New Jersey Alters Its Bail System and Upends Legal Landscape

PATERSON, N.J. — Jamie Contrano squirmed at the defendant’s table inside the Passaic County Court House here. She had been charged with possessing four envelopes of heroin, and, having failed to show up for more than a dozen court appearances over the years, she was a perfect candidate for a high bail — and a lengthy jail stay.

But under an overhaul of New Jersey’s bail system, which went into effect Jan. 1, judges are now considering defendants’ flight risk and threat to public safety in deciding whether to detain them while they await trial. Otherwise, they are to be released, usually with certain conditions.

Judge Ernest M. Caposela, who oversees Passaic County, noted that Ms. Contrano, 39, had a job at a carwash and was seeing a doctor specializing in addiction. He decided to let her out. “Will she fall off the wagon?” Judge Caposela said in an interview after the hearing. “She might. But sitting in jail is only going to hurt her. She has a disease, so is that a person I want to keep in jail for five to six weeks?”

The hearing illustrated the sharply altered legal landscape after voters in 2014 supported amending New Jersey’s Constitution to nearly eliminate cash bail, a move that has placed the state in the forefront of a national movement aimed at changing a bail system that critics say discriminates against poor defendants, many of whom are blacks and Latinos. Defendants languishing in jail, unable to come up with modest bails for low-level offenses, often have their lives upended, losing jobs or having children taken away from them.

New Jersey’s changes, which were backed by Gov. Chris Christie, closely mirror those adopted by the federal judicial system and the District of Columbia, which have long shunned monetary bail in criminal proceedings. While a handful of other states like Kentucky and Colorado have pursued bail changes, New Jersey stands apart as having the most far-reaching overhaul.

Bail is still an option, but the reality is that judges have nearly done away with it. In the 3,382 cases statewide that were processed in the first four weeks of January, judges set bail only three times. An additional 283 defendants were held without bail because they were accused of a serious crime or were a significant flight risk, or both.

“A year ago, a defendant who appeared in court would have been forced to post bail in a majority of cases,” said the state’s chief justice, Stuart Rabner. “And one in eight inmates were being held because they couldn’t post bail of up to $2,500.” That is the typical amount for a minor offense, and bail bondsmen would usually seek 10 percent, or $250 in cash. Some defendants cannot afford even that.

The new approach, perhaps not surprisingly, has provoked protest from the bail bond industry, which says the system is allowing dangerous criminals out on the streets. “The system is just overloaded,” said Richard Blender, a lawyer in New Jersey who represents several bail bondsmen. “They can’t process these defendants fast enough. They are just pushing people out the door. You’re talking about child pornography, carjacking and aggravated sexual assault.”

But experts argue that a system relying on bail does not guarantee public safety. “There is nothing that says you can’t be a serial killer and a millionaire,” said Joseph E. Krakora, the state’s public defender.

E. Rely Vilcica, an assistant professor of criminal justice at Temple University, pointed out that drug dealers often had the means to post high bails and continued plying their trade. “Basically people who have money can buy their freedom,” Professor Vilcica said. “So cash bail doesn’t address the danger.”

Though not having to hold defendants in jails reduces spending, judicial officials said that cost savings did not motivate the changes to the system. (In some jurisdictions, like a county in North Carolina, jails have closed as pretrial detentions plummet.) Instead, they said, the overhaul was driven by a desire to address one of the ways in which the nation’s criminal justice system tends to fall hardest on poor and minority defendants.

A study by the Drug Policy Alliance in New Jersey, released in 2013, found that 39 percent of inmates were eligible to be released on bail, but that many could not meet amounts as low as $2,500.

“Large numbers of people were in our jails for weeks or months for low-level offenses,” said Roseanne Scotti, the New Jersey state director of the Drug Policy Alliance, a nonprofit advocacy group. “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.”

The new system assigns defendants scores of one to six, with one being the least risky. They receive a risk assessment within 48 hours of their arrests, though some judges, like Mr. Caposela, are striving to complete assessments within 24 hours.

Ms. Contrano, who was charged with heroin possession, had the worst score, both because of her 17 failures to appear in previous court cases and because of an outstanding assault charge. “I made a bad judgment call,” she said to the judge, referring to her recent arrest. “I’m sorry.”

Judge Caposela said the computer-generated scores did not tell the whole story and were a guide, not a directive. He ordered her to stay out of Paterson, which he said had the “purest and cheapest” heroin on the East Coast; to check in with the court officials; and to report for drug testing. “If I just let the computer make this call, she’s out of luck,” he said after Ms. Contrano’s detention hearing. “There’s a lot of careful consideration and contemplation.”

But the hundreds of bail bondsmen in New Jersey see the new system differently. As their industry faces collapse, they are rallying the public to bring back cash bail, posting examples of what they call the release of dangerous defendants to a Facebook page, “NJ Bail Reform — Why New Jersey is Less Safe at the Taxpayers Expense.”

They have highlighted cases like burglaries and sexual assaults. In one, a 20-year-old sex offender in Ocean County, Christopher Wilson, was charged with attempted sexual assault after he offered a gaming console to a 12-year-old girl in exchange for sex. He was placed under house arrest with an electronic monitoring bracelet pending trial. The local police chief, Richard J. Buzby Jr., then issued an emotional warning to parents, saying he “could not sleep tonight” if he remained silent.

Kirk Shaw, whose grandfather started Shaw Bail Bonds Agency in Hackensack in 1969, said the system had driven a stake through a four-generation business that now included his son. “We’re basically out of business,” he said. “We’re expected to monitor the defendants we do have out on bail, but we have no money coming in. This is all I’ve done since I was 18.”

Judicial officials reject the idea that dangerous criminals are flooding communities. “There is no system that eliminates all risk,” Chief Justice Rabner said. “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.”

Still, he acknowledged: “There will be a crisis one day, where a single defendant will violate conditions and does something that grabs the public’s attention. But that’s no different than before.”

Daniel Palazzo, a public defender in Passaic County and the lawyer for Ms. Contrano, points to recent cases as examples of how he believes the new system is more effective. A client charged with murder was detained pending trial. Under the old system, Mr. Palazzo said, the defendant, 20, who is accused in a fatal shooting in Paterson in September, could have theoretically posted a $500,000 to $1 million bail to win his release, because judges were obligated to set bail no matter the crime.

But another client charged with attempted murder was released under certain conditions. Before Jan. 1, the defendant, who is accused of a stabbing, would have faced bail of about $200,000 and most likely would have spent a year and a half in jail awaiting trial. “But there was a viable self-defense argument to be made,” Mr. Palazzo said, “because the victim had been the aggressor in the past.”

Some elected officials complain that a bail overhaul amounts to an unfunded mandate for counties, which have had to spend tens of millions of dollars on new sheriffs’ officers and prosecutorial investigators to escort defendants to court and to weigh seeking a motion to detain them.

But judicial reform advocates lauded New Jersey’s willingness to pursue a wholesale revision, rather than take baby steps. “It certainly is ambitious to take on a whole state at once,” said Cherise Fanno Burdeen, chief executive of the Pretrial Justice Institute, a nonprofit in Maryland. “We are incredibly proud of the seemingly successful arrival at a system that has moved away from money.”

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