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Crime and Punishment
A New Approach to Criminal Justice Reform in the Garden State

In the public imagination, the most important elements of the criminal justice system is the trial, when a suspect faces charges, a jury renders a verdict, and a judge issues a sentence. Accordingly, many criminal justice reform initiatives have focused on changing what happens at that fateful time in the courtroom—specifically, softening sentencing guidelines so that convicts face less time behind bars.

But as we have noted before, much of the injustice in the American criminal justice system actually takes place in cases that never go to before a jury. Sentences have become more harsh the past decades in part because a growing share of suspects, especially indigent ones, are taking plea bargains—opting to accept a conviction instead of taking the risk of going to trial.

What accounts for the rise in guilty pleas? One cause is money bail. Prosecutors have more leverage over defendants who are waiting in jail for months or possibly years for their trial date than over those who can post bail and go free as they contest a charge. That’s why studies show that for people charged with similar crimes, those who are assigned bail are significantly more likely to be convicted.

Fortunately, some policymakers are starting to be attentive to this grey zone between when suspects are arrested and when they face trial. WBHM radio reports on a new initiative in New Jersey designed to ensure that poor defendants get fairer treatment by reducing bail usage:

More than half of the people being held in U.S. jails have not been convicted of a crime. In 2013, a study found that three-quarters of people in New Jersey county jails were waiting for their day in court. Forty percent could have walked out of jail, except they couldn’t afford to make bail. Starting next month, New Jersey hopes to drastically reduce its reliance on bail money. […]

Here’s how the experiment will work. Starting next month, judges in New Jersey will use what’s called a risk-assessment tool to help decide if a defendant is likely to flee or commit another crime. For high-risk defendants, judges can order them held without bail, like the federal system. On the other hand, judges are encouraged to release the majority of low-risk defendants without bail.

Lawmakers in other states should pay attention to this new program. There are probably tradeoffs involved—defendants released without bail might get arrested again, for example—but it’s also possible that the negative consequences are minimal, or that they are worth exchanging for a fairer system overall.

The key to criminal justice reform, for those interested in making the system fairer rather than picking high-profile political battles, is not police misconduct or even mandatory minimum sentences. It is changing the complex dynamics at play in the plea bargaining phase, when the vast majority of cases are decided. The goal should be to give defendants more of an opportunity to mount a defense, and, if they wish, get their day in court, rather than burying them with high bails and coercive pleas.

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  • Frank Natoli

    On the other hand, judges are encouraged to release the majority of low-risk defendants without bail.
    Does the legislation include feedback on what percentage of defendants thus released fail to appear for trial? And based on that percentage, altering or revoking the law? If there is no feedback provision, then the change in the law makes no sense whatsoever.

  • FriendlyGoat

    The fewer the opportunities for parties to make money on the business aspect of “justice”, the better the justice you will have.

  • f1b0nacc1

    While I find this idea appealing in principle (yes, it is depressing to have to agree with FG, but la stopped clock and all that…), I worry about the implementation. This ‘risk assessment’ seems to me likely to be the target of the SJWs at a fairly early point, since the lowest risk is likely to be NON-indigent, white defendents. How soon before we are told that in the interest of fairness, it will be applied to everyone?

    • Frank Natoli

      Did you notice that the word “violent” does not appear in the above article? As far as we the readers know, this proposed policy will not care about the violence the defendant is accused of: murder, rape, felony assault, whatever. Imagine being the survivor of such violence, or the family of someone murdered, and learning that the person you know is guilty has been released without bail.

      • f1b0nacc1

        Absolutely correct, but also consider what would happen when (not ‘if’, we both know that this will inevitably happen), individuals who are not only violent, but motivated to be dangerous (to potential witnesses, perhaps?) are released in this fashion.

        My real concern (and I believe this is linked to yours) is that in the name of ‘fairness’, any realistic standards for release will be dropped fairly early on, and the whole system of of bail (or for that matter, pre-trial detention as a whole) will simply fall apart. The BLM press release pretty much writes itself….

        • Frank Natoli

          Quite correct.
          Also consider that the most substantive result of “broken windows” policing was NOT bringing to justice those who broke windows but rather in an ACLU-proof manner apprehending many individuals who had jumped bail or who had failed to appear after receiving desk appearance tickets and gone on to commit more crime, not breaking windows, not jumping turnstiles, not squeeging windows, real crime, see above.
          “Broken windows” pulled these guys in. My Democrat dominated state of New Jersey plans to let these guys go.
          Real smart.

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