In states across the country, a cash bail system can mean that poor defendants remain in jail while wealthier defendants go free. But a model to address those disparities began this year in New Jersey, which has launched some of the most comprehensive bail reforms in the nation. PBS NewsHour Weekend‘s Megan Thompson reports in this Chasing the Dream segment.
MUSTAFA WILLIS: Yes, coming from the store, on the way to my grandmother’s house…
MEGAN THOMPSON: One evening in 2010, Mustafa Willis was walking to visit his grandmother in Newark, New Jersey, when police stopped him on the street.
MUSTAFA WILLIS: Put your hands up. I put my hands up, he said, don’t move. Checked me, placed me under arrest, the sergeant said, tell me whose gun this is and we’ll let you go. I said, officer, I don’t know nothing about no gun, I’m not from around here.
MEGAN THOMPSON: He was arrested and for having a stolen gun, a charge he denied.
He says bail was set at $50,000, which meant he had to come up with $5,000 – or 10% – for a bail bond, in order to go free. But at the time, he was making only about $1,200 a month after taxes as a truck driver’s assistant.
MEGAN THOMPSON: Could you afford to pay $5,000 to get out of jail?
MUSTAFA WILLIS: No, ma’am.
MEGAN THOMPSON: How long did you sit in jail for?
MUSTAFA WILLIS: Three months.
MEGAN THOMPSON: During those three months, Willis lost his job, missed the funeral of a cousin, and developed high blood pressure, he says, from the stress of being in jail.
MUSTAFA WILLIS: I just wanted to be home with my family. Like that was really it. Like it was just hell for me.
MEGAN THOMPSON: Willis got out after the judge reduced his bail. Eventually, prosecutors dropped the charges but Willis and his family still had to pay back the $3000 bond.
JAMES LUMFORD: Bail was originally set for, I think $200,000 or $250,000.
MEGAN THOMPSON: In 2015, James Lumford spent eight months in jail in Newark, because he couldn’t make bail, after, he says, he was falsely accused of armed robbery.
JAMES LUMFORD: Being locked up into that situation, you never know what you can get into in there, an altercation can happen at any point in time.
MEGAN THOMPSON: While he was in jail, his partner and her children were evicted from their apartment. Desperate to get out and support his family, he pled guilty to a crime he says he didn’t commit. He now works as a plumber but says other jobs may be hard to get.
JAMES LUMFORD: A decent paying job – I can’t pass a background check, because that’s gonna pop up.
MEGAN THOMPSON: Across New Jersey, nearly 40 percent of the people held in jail were there simply because they could not afford bail, according to a 2013 study. Across the nation, black and latino defendants are often the least able to pay.
JUDGE ERNEST CAPOSELA: I found probable cause, it’s provable…
MEGAN THOMPSON: At the same time, potentially violent people who had money easily posted bail and walked free, says New Jersey Superior Court Judge Ernest Caposela. Because the state constitution used to require bail for most cases, Caposela says judges did something problematic – setting bail extremely high in order to keep some defendants behind bars.
JUDGE ERNEST CAPOSELA: So, you know, half a million dollar bail. A million dollar bail. If I set a bail on you, and I know you can’t make it, that’s an excessive bail. That violates the Eighth Amendment of the Constitution. It violates the presumption of innocence. It wasn’t in my opinion an honest, intelligent, system.
MEGAN THOMPSON: In 2014, spurred by judges and criminal justice reform advocates, New Jersey changed its pretrial justice system in two ways. One, voters approved an amendment to the state constitution giving judges the power to detain without bail anyone who poses a threat or a flight risk.
Two, the New Jersey state legislature passed a bill to abolish cash bail for most nonviolent defendants. It also set up a new system to monitor released defendants, and required prosecutors to try cases more quickly.
The bill passed with bipartisan support, was signed by Republican Governor Chris Christie, a former federal prosecutor, and went into effect in January.
GOVERNOR CHRIS CHRISTIE: We now have a criminal justice system that will permit our judges to keep the truly dangerous sociopath behind bars, will release those non-violent offenders who have only remained in jail because they are poor.
JUDGE ERNEST CAPOSELA: This is a detention hearing. Used to be called a bail hearing, but we have a new system now.
MEGAN THOMPSON: Judge Caposela presides over the Passaic County Court in Paterson, New Jersey’s third-largest city. It’s a low income area with one of the state’s highest crime rates.
In the new system Caposela helped devise, judges and attorneys now rely on a “public safety assessment,” or PSA, to predict the risk a defendant poses. A computer algorithm evaluates nine risk factors – like whether defendants have prior violent convictions or failures to appear in court. John Harrison oversees the new pretrial services program for Passaic County.
JOHN HARRISON: If someone fails to appear in the last two years, it goes up.
Defendants receive two scores, from one to six…. She results as a 5, 4.
MEGAN THOMPSON: The scores predict the likelihood the defendant will fail to appear and commit new criminal activity. The lower the scores, the better the chance the PSA will recommend the defendant be released.
BAILIFF: All rise.
MEGAN THOMPSON: Later, when the defendant appears in county court- in this case by video from jail- the judge uses the PSA score to decide how she’ll be monitored after release.
JUDGE JOHN MEOLA: You have to report one time per week to pretrial services. One week by phone, one week in person.
MEGAN THOMPSON: If there’s a serious crime or a high PSA score, the prosecutor can file a motion to detain. That triggers a second hearing, held within about a week. Lawyers present evidence arguing whether the defendant should be jailed or let go.
PROSECUTOR: There was a pair of scissors covered with what appeared to be blood…
JUDGE ERNEST CAPOSELA: This man, charged with aggravated manslaughter, had a high PSA score of 5 and 5, and he’s flagged as being prone to violence.
JUDGE ERNEST CAPOSELA: So for all those reasons, he will be remained detained.
MEGAN THOMPSON: This man was accused of drug possession and has a history of other charges and failing to appear. He got the highest PSA scores possible, 6 and 6. But Judge Caposela has the discretion to weigh other factors.
JUDGE CAPOSELA: I’m also sensitive to the fact that he’s working and he’s supporting four children. So, I am satisfied that I will release him on level three, condition of your lease though, and I very rarely do this, you have to be employed. Alright? We’re going to monitor you now. You alright?
MEGAN THOMPSON: He will have to check in regularly with the court before his trial, part of the new monitoring system.
JUDGE CAPOSELA: Don’t let me down, Mr. Lighty.
JAMES LIGHTY: I won’t.
MEGAN THOMPSON: The most high-risk defendants get electronic bracelets. Defendants also receive phone calls, texts, and emails to remind them of court dates.
Before, under the old system, did you have the option to just to waive bail?
JUDGE ERNEST CAPOSELA: The problem with that was we didn’t have monitoring back then. So now when we do it, there’s a great comfort level because we’re gonna be monitoring those folks.
MEGAN THOMPSON: Since New Jersey ended cash bail, 17,550 defendants were charged with state crimes during the first five months of this year. Almost three quarters were released with monitoring. Close to 10 percent were released with no monitoring, and 13 percent were detained in jail. The state jail population has dropped by 19 percent since the start of the year, due to bail reform and also the fact that police are issuing more summonses with no arrest for some low level crimes.
DANIEL PALAZZO: I think the new system is working.
MEGAN THOMPSON: Passaic County public defender Daniel Palazzo says cases were harder to win when his low income clients sat in jail because they couldn’t post bail. The new speedy trial requirements weren’t in place, and prosecutors had leverage to obtain a guilty plea.
DANIEL PALAZZO: And the case just sits and it gets longer and longer and longer. And eventually, somebody says, “I give up. I want my freedom back.”
MEGAN THOMPSON: Just like what happened to James Lumford, who pled guilty to a crime he says he didn’t commit. But the new “no bail” system has vocal opponents. Bail bondsmen say it’s putting them out of business. And in May, after complaints from law enforcement, NJ state courts changed the PSA algorithm to automatically recommend detention for an expanded list of crimes, like gun possession and for defendants who reoffend while on release.
JOSEPH WALKER: I’ve not heard one chief say anything positive about this bail reform.
MEGAN THOMPSON: Joseph Walker is the police chief in Ringwood, a town in Passaic County.
JOSEPH WALKER: It treats offenders as if they were victims. They have no concern for the victims that we are sworn to protect and serve.
MEGAN THOMPSON: Walker says police officers are frustrated seeing suspects they arrest back out on the streets so soon.
JOSEPH WALKER: It’s a shame that we waste time arresting people over and over again, and they keep on releasing them. I mean, our officers feel like it’s a slap in the face because they’re working hard to do a good case, whether it be drugs, or car burglaries, or whatever. They get down there, and they get released. Then they’re out probably doing it again.
MEGAN THOMPSON: Under the old system, that person could’ve posted bail and also been released, right?
JOSEPH WALKER: Yeah, but if he was released and rearrested, the bail that he was released on would be revoked. So there’s a monetary penalty right off the bat. Now they don’t have to post anything. They don’t have to secure anything. They just walk free.
MEGAN THOMPSON: Walker points to news reports of freed suspects committing crimes, like the case of a released man who allegedly murdered his girlfriend before committing suicide. The state has no data yet on how many people have committed crimes while out before trial.
There have been instances of people who’ve gotten out under a bail reform and committed some very serious crimes.
JUDGE ERNEST CAPOSELA: That’s right.
MEGAN THOMPSON: Is there a risk to public safety?
JUDGE ERNEST CAPOSELA: The answer is no more than the monetary bail because, one, we’re monitoring these folks. And we hope that the public, once they start to understand it will, you know, approve of it and become accepting of it. We did not institute criminal justice reform to put bail bondsmen out of business and to clear out the jails. It was to respect the presumption of innocence, to design, you know, a system that was fair and honest.