How New Jersey Made a Bail Breakthrough

Cases like State v. Raymond Johnson occur dozens of times a day in New Jersey courtrooms, perhaps hundreds of times a day across the United States. The defendant, a 57-year old African American man, was arrested in Hamilton, about 10 miles from Princeton, while driving a stolen car. Sitting in the Mercer County Criminal Courthouse on a morning in mid-March, just before the COVID-19 lockdown, Johnson was charged with receiving stolen property, possession of fentanyl, and resisting apprehension.

A few years ago, Johnson might have been given bail of anything from several hundred to a few thousand dollars and released if he could pay it — a major “if.” If he could not pay, he would have remained in jail until his trial, whenever that happened to be. But in 2017, New Jersey all but did away with cash bail, replacing it with a system that allows most defendants to go free pending trial while empowering judges to detain a few who are accused of a violent crime or assessed as a risk for not showing up in court. 

In terms of its stated goal of reducing the widespread incarceration of poor defendants, most of them Black or Hispanic, New Jersey’s program has been a success: Over the last three years, the number of people in jail awaiting trial has fallen by more than 40 percent. Bail reform also was coupled with a Speedy Trial Act requiring that defendants who are detained be brought to trial within six months of their indictment. 

Though the new system continues to have critics, New Jersey’s experience with bail reform is also an example of something increasingly rare in American politics: a big, transformative piece of legislation achieved through broad-based compromise. Two men have been singled out for their efforts in changing the system: state Supreme Court Chief Justice Stuart Rabner ’82 and the state’s public defender, Joseph Krakora ’76.

In the end, the new system didn’t stop Johnson from being detained as he awaited trial. Though the charges against him were considered relatively minor and not sufficient by themselves to keep him behind bars, this was not his first brush with the law. He had a long criminal record, was out on probation at the time of his arrest, and had 19 citations for failing to appear for court dates. His court-appointed public defender argued that Johnson did not know the car was stolen when he borrowed it from a friend and that his prior failures to appear could be explained. Johnson was a lifelong Trenton resident and had children in the area, she said, so he would not try to flee. But after a 20-minute hearing, the judge ruled that Johnson’s previous failures to appear were sufficient reason to detain him — without bail. 

It is a noteworthy feature of New Jersey’s constitution that the state government is highly centralized. The governor and lieutenant governor are the only officials elected statewide, which helps insulate all other members of the executive and judicial branches from political pressures. Furthermore, the state’s entire judicial system is administered by the chief justice of the state Supreme Court, and a single public defender’s office handles cases for indigent defendants all across the state.

That last point may explain the size of Krakora’s office in Trenton’s Richard J. Hughes Justice Complex, which offers a view of the Delaware River and seems enormous for a public defender. A tall, lean man who looks like the professional tennis player he once was, Krakora leans back in his desk chair and tells the story of how New Jersey became an example for how to achieve bail reform. 

Across the country, thousands of city and county jails are filled with men and women who are simply awaiting trial. Cash bail is intended to allow them to be released by giving them a financial incentive to return for their court date. However, Krakora, a career defense attorney, says there is little evidence that the system works; instead it often serves to criminalize poverty. A wealthy person charged with a serious crime can post a high bail and go free, while a poor person, charged with a trifling offense, could spend months in jail because he cannot raise even a few hundred dollars.

The old cash-bail system functioned as a system of preventative detention, says New Jersey Public Defender Joseph Krakora ’76.

Photo: Ricardo Barros

Beyond the obvious unfairness of such a system, those stuck in jail often lose their jobs or their place in school. Their families also suffer from their absence, financially and emotionally. Studies have shown that people stuck in jail are more likely to be convicted and sentenced to prison when they do go to trial. Knowing that, poor defendants are more likely to plead guilty to the charges against them, which leaves them with criminal records that may impede their employment prospects in the future. 

In an interview several years ago, Krakora explained the literal prisoner’s dilemma this way: “You can sit in jail and wait for your trial, which will be months away, where you may or may not be acquitted, notwithstanding your claim that you did it or not, or you can plead guilty today and you can go home. What’s a 19-year-old, 20-, 21-year-old going to do?”

The impetus to replace that system came from a 2013 study of the state’s jail population by the New Jersey Drug Policy Alliance. The report found that on a single day, Oct. 12, 2012, more than 1,500 people — 12 percent of the entire New Jersey jail population — were being held because they could not meet bail of $2,500 or less. Of that group, more than 800 people could not meet bail of $500. Furthermore, 71 percent of the people in jail were African American or Latino and many of them had been there for a long time. Defendants awaiting trial, the report stated, had been in jail an average of 314 days.

Krakora brought the report to the attention of Chief Justice Rabner. A former federal prosecutor and state attorney general, Rabner was appointed to the Supreme Court in 2007. Widely praised for his fairness (he has been mentioned as a candidate for the U.S. Supreme Court), he was trusted by both progressives and conservatives. Although Rabner had advocated for changes to the bail system before, the Drug Policy Alliance report, he admits, “was a wake-up call for a number of us, myself included.”

Using his authority as chief administrator of the state judicial system, Rabner created the Joint Committee on Criminal Justice to consider possible reforms. It was a large committee, consisting of more than 30 people, but included representatives of nearly every office that dealt with criminal justice, including the judiciary, the governor’s office, the attorney general’s office, the public defender’s office, both houses of the legislature, and nongovernmental officials such as private criminal-defense attorneys and the American Civil Liberties Union. 

Though the problem was big, the committee’s approach to it, at least initially, was not. At their first meeting, Rabner asked what incremental changes the group could recommend without having to get a bill through the legislature or a constitutional amendment approved by voters. The group voted unanimously that small fixes were impossible; the only choice was to tear down the existing system and start over.

In March 2014, the Joint Committee issued its report, with no dissenters. It recommended that the state release criminal defendants as a matter of course unless a judge found by “clear and convincing evidence that no condition or combination of conditions” would assure that he or she would appear in court, would not pose a danger to the community, and would not obstruct the criminal-justice process in the interim. Legislation enacting these recommendations stalled in the Assembly, prompting then-Gov. Chris Christie to call a special session in the summer of 2014 to break the impasse.

A 2013 report “was a wake-up call for a number of us, myself included,” said state Supreme Court Chief Justice Stuart Rabner ’82.

Photo: Ricardo Barros

Christie had campaigned to allow preventative detention — a system that allows a court to keep someone in jail who has not yet been convicted — in cases of violent crime. But shortly before the joint session convened he also asked Krakora to identify someone whose case illustrated the injustice of cash bail. Krakora told him about Iquan Small, a 21-year old African American man from Asbury Park who had spent four months in jail, on charges that were later dropped, because he could not pay his $4,000 bail. When Christie addressed a joint session of the legislature to call for sweeping bail reform, Small sat in the VIP section as his guest. 

With Christie’s prodding, the legislature approved the reform package by large majorities, and the following November, 62 percent of New Jersey voters approved a constitutional amendment to allow preventative detention in some situations. 

During the two-year period before the reforms took effect, Rabner, Krakora, and others crossed the state educating lawyers, judges, and members of law enforcement on the new bail system and how it would work. Meanwhile, a newly created pretrial-services division of the courts adopted a nine-factor risk-assessment tool, developed by the Laura and John Arnold Foundation, to guide prosecutors and judges in determining whether a defendant ought to be detained. The Arnold Foundation (now called Arnold Ventures) developed the rubric in 2013 based on a database of 1.5 million cases from 300 jurisdictions around the country. Drawing on nine factors such as age, type of offense, the existence of other pending charges, prior sentences, and prior failures to appear, each defendant is assigned a numerical score, on a scale from 1 to 6, assessing his or her risk of failing to appear, engaging in new criminal activity, and engaging in new violent criminal activity. Only the prosecutor can recommend detention, a recommendation the defendant can challenge in court. Judges can reject a recommendation of detention but they cannot detain someone on their own initiative. 

If a defendant is released, the pretrial-services division also oversees terms of that release, which can range from wearing an electronic monitor to periodic check-ins with court staff, either in person or remotely. Krakora notes that the new system contains another incentive for prosecutors not to seek detention: Defendants who are held in jail must now be indicted within 90 days and brought to trial within 180 days after that. 

The bail-reform bill also greatly increased funding for new technology that is central to making the system work, Krakora and Rabner emphasize. Police can now fingerprint suspects electronically and obtain not only the suspect’s prior criminal record but a preliminary risk-assessment score that helps them determine whether the defendant should be brought in on a complaint warrant or simply issued a summons and released on the spot. 

Results after three years indicate that bail reform has achieved its goal of sharply reducing the number of people being held for trial. A study by the MDRC Center for Criminal Justice Research showed that the number of people in New Jersey jails fell by 44 percent between 2015 and 2018. According to the Administrative Office of the Courts, there were roughly 6,000 fewer people in state jails on a single day in October 2018 than on the same date in 2012, and the number of days the average defendant spent in jail dropped by 40 percent. In 2017, the Pretrial Justice Institute gave New Jersey’s new bail system an A rating, the only state to receive it.

Opponents of the reforms, including police unions and the bail-bond lobby, predicted a surge of violent crime and missed court dates. There has, in fact, been a small decrease in the number of defendants who appeared for court dates, from 92.7 percent to 89.4 percent, and the rate of violent crime has ticked up by less than a percentage point. Krakora and Rabner believe the gains are worth those regressions.

However, bail reform has been criticized both for being too lenient and for being too punitive. In 2018, a defendant with two prior charges of violating a restraining order killed his ex-girlfriend shortly after being released from jail. This has led to calls for changing the risk-assessment rubrics relating to domestic violence, which the courts are now considering. 

Others object that risk-assessment algorithms at the heart of preventative detention are fraught with racial bias. Last year, 27 academics, including Ruha Benjamin, an associate professor in Princeton’s Department of African American Studies, published a statement claiming, “Actuarial pretrial risk assessments suffer from serious technical flaws that undermine their accuracy, validity, and effectiveness ... . When predicting violence, no tool available today can adequately distinguish one person’s pretrial risk of violence from another.”

One of Benjamin’s students, Micah Herskind ’19, studied New Jersey’s bail-reform law as part of his senior thesis. While acknowledging that the reforms have significantly reduced the number of minority defendants in jail, he notes in an interview that Blacks and Latinos continue to be detained at a disproportionate rate and criticizes the pretrial-services division for adding a new bureaucratic layer to a system of incarceration that is already too large. 

Krakora replies by pointing out that the old cash-bail system functioned as a system of preventative detention, in fact if not in name, but one that did not require prosecutors and judges to define their reasons for detaining someone or give defendants a chance to challenge their decision.

“We were replacing a horrid system with one that is hopefully slightly less horrid.” — Alexander Shalom, senior staff attorney at the ACLU of New Jersey and a member of the Joint Committee on Criminal Justice

Alexander Shalom, the senior staff attorney at the ACLU of New Jersey and a member of the Joint Committee, says he agrees with Herskind’s assessment that the criminal-justice system remains racially biased but suggests that, in the case of bail reform, the perfect should not be the enemy of the good. “We weren’t replacing a good system with a better system; we were replacing a horrid system with one that is hopefully slightly less horrid.” Shalom hopes that detention and incarceration statistics now published regularly by the division will provide data the ACLU can eventually use to challenge other racial disparities in the criminal-justice system.

Although cash bail is often cited as an important driver of mass incarceration, only a few other places have begun to replace it. California followed New Jersey by eliminating cash bail in 2018, and a number of other places have made more modest reforms. Rabner and Krakora say several factors enabled New Jersey to act quickly and comprehensively, including the fact that a relatively small group of decisionmakers could recommend changes for the entire state. The Joint Committee, Rabner says, “created a safe space to discuss all of the issues, and by broadening the issues, both sides were able to join together.”

“Look,” Shalom says, “Chris Christie did not come to this work because he thought there were too many poor Black folks being detained. He wanted preventative detention. But by the end, he was talking about our jails as debtors prisons. He adopted the talking points of our movement, and that is a testament to the politics working. People became true believers in the totality of the reform and not just in their piece of it.”

From his unique perspective supervising the public defender’s office for the entire state, Krakora can cite success stories from Paterson to Cape May. He mentions a young Black man who was arrested in Monmouth County shortly after bail reform took effect, charged with second-degree aggravated assault, an offense that carried a possible sentence of five to 10 years. Nevertheless, he was released on conditions that included a period of home detention and supervision by the pretrial-services division. During a period when he might previously have sat in jail, the man instead attended anger-management classes and got a job as a car mechanic. When his case did come to trial, the court recognized the progress he had made and sentenced him to probation rather than prison.

Each case is different, of course, but Krakora is quick to point out that even defendants who are detained now benefit from having their cases brought to trial more quickly. Raymond Johnson, the man facing his pretrial detention hearing in Trenton last March, is a case in point. On June 26, after spending 108 days in jail, he pleaded guilty to receiving stolen property. Other charges were dismissed, and he was sentenced to five years of probation, conditioned upon his successfully completing the Mercer County Drug Court Program, which helps nonviolent offenders get treatment to cure their substance addiction. He was then released from custody.  

Mark F. Bernstein is PAW’s senior writer.