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.