Bail reform lets extremely dangerous individuals avoid pretrial detention
Migrants accused of beating NYPD officers arrested in Phoenix after being freed without bail
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It has been more than seven years since the implementation of the Criminal Justice Reform Act (CJRA) in the State of New Jersey. The CJRA essentially eliminated cash bail in the Garden State and replaced it with a risk-based assessment approach.
This system was touted as a model of fairness and equity that would permit the pre-trial detention of high-risk dangerous criminals, while preventing the "unnecessary" detention of low level, non-violent, indigent offenders who presented no genuine risk to the community but were previously subject to detention merely because they could not muster the cash to post bail.
At the core of this model is a legally mandated presumption of release that must be overcome by the prosecutor. It also includes the notion that safety assessment algorithms and judicial discretion can truly identify those criminals who present a continuing threat to society as opposed to those who, upon release, will comply with the mandates of the criminal justice system and the community. Not surprisingly, the implementation of the CJRA has proven problematic.
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I was practicing law as an assistant county prosecutor when the CJRA was rolled out with pomp and circumstance. In fact, I was the assistant prosecutor charged with implementing bail reform in our office. While the Office of the Attorney General fully supported this bipartisan-crafted legal cure-all, county prosecutors charged with implementing the CJRA daily were understandably skeptical.
Bail reform was popular in blue states and now they are backing off it. Red states need to learn from others' mistakes. (iStock)
While the cash bail system was not perfect, it did ensure that criminal defendants had a strong incentive to appear for future court proceedings and comply with all non-monetary release conditions.
Failure to play by the rules while on bail could not only result in incarceration, but also the forfeiture of the posted bail money. Local law enforcement officials feared that individuals who would have otherwise been detained, or released with the understanding that they could lose their bail money, would be released with far fewer consequences to fear. That skepticism has proven justified.
The CJRA was based on very laudable goals and ideals. Supporters saw it as a way to help non-violent offenders suffering with either addiction or mental health issues to remain out of jail. In some cases, this goal is indeed realized.
However, bail reform has also become a mechanism for some extremely dangerous individuals to avoid pretrial detention. As a result, bail reform has proven vulnerable to the realities of recidivism, as well as the political ramifications of rising crime rates and unsafe communities.
Case in point, some very influential New Jersey Democrats, including state Senate Budget Chair Paul Sarlo, have recognized bail reform as a political albatross and are now joining with Republicans who are looking to revisit the CJRA. While some bail reform advocates claim that rising crime rates in New Jersey and elsewhere are merely consistent with national trends, that argument is falling increasingly flat.
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One need only cast their gaze north to New York to understand the potential political consequences of being on the wrong side of the bail reform issue. New York instituted bail reform in 2019. Substantial backlash driven by subsequent spikes in crime forced lawmakers to negotiate three rollbacks to the bail reform laws in 2020, 2022 and 2023.
Many people continue to blame bail reform for rising crime rates, particularly in New York City. Lawmakers in the Empire State who have pushed back against revisiting bail reform risk being seen by voters as out of touch with average citizens and too heavily vested in soft-on-crime, Democrat-driven initiatives. Real world consequences of bail reform can readily translate into real world votes at the polls, and that is where change can start.
The criminal justice system should not, as New Jersey Governor Chris Christie once noted, be akin to a "debtors' prison" where those without means are incarcerated with little regard to the seriousness of their alleged offense.
By the same token, it should not be a revolving door for those who repeatedly violate the law and put others at risk. The simple fact of the matter is that some offenders saw monetary bail as nothing more than a cost of their criminal business.
Bail reform has unfortunately reduced that cost for these individuals to zero, and therefore effectively eliminated the incentive for them to avoid further criminal behavior. This must be fixed, and it appears that now may just be the time to do it.
David Gelman is a criminal defense attorney and former deputy district attorney.
