One year in, New Jersey’s bail reform still a contentious issue
Bail reform has provoked no shortage of reactions since it was implemented a year ago. Some New Jerseyeans thunderously applauded it as a boon for the poor and minorities who were once trapped in a bail system that gave wealthy, sometimes more dangerous defendants a leg up.
Others in the bail industry, often demonized as unscrupulous people who took advantage of downtrodden and disenfranchised defendants, called reform efforts in the Garden State and elsewhere one of the most “outrageous, irresponsible government boondoggles ever created.”
“A bad idea on steroids,” is how the Professional Bail Agents of the United States, an industry trade group, described it in a nearly five-minute spot on its website.
Two major federal lawsuits in New Jersey – one championed by reality television star Duane Chapman, also known as “Dog the Bounty Hunter” – have arisen challenging the Gov. Chris Christie-backed Criminal Justice Reform Act, a well-intentioned government program that has lowered statewide inmate populations at the expense of crippling people who established family-owned businesses centered on a trade.
Garden State bondsmen like Christopher Blaylock, who runs a website critical of bail reform, often cherry-pick the most egregious examples of judges allowing people accused of heinous crimes to walk on what he told one website was a “pinky promise.”
While many lawmakers and advocates are pie-in-the-sky over reform, the posts on Blaylock’s website churn fear that the sky is falling.
“Man attacks family with crowbar and knife Christmas Day FREE TO GO under NM Bail Reform,” read one recent headline, referring to New Mexico’s approach to bail reform, which uses a similar risk-assessment model as New Jersey.
The core objective of the state’s revamped criminal justice system — the ability to keep dangerous new arrestees in jail on a no-bail order while ensuring low-risk defendants who once were too poor to get out are released on non-monetary conditions — has sometimes been lost in the fervor.
“Bail reform is one of those government programs undertaken with the best of intentions, too often achieving disastrous results, mostly at the expense of unsuspecting third parties,” John “Jack” Furlong, a criminal defense attorney who represents ABC Bonds, one of the state’s biggest agencies, told The Trentonian via email. “I’ve seen innocent women held for a week on a motion for detention, only to have a judge ask, in sum, ‘Where’s the beef?’”
The beef for Assemblyman John McKeon (D-Essex) was over the cost and the prospect of “putting the bail industry out of business” overnight.
Trying to strike a compromise to keep some bondsmen afloat, he proposed legislation late last year that would have allowed more defendants to bail out of jail before detention hearings.
The bill, which critics lambasted as a rollback of the reform package, died in committee.
While he supports bail reform and believes it won’t ever be repealed, McKeon plans to revive the bill and said he’ll be better equipped to retool it with a year of data under his belt.
He worries the revamped criminal justice system – which judicial officials already admitted earlier this year may need a bailout – could end up costing the state more money in the long haul.
“I hope I’m proven wrong,” McKeon said. “I hate to be proven right.”
For Alexander Shalom, a staff attorney at the American Civil Liberties Union of New Jersey, which was a big proponent of bail reform, detractors “willfully ignore” the failures of the vanquished system.
Shalom said the bail bond industry is enraged because it sees “the writing on the wall and is willing to spend vast sums of money in a futile attempt to maintain its ability to profit off of the misfortune of some of New Jersey’s most vulnerable residents.”
HOW THE SYSTEM WORKS
A majority of New Jersey voters in 2014 passed an amendment to the state’s Constitution giving prosecutors the power to place newly arrested defendants on pretrial detention effective Jan. 1, 2017, eliminating the constitutional right to bail.
Under the new system, high-risk offenders can no longer buy their way out of jail, while impoverished small-time offenders languish behind bars because of their inability to post bail.
Instead, bail hearings where judges decided how much money was needed to ensure defendants’ future appearances in court were scrapped for detention hearings.
To accommodate the new system, the state judiciary rolled out a risk-assessment tool created by the Arnold Foundation.
Known as a Public Safety Assessment (PSA), it ranks the potential risk of a defendant failing to appear in court and committing new criminal activity on a scale of 1 to 6.
The computerized PSA, which also flags defendants who are deemed likely to commit violent new crimes if released, recommends whether a defendant should be released from custody or detained. A judge decides whether to follow the recommendations.
Superior Court judges still have the authority to impose monetary bail as a condition of release for newly arrested defendants. But they are strongly discouraged from imposing monetary bail and consequently the judiciary said only 43 people across the Garden State – none of whom were defendants in Mercer County – had bail set as a condition of release.
The switch was geared toward curing the ills of the old system of monetary bails which was infamous for delivering justice at a snail’s pace. Certain defendants, for example, found themselves jailed on $1 million cash-only bails for more than 1,500 consecutive days before being put on trial.
The reform initiative now mandates defendants on pretrial detention have the right to a speedy trial that must occur within two years of detention.
Defendants incarcerated on pretrial detention are released if prosecutors fail to abide by the speedy trial mandates. For example, a detainee must be released if he or she is not indicted within 90 days of detention, not counting “excludable time,” periods that don’t count against deadlines, such as when defendants file motions for judges to consider.
TWEAKS TO THE SYSTEM
In the months bail reform has been in effect, the fledgling new system has received at least two major tweaks and may continue to undergo various modifications as prosecutors lobby for changes that promote public safety.
Earlier this year, the state Supreme Court approved changes intended to rectify some of the perceived shortcomings of how bail reform was being executed — including the critical change that increased detention prospects for defendants charged with brazen gun crimes.
This followed a revised edict from New Jersey Attorney General Christopher Porrino in May that directed prosecutors to apply for pretrial detention whenever defendants were arrested for firearms offenses and whenever they ran from police officers and were nabbed on second-degree eluding offenses that placed human lives at risk.
Yet concerns still remain that Superior Court judges are releasing certain defendants who should arguably be kept in jail without bail.
Mercer County Prosecutor Angelo Onofri was heartened by the AG’s directive since the carrying of firearms “really is the precursor to violence.”
The county’s top cop said he hopes other petty crimes are given more weight when judges decide who stays in jail and who goes.
“Since burglary is not considered to be a violent crime a lot of the burglars are being released, and that is one of the highest recidivism rates for any offense, so that is of some concern,” he said.
Some view things in more dystopian terms likening the impact of reform to the plot in “The Purge,” a movie in which crime is sanctioned in America for 12 hours to allow blood-lusting citizens an opportunity to unleash homicidal urges without repercussions.
Ironically, in the movie, the state-sanctioned holiday leads to a drastic reduction in crime.
That’s not the case portrayed by a Facebook page popular among New Jersey law enforcement officials that plays on the movie’s doomsday tropes.
Featuring a masked character wielding an assault rifle, the social media page employs common scare tactics: “New Jersey Criminal Justice Reform. Every night is ‘purge’ night. Coming to a New Jersey street near you.”
One Trenton Police official, who asked for anonymity to speak more freely, said the criminal justice reform has led to a practice known loosely in law enforcement as “catch and release.”
Petty criminals, some of whom commit property crimes, get nabbed by the cops and are back on the streets within days.
“It’s a big hindrance on law enforcement,” the official said. “It’s great for those individuals who are constantly committing crime. It’s a big burden. Before, we didn’t have to do all the running of all kinds of score sheets to figure out who got put in jail or released on a summons.”
The official believed bail reform needs to be “rethought.”
It should be noted that the apparent crime wave the TPD official alluded to hasn’t swept the Garden State.
There have been no dramatic upticks in crime since bail reform went in to effect, according to the latest State Police statistics.
From January through September 2017, rapes and shootings are slightly up from the same period last year while murders, robberies and assaults have dipped.
Petty crimes, like larceny and auto theft, have risen between 4 and 8 percent.
Through September, Trenton had one fewer murder (18) than for the same period last year while rapes increased by 28 percent. Larcenies and auto theft in the capital city jumped up by 3 to 5 percent.
JAIL POPULATION DOWN
One figure that has declined is New Jersey’s jail population, which sharply dropped by 35.6 percent over the last two years as the state transitioned away from a monetary-based criminal justice system to the risk-assessment system.
At the beginning of 2017, roughly 7,200 defendants were being jailed pending final resolution of their criminal matters. That number as of Nov. 30 has dropped by 16 percent, to just under 6,000 non-sentenced defendants sitting in Garden State correctional facilities, according to preliminary data.
The state, from Jan. 1 through Nov. 30, has processed almost 41,000 criminal defendants on complaint warrants. Within that group, 7,410 or 18 percent of the 2017 defendant population has been placed on pretrial detention.
Another 80 percent of the defendants arrested by complaint warrant during the first 11 months of 2017 have been released on their own recognizance or released with varying levels of pretrial monitoring conditions, according to the state judiciary.
That pattern held true in Mercer County.
County Executive Brian Hughes said the jail population at the Hopewell Township facility has been reduced by nearly half from roughly 850 inmates housed there before bail reform took effect.
The emptying of jails across the state was part of the reason the national nonprofit, Pretrial Justice Institute, ranked New Jersey as having the nation’s best criminal justice system.
The Maryland-based organization, also known as PJI, graded all 50 states on a scale of A-to-F. There were 13 Ds and 17 Fs, but New Jersey was the only state to receive an A in PJI’s analysis.
“The new system has, so far, been phenomenal,” PJI said in its report.
As of Nov. 30, the state has filed nearly 18,000 motions for pretrial detention. New Jersey Superior Court judges have ordered 7,410 criminal defendants onto pretrial detention while denying another 5,400 motions.
The state has withdrawn about one-quarter of its detention motions, which shows prosecutors have sometimes been overzealous in exercising their newfound power to move for detention.
Mercer County has had 75 percent of detention motions granted during the first 11 months of 2017, far above the statewide average of 57.8 percent, statistics show.
“Mercer County has among the highest detention percentage in the state,” Onofri said. “I am proud of that.”
When prosecutors file motions for detention, they must do so on at least one of the following three grounds: The prosecution must consider the defendant to be too dangerous for release, or it must consider the defendant to be a flight risk, or it must consider the defendant to be at high risk of tampering with witnesses in the case.
Despite those strict parameters for when detention is appropriate, Furlong, the criminal defense attorney, said he has seen prosecutors abuse their power by moving to keep defendants of the lowest risk locked up “for no good reason.”
“I’ve seen jobs lost, apartments vacated, kids cry, all because dad couldn’t make bail on a charge that was thin on its face and unlikely to carry jail time in the future,” he said. “And I’ve seen the anger of police and prosecutors who can’t figure out why other defendants with lengthy records and a history of thumbing their noses at the system walk out the door on a promise to show up they have no intention of keeping.”
Defense attorney Christopher T. Campbell has also observed several risk-assessment decisions under bail reform that defied his expectations.
“I have had a few people released who I would not have thought would have ever been granted a manageable bail, and I have seen a few people detained who I would have expected to be granted a minimal bail a year ago,” he said.”
NEW JERSEY’S ‘UGLY BABY’
Bail bondsmen are fond of pointing out examples of when the criminal justice reform has resulted in inconsistent or incongruous detention decisions.
To be sure, Mercer County has had its fair share of questionable decisions.
Coson Taylor, 19, of Trenton, was arrested Nov. 19 as one of the alleged bandits involved the Oct. 19 robbery-turned-murder of Ewing rap artist Devon “Savy G” Green.
Taylor was previously arrested July 8 in Ewing in a case where cops charged him with unlawful possession of a handgun, possession of a weapon for an unlawful purpose and possession of marijuana under 50 grams.
Prosecutors in that weapons case initially wanted Taylor to be jailed but then changed their minds by withdrawing the detention motion July 12, according to court records, which show Taylor was released on non-monetary conditions that mandated him to be on the straight and narrow.
Even though Taylor was supposed to avoid new criminal offenses as a condition of his pretrial release, he got re-arrested Aug. 25 on new drug charges in Trenton.
Those counts were eventually downgraded to a disorderly persons offense, and that paved the way for Taylor to get into his most serious troubles when police arrested him last month on robbery charges for his alleged role in the plot that led to Green’s death.
With the way events played out, Taylor had to be arrested three times in 2017 before a judge finally ordered him to be detained.
Maurice Leonard Jr., 29, of Trenton, in October 2006 pleaded guilty to being complicit in a deadly November 2003 robbery that ended with triggerman Jaquan Austin shooting and killing 44-year-old Jose Arias on the streets of Trenton.
Leonard was sentenced to seven years of incarceration and since then has been re-arrested multiple times for various offenses.
After Trenton Police hammered Leonard on drug charges in March, prosecutors sought to have Leonard detained without bail, saying he was a flight risk and danger to the community.
Mercer County Superior Court Judge Peter Warshaw, however, denied the state’s motion for pretrial detention and allowed Leonard to be released on conditions that required him to commit no new criminal offenses.
Leonard, who was recently indicted on two counts of child endangerment after his toddler son brought drugs to school twice last year, failed to uphold the conditions of his release as Trenton cops re-arrested him in November on new drug charges that this time landed him on pretrial detention.
Justin Lepping, 27, of Sellersville, Pennsylvania, was ordered onto pretrial detention in January on sexual assault charges even though the state had no legal path of winning a conviction. Warshaw ordered Lepping’s release in March and the state on May 8 moved to administratively dismiss and dispose of all charges against Lepping due to “insufficient evidence.”
Kenneth D. Aita, Lepping’s attorney, told The Trentonian that his client was “wrongfully accused of those crimes” and “is considering all legal action against the responsible parties.”
Lepping, a married father with an infant child, “spent a number of months in jail, and it is a severe injustice when an innocent man even spends one day in jail,” Aita said. “That is not the way our criminal justice system is supposed to work. This investigation was tainted from the start.”
Michael Ganie, 53, of Trenton, was arrested on vehicular homicide charges in October and then released from custody on minimal non-monetary conditions after the Mercer County Prosecutor’s Office determined it was more appropriate for Ganie to be on the street than in jail.
Ganie is accused of being the driver who struck and killed 61-year-old Rodney Taylor in a Sept. 17 hit-and-run car accident near the McDonald’s restaurant off Chambers Street in Trenton.
Jihad “Jay” Jenks, 23, of Ewing, remains free on electronically monitored home detention as he awaits post-indictment arraignment on manslaughter charges.
He is accused of being the triggerman who shot and killed 26-year-old Tisheen Mack near the intersection of East State Street and Chambers Street in Trenton July 23. Initially the state wanted to detain Jenks but ultimately backed down and consented to Jenks being placed on house arrest.
Donald Ryland, a Mercer County corrections officer, was released on house arrest after being charged with the rape of two women. His attorneys have blasted the state’s lack of evidence and wondered why prosecutors are pursuing the case against the CO after an accuser identified someone other than Ryland as the perpetrator.
The new system has also led to the continued incarceration of popular New Jersey pothead Ed “NJ Weedman” Forchion.
He remains on pretrial detention after being acquitted of second-degree witness tampering in a trial where the jury could not reach a verdict on whether he was guilty or not guilty of third-degree witness tampering.
Forchion, who has a non-violent criminal history mostly involving drugs, calls bail reform the “Dred Scott Act,” referring to universally condemned U.S. Supreme Court case that centered on a black slave who unsuccessfully tried to sue for his freedom.
His criticism of the system intensified after the judiciary’s Public Safety Assessment recommended Forchion be released following his March arrest. Judge Warshaw disregarded the PSA and ordered Forchion onto pretrial detention, determining he was at risk of obstructing the criminal justice process through witness intimidation.
The marijuana legalization backer doesn’t believe reform fixed the inequities of the bail system that advocates railed against because they believed it unfairly targeted poor and minorities defendants.
If anything, Forchion said, it shifted more power toward prosecutors who decide whether to detain certain people for reasons he doesn’t believe fall under the “danger to society” buzzwords commonly cited at detention hearings.
The judiciary said it is still in the process of compiling statistics that will show the racial breakdown of defendants who have been detained since bail was scrapped.
Stats about how frequently people who were released skipped out on court are also being compiled.
It remains to be seen whether Forchion is right about there being a racial component to who is being detained and released.
What is clear, he said, is bail reform appears to have staying power.
“Everyone wants to call their ugly baby ‘beautiful,’” Forchion said of the politicians and power-brokers who helped bring bail reform to New Jersey. “The bail reform act is an ugly baby.”
Trentonian staff writers Isaac Avilucea and Sulaiman Abdur-Rahman contributed to this report.