehensive, reasonable and fair.” The Arnold Foundation has been criticized as lacking transparency, and I would challenge anyone in New Jersey to try and conduct an analysis of whether the Arnold tool works and meets whatever requirements you may have in terms of being bias free—you cannot do it if you wanted to. This is all pursuant to a contract signed with the State that considers the Arnold Foundation’s interest in the algorithm as a trade secret. Also, it is unfair to conclude the that the Arnold Foundation is neutral—they have filed a brief in favor of the no-money bail system implemented by the State Courts and Chris Christie in a federal court challenge brought to New Jersey’s no-money bail system.
Regardless of how we may feel about it, New Jersey’s no-money bail system is going to run out of money. In fact, the total cost of implementing the system to state and local governments, according to the Chris Christie Administration, was succinctly estimated in four words: “We have no idea.” As noted in the report, financial bail conditions, intended to fill the gap in the middle of the system (below preventative detention but above some level of low-risk) were nearly wiped off the map—97 bail bonds were posted throughout the year. As the report notes:
Current projections indicate that the annual expenses for the Pretrial Services Program will exceed the annual fee-increase revenues beginning in calendar year 2018. This substantial annual structural deficit will not be fully felt until 2019 or 2020 because of the revenues that accumulated prior to the January 2017 program implementation date. However, the projected annual deficits will result in the Pretrial Services Program component of the 21st Century Justice Improvement Fund being in a negative balance as of late fiscal year 2020-early fiscal year 2021, with that negative balance increasing substantially each year thereafter.
Not to mention the unknown, unfunded burden on local governments, which has been estimated to be around another $50 million annually, to fund the system and fill-in where the incentives of bail were lost and supposed to be replaced by costly government programs.
Of course, this was a classic justice re-investment initiative. From the savings, we were supposed to invest in prevention and other alternatives. So not only is there not savings to reinvest, the report also notes that “The lack of available and affordable community-based substance abuse treatment, mental health treatment, and housing assistance programs has been a significant challenge for Pretrial Services, and it will continue absent additional sustainable funding.” Perhaps the $135 million in Court fees and $50 million spent at the local level might have gone a long way to meet those needs without the costly bail reform.
Enter the Judiciary’s Office of Communications and Community Relations . They have been setting twitter afire with boasts of their rare but robust success on bail reform. In fact, the Courts have devoted significant efforts in publicly trumpeting their success. If only Justin Timberlake had this sort of promotional capacity and could unleash such tornadic tweet-storms. Of course, the State Courts’ arrangement with the Arnold Foundation, the proprietor of the criticized-as-lacking-transparency bail risk computer used in New Jersey, if anything like the arrangements we have seen in other states, requires the State Courts to have a media plan to toot their own horn—regardless of whether there is success or not.
The report indeed confirms this—the Judiciary “implemented [in 2015] a comprehensive outreach plan to inform and educate all stakeholders and the public regarding CJR.” The plan included “educating the media” in addition to a Bar Association Journal article campaign by sitting judges. In fact, the State Courts have plenty of time to sell their wares to “national newspapers and television programs such as the New York Times, the Wall Street Journal, the Washington Post, and PBS News Hour, as well as from the editorial boards of New Jersey’s leading newspapers, including the Star Ledger and The Record.” So it is no surprise we are seeing this level of horn-tooting. The self-promotional campaign of the successes of bail reform was not only pre-planned regardless of whether it worked or not, but now has actually become part of the success. In other words, one metric to measure our success is that we convinced everyone that it was working, so it must be working.
While the State Courts are making continuing videos about their successes, touting their half-baked statistics, likely contemplating a new TV studio to make higher quality self-promotional videos with greater court-swagger, and of course running a significant self-aggrandizing media and social-media campaign that supports the social meddling of admitted criminal-justice money-baller and former-Enron executive and billionaire John Arnold’s secret New Jersey bail computers, it might be time for someone to ask a simple question—DID IT WORK? We just don’t know, but if we get on twitter long enough, we can probably continue to indoctrinate ourselves into thinking it did without ever having seen the numbers.