New Jersey Tries An Ethics Experiment

bail-reform

New Jersey, a state for which many would say ethics itself would be a novelty, has taken the lead in a truly revolutionary criminal justice experiment that resolves an ancient ethical dilemma in favor of mercy and compassion. Beginning on January 1 this year, New Jersey  judges are expected to release all but the most dangerous and untrustworthy defendants pending their trials, often with certain conditions, rather than  to require cash bail as a condition of avoiding jail.

In 2014, voters decided to amend New Jersey’s Constitution and virtually eliminate bail, responding to a national movement to reform a system that has always discriminated against poor defendants. Although bail requirements are usually modest for most offenses (a bail bondsman typically charges a defendant 10% to post the entire bond), many defendants are still unable to pay even small amounts. Then they wait in jail, often losing their jobs and causing hardship for their families.

The federal judicial system and the District of Columbia have led the way by nearly eliminating bail in criminal proceedings, but New Jersey is the first state to try it wholesale. The New York Times reported that judges set bail only three times out of the 3,382 cases  processed in the first four weeks of January. Only 283 New Jersey defendants were held without bail because they were judged to be dangerous or were assessed to be a flight risk. In 2016, in contrast, one in eight New Jersey inmates were being held because they couldn’t post bail of $2,500 or less. The typical bail system, which New Jersey has now rejected,  resulted in institutional favoritism for accused criminals who had access to money.

“Large numbers of people were in our jails for weeks or months for low-level offenses,” Roseanne Scotti, the New Jersey state director of the Drug Policy Alliance, told the Times. “They are innocent until proven guilty, but their whole lives are derailed. While they are in there, they lose homes and jobs and contact with their families. But if you have money, you can walk.” Under the new kinder, gentler system, money is irrelevant. Defendants receive a risk assessment within 48 hours of their arrests, and judges use the score to decide if special limitations on a defendant’s freedom is warranted.

Meanwhile, the new system threatens the bail bond industry with extinction in the Garden State. The bail bond companies, almost all small businesses and often passed along in a family for generations, are trying to get the experiment halted before they are driven out of business. They have posted a Facebook page that will highlight the system’s failures. (That’s its subtle and tasteful banner above.)

The intellectual challenge their argument faces is simple but daunting: citizens are innocent until proven guilty. The reason for pre-trial detention is to ensure that defendants show up for trial, and not to begin their punishment before a trial has taken place. “There is no system that eliminates all risk,” says a judge in the Times story. “Last year, there was a risk that anyone released on bail could go out and commit a serious crime pending trial. What we are attempting to do is evaluate the level of risk with objective measures.”

The challenge the new system will have to face is  the inevitable “Barn Door Fallacy” impulse, when some defendant released on his or her own recognizance commits a terrible and well-publicized crime. Will that single incident, when it comes, be sufficient to cause the public to change its mind, declare the ethics experiment too risky and a failure, and go back to keeping indigent defendants in jail while rich ones go free?

We shall see.

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Sources: New York Times, NJ.com

23 Comments

Filed under Business & Commercial, Citizenship, Ethics Alarms Award Nominee, Government & Politics, Law & Law Enforcement

23 responses to “New Jersey Tries An Ethics Experiment

  1. Glenn Logan

    I don’t hate this idea, at least until it proves itself unworthy. This:

    The intellectual challenge their argument faces is simple but daunting: citizens are innocent until proven guilty. The reason for pre-trial detention is to ensure that defendants show up for trial, and not to begin their punishment before a trial has taken place. “There is no system that eliminates all risk,” says a judge in the Times story. “Last year, there was a risk that anyone released on bail could go out and commit a serious crime pending trial. What we are attempting to do is evaluate the level of risk with objective measures.”

    … makes sense. Bail has the unfortunate effect of helping create even more social problems among the economically distressed communities that provide most of the defendants. That doesn’t mean we shouldn’t punish them when they break the law, but at the same time, enabling them to keep their jobs while dealing with a minor offense sounds like a noble goal.

    In practice, this thing could go sideways, and one or two minor offenders who ultimately prove they just needed a little more time on the street to become murderers or rapists are likely to be its downfall. But I hope for the best, while expecting … less.

  2. I’ll have more to add later but this bit:

    “Meanwhile, the new system threatens the bail bond industry with extinction in the Garden State. The bail bond companies, almost all small businesses and often passed along in a family for generations, are trying to get the experiment halted before they are driven out of business”

    I have sympathy for those people who will probably find it extremely difficult to switch careers if they are several decades in… but not so much sympathy- I’ve never had a great pull to protect any industry that arises *solely* because of a legal construct or government practice.

    If the day the legal construct must be amended or the government practice abolished for the good of the community, then sorry guys, halting those changes are NOT a consideration to save your industry. Industries that don’t arise from natural market forces (that is to say would this industry have arisen if it weren’t for some sort of governmental action) don’t garner special consideration in my book.

    • valkygrrl

      That implies some industries are worthy of special treatment. Which ones?

      • As a matter of fact it does not necessarily imply that. Though I understand the confusion, lacking further exposition on my part, a reader affirming the consequent makes one of the most common assumptions to make (though in error).

        What it does imply is that the opposite of NOT garnering ANY special consideration is actually a continuum that is bounded on one end by garnering ALL special consideration and garnering one notch greater than NO special consideration.

        If I’d had the time to expound this morning, I would have indicated that any industry that naturally arises to meet community needs and create value that MAY be impacted by a change to law or government practice DOES garner SOME level (either next to none or a whole lot) of consideration as to whether or not the change IS worth it.

        In this instance, using parallel language –

        Any industry that unnaturally arises *because of a governmental practice or a law* that MAY be impacted by a change to the law or government practice DOES NOT garner ANY level of consideration.

        And please note, my assertion was “garnering a level of consideration”, NOT “being worthy of special treatment”…two separate tasks…consideration coming before treatment and all…

        • valkygrrl

          Fair enough. I wasn’t picking a fight, I was asking for more information and I apparently used the wrong word. Treatment should be read as consideration.

          • Then if this is the question:

            “That implies some industries are worthy of special consideration (if a change in law or governmental practice may affect them). Which ones?”

            Any industry that arises naturally to meet needs created by market interactions or community commerce and not arises to meet an need artificially created by the government.

            • valkygrrl

              So if I understand you. if they exist by sucking the government teet no consideration, everyone else non-zero consideration?

              • No, bail bond companies don’t exist by “sucking the government teet”, but they do exist to fulfill a need created by the government. And if it can be shown that the policy that creates that need is ethically or philosophically antithetical to our values, then the removal of the policy should occur with NO consideration to the effects on any derivative industry.

                If imposing bail can be shown to be in opposition to our concepts of innocent until proven guilty or they create undue hardship and we therefore abolish the concept altogether, then it doesn’t matter that the bail bond industry collapses.

                Yes, I have sympathy for the people who may be so far into bail bonding that they have no ability to switch career paths. But, though something *could be* done to alleviate their hardships, I don’t know how much *should be* done to do so.

                • Which to be clear doesn’t mean I don’t have opinions about organizations and individuals who have found ways to “suck the government teet”.

                  I just think that phrase opens up a topic separate (though distantly related) to this topic.

                  • E2 (nee Elizabeth I)

                    Some industries are affected by governmental decisions. The majority rise or fall on market forces. Televisions are amazingly cheap these days and aren’t full of tubes and wires: anyone feel sorry for the old TV repairman? No. Pushed out by advancing technology and pure market forces. The conversation about bail bondsmen should be in this vein as well,

                    • valkygrrl

                      Market forces ended TV repairmen over time not overnight..I’m personally not overly worried about the bail bonds family businesses since the capital they need to run such a business is fairly large and liquid, they’re not being tossed in the streets penniless. I worry about what happens if this experiment fails and bail returns with no bail bondsmen.

                    • Because once gone always gone…?

                      What?!

                    • I’m not sure how to respond to this…

                      “Some industries are affected by governmental decisions. The majority rise or fall on market forces. “

                      I would submit that ALL industries CAN be affected by laws and governmental practices. But my focus was specifically on industries that arise only because of a need *artificially* generated by law or governmental practice. I wasn’t focused on any other industries, that is to say industries arising to meet a need generated naturally by the community and market. And of industries born to meet the needs resulting from governmental action, I wasn’t even focused on industries that meet various contract demands of the government or industries that thrive on government subsidy…I focused specifically on industries that arise because people need help dealing with governmental action.

                      In this case we’re talking bail bondsmen…

                      Another example would be tax advisors – if the government ever decided to establish a simple tax code that people could figure out in one sitting with no loopholes and do themselves, I could care less if it caused the tax preparing companies to fold up.

                      “Televisions are amazingly cheap these days and aren’t full of tubes and wires: anyone feel sorry for the old TV repairman? No. Pushed out by advancing technology and pure market forces.”

                      I take no issue with this generalization.

                      “The conversation about bail bondsmen should be in this vein as well,”

                      Either, I don’t know how you make the connection here or I don’t know the point of this. From the first angle, bail bondsmen are not reacting to ANY natural creation of the market, but react ONLY when the government has imposed a cash demand on a citizen. From the second angle, yeah, their industry would collapse, immediately, if the government immediately quit imposing bail. Need gone, provider gone. Simple.

  3. Will this experiment be a success or fail, only time will tell.

    How do you judge if the experiment is a failure?

    How do you judge if the experiment is a success?

    How do they determine who’s a danger to society, who is untrustworthy, who is a flight risk, and who assesses if the individuals that walk out the door will have an “I’ve got nothing to loose” attitude?

    Personally if a defendant is judged to be a danger to society then why should there be any method of release bail or otherwise, hold them over for trial – period.

    Opinion: The system is too slow. The time it takes from arrest to trial takes way too long in some areas of the country. Somehow the system needs to be streamlined to vastly reduce the arrest-to-trial time and allow justice to take place in a much more reasonable period of time. That probably means increasing the number of judges and the number of court rooms and likely an increase in taxes.

    Choices, choices, choices.

    • A quick summary of what I hope to discuss later, because this issue I think is more complex than JUST Bail Rates:

      1) Right to a speedy trial –
      a) Are there currently standards for how quickly a trial must be held? The trial for which I sat in a jury was a full 7 months after the arrest – and that was just a low level drug charge.
      b) If there are not, should there be?
      c) How should they be graded if they should be graded…that is to say, does severity of the accusation change the time frame a trial must be held?
      d) Would the imposition of such a standard create too many ways for a defense counsel to game the system to have trials thrown out on mere timing, if the standards were *too* short. If so, what’s the balance for a “speedy” trial?

      2) The whole history and philosophy behind bail bonding (which I’d never understood until this post compelled me to learn).

      3) The need to “incentivize” (to use a euphemism) appearing at court
      a) If not bail, then what?
      b) Severe penalty for failure to appear? When in doubt, before deeper deliberations, my gut instinct is to say “fewer, simpler rules, but much harsher penalties”…in which case the argument defaults to something like: abolish Bail altogether, but hold over the heads of defendants a severe penalty for failure to appear.
      c) How would that standard be graded, if it should be graded…that is to say, does severity of the accusation change the penalty for failure to appear?

  4. wyogranny

    Will this mean the end of Stephanie Plum? I was hoping she’d get to 50 at least.

    • Mike

      I know what you read. I did not like that movie one bit. It needed more Fisher Stevens.

      • wyogranny

        I didn’t see the movie. Was it good?

        • wyogranny

          Ist prize for dumb comment. You just said you didn’t like it?
          Fisher Stevens is the only redeeming feature? I admit my view of New Jersey is tainted by reading Janet Evanovic.

          • Mike

            Sorry, for misleading you. On the technical notes I can say that it is a good movie. Well constructed, and since I haven’t read the novels, I assumed a good adaptation of the main character, Stephanie Plum. What I got from the movie, is, that the novels are primarily romance. One of her side dilemmas was choosing between two qualified men. Anyway, not the type of movie I would chose to watch. However, it was one of those movies where once you have watched enough, you can’t stop because it is a little bit, more, better than bad, and you just have to know how it ends. I say if you like the character, give it a try.

  5. Wayne

    Let’s just see what happens with the murder and violent crime rate over the next few months. I’m skeptical of this experiment to say the least.

  6. E2 (nee Elizabeth I)

    Because I know from personal experience that the wheels of the justice system roll ever so slowly, one of my concerns is the time line: What kind of fair evaluation can be made in 48 hours about whether a person is a danger to the community or a flight risk? 48 hours? Also would like to know what contractor came up with the questionnaire and who is doing the questioning.

    Assuming that through some miracle New Jersey is changing not only its bail process but its scheduling and its judges’ calendars, as well as making a complete turn-around in its record in the policing/justice arena (see Bridgegate), then let’s give the new system a shot,

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