As the rest of the nation waits for actual proof that NJ Bail Reform has worked, proponents continue to cite New Jersey as the model for all things bail – with data that doesn’t prove anything.
July 16 2018
by Jeff Clayton, Executive Director, American Bail Coalition
Former New Jersey Attorney General Christopher Porrino, in a joint op-ed with Elie Honig (former top brass at the New Jersey Prosecutors Office under Porrino) took to the papers today to ask a simple question, given the alleged complete success of New Jersey’s bail reform, what is the rest of the country waiting for?
Now, Porrino and Honig are both accomplished attorneys – as their new positions at the prestigious law firm Lowenstein Sandler LLP certainly attest to – so we can only assume the question was rhetorical – because the answer to their question is quite clear – PROOF that it actually works.
Causation. It’s a very important word when we start evaluating whether a massive expansion in government delivered on its promises.
Data. Another important word because without it you cannot evaluate what happened and aid in assessing causation.
Let’s start with data. Are people going to court? Are crimes while on bail down as a result of the new system? Is the system more biased than the previous bail system because it employs the use of a secretly-constructed risk algorithm built by the pretrial risk assessment guru Arnold Foundation owned by former Enron billionaire John Arnold?
There is no data. None.
So, do the courts have the data? Of course they do. The Courts have it and simply refuse to release it, and Porrino and Honig probably know the numbers are bad so they ignore it as well.
We can assume the unveiling of this data will come out when the Courts have the appropriate time to massage the data to make it look favorable. Or, perhaps they will simply wait it out until anyone who knows there should be data has long since forgotten.
It is truly amazing that this level of irresponsibility in providing real data regarding the performance of the New Jersey Bail Reform Act continues to remain one of the great mysteries of New Jersey. Lawmakers have requested it. Journalists have requested it. Researchers have requested it. The result? Nothing. NJ Courts hide behind court rules designed to shield them from full disclosure.
When will the legislature finally demand an audit to obtain these results considering the millions of dollars that have been spent and four years needed to implement bail reform?
Porrino and Honig cite the published results of New Jersey Courts as proof…but what data is actually in these reports? Jail reduction does not alone constitute the success of bail reform and the dynamic duo certainly know this.
First, the jail population dropped more on a percentage basis the full year before bail reform – without the reforms. New Jersey had already led the nation in jail population reduction for five years prior to bail reform. That’s a key piece data the public might need to know.
“New Jersey safely downsized its prison population by enhancing the efficiency of its parole process and increasing flexibility in the sentencing of low-level drug offenders,” Eisen and her co-authors wrote.
Second, the crime data presented does not indicate that new crimes while on bail dropped or what those numbers were. That was the point of the reforms, to reduce new crime while on bail.
Then there is causation. Moving on to key concept number two, causation, another key element entirely missing in Porrino and Honig’s commentary.
It would be amazing if bail reform as a single reform could drop the jail population by 20%, but it would not only be inaccurate to say that it would also be an insult to every other criminal justice reform enacted by the state that caused the trend prior to bail reform. Of course, a likely combination of factors is causing the jail population reduction. The duo cite nothing to prove that bail reform had any impact other than their own opinion not backed by anything approaching a reasonable assertion.
The same is true for the reduction in crime numbers cited by the pair. Nothing is cited that prove that bail reform is a cause whatsoever, and to what degree, if any. In fact, in an article that ran on N.J.com three months before bail reform was implemented, we learned the real reason for the trend—New Jersey was leading the nation in prison population reductions for five years before bail reform, and the reductions were caused in how New Jersey dealt with drug crimes.
As I travel the nation, jurisdictions are demanding the basic data from New Jersey, data that was easy to get before the reforms in a neatly packaged report by Dr. VanNostrand to prove the need for the reforms – another misleading report that was more theatrics than facts…relying on gross assumptions of why someone was incarcerated pretrial.
New Jersey has yet to prove anything – with 18 months and a total of four and a half years since the bail reform effort began, we have nothing that proves it works except to cite alleged success in the New Jersey criminal justice system and blame them on bail reform with absolutely no basis to prove causation. Plus, even if it did, it does not ultimately tell us whether the reforms were worth the money, especially given that the program is out of money next year. I tell people the jury is out on whether it worked, and I do not assume the jury will ever come back at this point.
Other jurisdictions are wise to ignore New Jersey’s failed bail reform effort.
Here are the highlights for those considering New Jersey’s blueprint of bail reform legislation:
- Bail Reform will cost millions to implement – Millions with a capital M.
- Locking people up and denying defendant’s Right to Bail will be the norm considering 44% of all felony cases are being challenged to detain individuals – with an 18% success rate.
- Defendants charged with serious felonies (gun charges, sexual assault, drug trafficking, etc.) will be released on nothing more than a handshake and a “promise.” (Free taxpayer bus pass included)
- When defendants are released, expect a litany of onerous e-carceration conditions (courtesy of the “tool”), such as ankle monitors, drug testing, and other conditions usually reserved for those actually convicted and on probation.
Porrino has come a long way since his tenure as Attorney General. It was just a short 15 months ago when Porinno was urging the courts to change the “proven risk-based system” just three months after implementation – under pressure from law enforcement seeing the results of dangerous offenders being released unaccountable.
He sang an entirely different tune then…
“…we strongly recommend that the PSA (in particular, the Violent Offense List Appendix) and/or the DMF be supplemented and modified.”