Criminal Justice Reform Done Right
In turning its bail system around, New Jersey has shown a capacity for evidence-based policy innovation that's likely to serve as a national model.
With its budget crises, underfunded pensions and sometimes-earned reputation for public corruption, it's not surprising that New Jersey doesn't usually come to mind as a modern exemplar for excellence in public administration. Sometimes I'm nostalgic for the early 1980s when, In a tourism promotion ad, then-Gov. Tom Kean declared, "New Jersey and you, perfect together" in his patrician cadence as he walked along a pristine beach.
People began to believe it, and there were things to feel good about then (I served as state treasurer from 1986 to 1990, and we had a AAA bond rating and well-funded public pension funds). And as beleaguered as the state's government may seem to some now, a recent report from the state's Administrative Office of the Courts is cause for the acknowledgement of New Jersey's capacity for innovation and its commitment to independent evaluation of untested, controversial policy change.
In 2014, then-Gov. Chris Christie signed criminal justice reform legislation that eliminated mandatory cash bail and established a pre-trial monitoring program. Two and a half years of planning and then two years of careful implementation have dramatically reduced pre-trial jail detention with no adverse effects on public safety or subsequent appearances in court, according to the study, which was conducted by a research collaborative that included researchers from the University of Chicago and Luminosity Inc.
Now, on any given day an estimated 6,000 individuals who have been accused of a crime are not in jail but are permitted to continue the conduct of their lives as they prepare for trial: working, being with their families, and receiving physical and behavioral health treatment.
The change in policy was fueled by a 2013 jail population analysis that showed that many nonviolent defendants - more than 1,500 on a given day -- were in custody for no other reason than they were unable to make $2,500, or in some cases as little as $500, in cash bail. The racial disparities were stark. Black defendants had longer stays awaiting trial or bail, and were disproportionately represented in jail populations. And the inability to make bail prompted many defendants to plead guilty in order to return to their community as fast as possible, thus affecting their employability and reputation. This analysis provided the evidence on which to build bipartisan agreement for passage of the reform law.
From a public-management perspective, the care with which the New Jersey court system has built the new system is noteworthy. Retaining ultimate judicial discretion, a risk-assessment tool was developed and tested using "objective, race- and gender-neutral risk factors" to assign each individual a score predicting the likelihood of re-offense and failure to appear. Subsequent evaluations found high correlation of the risk score with post-release behavior.
Also recognized was that increased staffing and post-release services were required to maintain rigor on the community side of the program. The pre-trial services program was established to move defendants through expedited risk assessment and a decision on whether they could be released, as well as oversight through periodic check-ins, electronic monitoring and drug testing.
The challenges facing New Jersey's reform program are ones that will not surprise students of public administration. The comprehensive system put in place in 2017 committed to significant staffing support for pre-trial services, and an increase to court filing fees was dedicated to that purpose. But the Administrative Office of the Courts' report starkly admits that despite tight management, the program has a structural deficit and will face a negative funding balance in 2020.
This problem illustrates the classic challenge of public budgeting: Downstream savings from early expenditures (in this case for drug testing, electronic monitoring and increased staffing) are not easily "harvested" to pay for those front-end investments. How New Jersey resolves this will be a test of its commitment to what will be no doubt be watched carefully as a national model.
The second challenge is a more fundamental one. While racial disparities in incarceration have been reduced, criminal-justice officials acknowledge they remain. Now that a strong research foundation has answered questions of public safety and effects on recidivism, testing of root causes should now be possible. This will require willingness to examine not only judicial risk-assessment patterns but also the role of race in previous criminal-offense history. For those not granted pre-trial release due to a higher risk score, how many were disadvantaged by prior experience in the criminal justice system that carried implicit bias?
So plenty of difficult questions remain to be answered. But if New Jersey's record thus far in this pioneering reform is any indication, it will continue to provide evidence-based tools for the criminal justice system nationwide.