second chances

New Jersey No-Bail System Eyed By New York Leaders Reckons With Bias Risk

A Bronx resident advocates for modifying bail reform during a January town hall hosted by Bronx District Attorney Darcel Clark.
A Bronx resident advocates for modifying bail reform during a January town hall hosted by Bronx District Attorney Darcel Clark. Photo: Ben Fractenberg/THE CITY

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Seeking to adjust a bail overhaul hailed by reformers but deemed unworkable by many judges and law enforcers, Gov. Andrew Cuomo didn’t have to look far for a model — just across the Hudson River to New Jersey.

“That would be, I think, the best system in the country,” Cuomo said last week, as he vowed to block any state budget deal that does not revisit sweeping changes made last year in New York.

Three years ago, New Jersey lawmakers virtually eliminated bail and began using a public safety assessment score that judges rely on to figure out whether they should release or detain a defendant. They spring the vast majority.

The move was hailed at the time by criminal justice activists as a way to drastically reduce the number of people behind bars, while critics predicted it would cause a spike in crime.

Two annual reviews so far by the state’s court system found that by most measures, the New Jersey overhaul has been a resounding success.

Even while the number of inmates in state jails drastically dropped and thousands more awaited trial as free men and women, defendants were no less likely to show up for their court dates than before the law changed, New Jersey’s Administrative Office of the Courts said in April.

But one major issue remains: Black men made up 54% of the state’s jail population in 2018, a share unchanged from 2012, despite New Jersey’s population being about 15% black, according to the U.S. Census Bureau.

Some criminal justice activists blame perpetuation of the disparity on the Public Safety Assessment judges use to help decide when to order someone jailed while awaiting trial. The assessment relies on nine aspects of a defendant’s history to predict their odds of returning to court and staying out of trouble while awaiting trial.

Concerns about potential bias in the measures spurred a leading national group focused on pretrial reforms to rescind its support last month for New Jersey’s no-bail system. The Pretrial Justice Institute had originally pressed for New Jersey’s reforms, noting that about 40% of people in jail were there because they couldn’t pay modest bail.

In a statement posted to its website, the institute said it had “heard but did not fully appreciate” opposition to pretrial risk assessment tools.

“Despite these valid concerns, we were too focused on fighting the damaging status quo to really listen,” the institute said.

“Regardless of their science, brand, or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices. Use of that data then deepens the inequity.”

At a Crossroads

New York lawmakers are at a crossroads on how to move forward with the state’s bail overhaul, little more than two months since it took effect.

Judges in New York currently have zero discretion in deciding whether to release or jail a defendant in most misdemeanor and non-violent felony cases. The system was adopted as part of last year’s state budget after Democrats won control of both legislative houses.

Law enforcement groups, including the NYPD, are pressing to revamp the reforms, and to give judges some decision-making power when they deem a defendant a danger to public safety or a risk of failing to return to court.

A move to the New Jersey system is supported by New York’s Chief Judge Janet DiFiore, all five of the city’s district attorneys and Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) — all bolstered by a recent poll showing slipping support for the New York model.

Governor Andrew Cuomo stands with Senate Majority Leader Andrea-Stewart-Cousins and Assembly Speaker Carl Heastie before delivering his State of the State address in Albany, Jan. 8, 2020.
Gov. Andrew Cuomo stands between Senate Majority Leader Andrea-Stewart-Cousins and Assembly Speaker Carl Heastie before delivering his State of the State address in Albany, Jan. 8, 2020. Photo: Ben Fractenberg/THE CITY

State Assembly Speaker Carl Heastie (D-The Bronx) has held out, saying any changes to New York’s reforms would be premature.

“When I get the relevant statistics and we’re able [to] analyze it and discuss it as a conference, then I’ll have a response,” he said last week. “But until then, I don’t have anything to add on this bail discussion.”

Heastie will join with Stewart-Cousins and Cuomo to broker the state budget due April 1.

The push for revision has exposed a bitter rift among Albany Democrats, with Assemblymember Tremaine Wright (D-Brooklyn) calling any modifications “a Jim Crow-style rollback.”

Baked-in Biases

Activists in New Jersey cautioned against a “cut and paste” effort to replicate the Garden State’s bail system.

One major difference, they point out, is that while New York elects its prosecutors and judges, their New Jersey counterparts are appointed by the governor.

“It insulates people a little from the political pressures that sometimes accompany these positions,” said Alexander Shalom, senior supervising attorney for the American Civil Liberties Union of New Jersey.

He urged New York lawmakers to wait before considering New Jersey’s model.

“You can’t make big cultural changes, like changes to the money bail system, and expect immediate results,” he said. “Like saying if we don’t have the perfect system, we will tinker with the system. That’s just not a good way to make policy. It should be driven by data and a real analysis.”

Another key difference in New Jersey is that judges can toss a defendant in jail if that person is rearrested for a new charge or fails to appear in court. That happened more than 1,000 times in 2018. New York judges can only revoke a defendant’s release when the person “willfully” doesn’t show up for court, violates an order of protection or is rearrested on a new felony charge.

New Jersey’s public safety assessment tool uses an algorithm that evaluates whether a defendant is likely to return to court or commit a new crime while awaiting trial. The screening is performed after a defendant is arrested, and the report is given to cops and judges handling the case.

The process is done electronically and takes about 15 minutes, according to Judge Glenn Grant, who spearheaded the change.

A 2016 ProPublica investigation highlighted racial biases baked into software used across the nation to predict defendants’ odds of committing new crimes, though it didn’t specifically look at the New Jersey system.

The Pretrial Justice Institute and many activist groups contend that risk assessments are inherently unfair to people of color because the formulas take into account prior interactions with law enforcement, among other factors.

“Fundamentally, they are programmed to codify past behavior that we have already acknowledged have caused mass incarceration that have had a disproportionate impact on blacks and Latinos,” said Nicole Triplett, policy counsel of the New York Civil Liberties Union.

Watching Judges

Some New York lawmakers maintain it’s possible to build in protections against racial bias.

State Sen. Jim Gaughran (D-Suffolk County) told a group of bail reform activists that, in addition to other changes, New York is looking to closely monitor judges and grade them based on how their bail decisions impact people of color. Judges found to disproportionately require bail for any particular race people could be tossed from the bench.

The Essex County Courthouse in Newark, New Jersey.
The Essex County Courthouse in Newark, New Jersey. Photo: Allison Peltzman/Shutterstock

Defenders of the new New York system say lawmakers should be looking to create ways to assist defendants, especially those with a long history of getting locked up at notorious Rikers Island.

“There’s no conversation in the state legislature about meeting people’s needs in the community,” said Nick Encalada-Malinowski, civil rights campaign director for VOCAL-NY, who noted many defendants’ needs range from housing to drug rehab to career training.

“The conversation is just about putting people back in jail.”

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