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Eliminating bail speeds adjudication, adds costs to N.J. counties

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Eliminating bail in New Jersey will thin out jail population but require new hires by counties to process defendants 

The new year brought bail reform to New Jersey, keeping many nonviolent offenders out of jail while they await trial. But the counties responsible for managing the process say the costs to do so will mount.

The Garden State follows another reform effort in Kentucky six years earlier  and may add momentum to similar efforts in nine other states.

In the meantime, while supporting the measures that will eliminate bail, New Jersey Association of Counties Executive Director John Donnadio said the necessary staff additions and information technology upgrades could cost the state’s 21 counties $50 million annually. Along with bail elimination, adjudication schedules were sped up.

“We supported the law all along; we think it’s good public policy and we never opposed it on the merits,” he said. “We believe it will help long-term to control county jail costs, but we don’t know when we will realize those costs savings. It’s very difficult to recoup money for capital improvements or staff.”

Voters approved a constitutional amendment in 2014 that permitted judges to keep high-risk defendants detained without bail, while eliminating bail for most nonviolent charges and prescribing supervised release for others.

“The problem, historically, has been … that too many poor defendants who pose a minimal risk of danger, minimal risk of flight, sit in jail for too long pretrial because they can’t make even modest amounts of bail,” state Supreme Court Chief Justice Stuart Rabner said when announcing the reforms.

Penny Stinson, president of the National Association of Pretrial Services Agencies, characterized bail population reduction as a bipartisan issue that has been gaining momentum, with state governments examining their bail policies in Alabama, Arizona, California, Maryland, Minnesota, New Mexico, Texas, Washington and Wisconsin. The national political climate, however, could change things.

 “You never know with the change of administration, there’s hope that it won’t abate and there are strong voices from both sides,” she said. “The reliance on bail is very ingrained in our criminal justice culture, but there’s a push by practitioners who work in the field who have seen the results of what money in the system did and who we ended up incarcerating and who were inclined to be involved in criminal activity in the future.”

Overall, it will relieve county jails of having to detain defendants who don’t pose risks fleeing or reoffending, but it adds new urgency because now a judge must determine whether to detain or release a defendant within 48 hours. That forces court facilities to remain open on weekends and holidays. Guidance on whether to detain a defendant is provided by the Laura and John Arnold Foundation’s Public Safety Assessment algorithm, which judges have discretion to override, according to state Administration of Courts spokesman Peter McAleer.

In January 2017, defendants in 283 of 506 cases were held for detention; many of the rest were under supervised release.

The state association appealed to the State Council on Local Mandates to delay the implementation of the new law, but was denied. It did succeed, however, in getting authorization to do videoconferencing with judges in half of the state’s counties, which Donnadio said should cut some costs. Still, expediting the determination of detention will require counties to hire more investigators, prosecutors, corrections officers and make capital improvements for court facilities and information technology upgrades.

County executives around the state have touted their own reductions of their bail population, and while they support the law, they’re skeptical about how quickly they will save money.

“Bail reform? Sure bail reform sounds great, but we didn’t know exactly how they were going to do it,” said Atlantic County Executive Dennis Levinson.

“I voted for it like everyone else. It was never articulated how it would occur. It was sold as a cost savings measure; they said you wouldn’t be responsible for the cost of incarceration. Nobody mentioned the costs we would be responsible for.”

And how it occurred, he said, put a financial burden on counties before allowing them to try their own.

“We’ve been cutting down on our own bail population with tracking bracelets,” he said, noting that Atlantic County had reduced its earlier 1,200-person bail population by 500.

He estimates annual costs of $800,000 for his county of 270,000.

Judicial discretion was the focus of Kentucky’s bail reform that started in 2011.

“It’s a mixed bag,” said Shellie Hampton, director of government relations for the Kentucky Association of Counties. “It depends on the judge you get in front of. Every person who isn’t held in jail is a little savings, but it’s not as widespread as in New Jersey.”

She said that judges could be overly cautious to release defendants with tracking monitors, a fear that back in New Jersey, Mercer County Executive Brian Hughes echoed.

“I’ve talked to judges and prosecutors who are worried they’ll release someone on a minimal charge with a bracelet on their ankle and they’ll go out and commit a murder,” he said.

Hughes is optimistic the changes would lighten the load on the jail, but in the meantime Mercer County hired seven more investigators, 12 prosecutors and a handful of additional clerical staff, costing $750,000 to $1 million per year for the county of 379,000 people.

“They’ll need cars, cell phones, training; it’s going to be a hefty number,” Hughes said.

He said Mercer County had already cut thousands from its bail population by eliminating bonds less than $2,000.

“Hopefully this will have a payoff in the end,” he said. “It’s going to take time to break even. Unless we can close an entire wing of the jail, we won’t be able to start saving money, but if we can get there, we’ll be able to start reducing the number of corrections officers.”

Pilot programs in March 2016 gave Camden, Morris, Passaic and Sussex counties a chance to get a head start on implementation. Although the state had not yet allowed judges to deny bail to defendants, those counties still operated a parallel system to see how cases would be treated starting in 2017, according to Sussex County First Assistant Prosecutor Greg Mueller.

 Once the law was enacted in January 2017, Mueller’s office moved only six defendants to pretrial detention. He estimated that Sussex County’s criminal court sees roughly 1,000 cases per year, the majority of which are resolved via plea.

“I think that it’s resulting in far fewer people being held in the county jail pending trial,” he said. “Those screenings have taken 20–30 minutes each and haven’t been too taxing on the courts, our office or the public defender’s office.”

 From the prosecutorial side, Mueller supports the change.

“The schedules we have to stick to are fairer for the defendants and get things moving faster for us,” he said. “We had cases in the old system that took as long as five years, that’s not good for the defendant or the victims. Cases can get weaker, recollection can be impacted, it’s better all around.”

 Now, prosecutors have 90 days to get a case to a grand jury and if indicted, 180 days to try them. Even with any combination of 13 exemptions, the case must be tried within two years.

Mercer County’s Hughes said due diligence in applying the new law would go a long way to making it work well.

 “I’m very optimistic,” he said. “There’s a lot of young men and women who commit a minor crime and their second chance is not being stuck in jail because they can’t afford to get out. As long as you have a way to monitor them and keep in touch with them, it’s not going to lead to a life of crime.”

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