New Jersey has largely avoided the national tragedy that is unfolding in criminal justice systems around the United States due to pre-trial criminal justice reforms enacted in 2016 and the recent swift actions of Chief Justice Stuart Rabner and Administrative Office of the Courts (AOC) Acting Director Glenn A. Grant, J.A.D., in taking charge of detention practices around the state.

Since March 22, 2020, following Governor Murphy's March 9, 2020, joint declaration in Executive Order 103 of a State of Emergency and Public Health Emergency, the New Jersey courts have transitioned to technology-based presentments and hearings, and have temporarily released non-violent county jail inmates being held as a condition of probation for an indictable offense or because of a municipal court violation. The courts have taken up the holding and sanitation status of these and other prisoners on an emergent basis. See https://www.njcourts.gov/notices/2020/n200323a.pdf

Roll-Out of Criminal Justice Reform – a NJ Success

By almost every measure, New Jersey received high marks for its enactment, implementation and roll-out of Criminal Justice Reform (CJR) under the constitutional and statutory upgrades enacted by Garden State residents and their representatives that took effect Jan. 1, 2017. N.J. Const. Art. I, para. 11; N.J.S.A. 2A:162-15 to -26. CJR was designed to respect and balance, in the words of the AOC, the "individual's right to liberty with the State's responsibility of assuring community safety."

Having been in "the room where it happened" during my term as State Bar President as the roll-out process was discussed, debated and meticulously planned, I witnessed the history-making cooperation of all the branches of state government as they sought to ensure its successful implementation of constitutional safeguards. The intensity of the conversation carried with it Gene Kranz's Apollo 13 admonition: "Failure is not an option."

The CJR conversation in New Jersey derived from a March 2013 New Jersey jail population analysis, conducted by the Drug Policy Alliance, which found that 1,547 people—12% of the entire jail population—were held solely because they could not afford $2,500 or less in bail. See https://www.drugpolicy.org/sites/default/files/New_Jersey_Jail_Population_Analysis_March_2013.pdf  Those startling findings were further informed by data from the Laura and John Arnold Foundation's Arnold Venture philanthropic program, which showed that, despite a constitutional presumption of innocence, many defendants languished because they could not scrape together as little as a few hundred dollars while awaiting trial.

The crafters of the New Jersey's CJR roll-out were aware of the critics and pundits in the wings, including some in the bail bond industry who predicted doomsday-esque consequences on par with Chicken Little's fears. Those naysayers even tried to make their predictions come true and ensure CJR's demise, leaving no frontier untouched where they did not engage the battle to try to take the reforms down before they could be copied by other states. Having been part of the State Bar's effort to help champion the CJR package and work to ensure its successful implementation by members of the Bar, and having served on the team that help defend the law against multiple challenges and assault, including before the New Jersey Council on Local Mandates, we witnessed a spectacle where some desperately sought failure in order to maintain the status quo of money bail, the monetizing access to justice that ACLU-NJ aptly called the "purchase of the ability to avoid supervision."

CJR in New Jersey succeeded, largely due to the great efforts of the list of reform crafters, too long to fully list but including the AOC leadership, Elie Honig at the New Jersey Division of Criminal Justice and Law Enforcement, incoming State Bar President Kimberly Yonta, and Alex Shalom, Ed Barocas, Jeanne LoCicero and Rebecca Livengood at ACLU-NJ who gave it right back and continue the effort to this day. The success of the roll-out and the adaptive efforts engaged to meet any problems that arose is well-documented, including in the AOC's self-monitoring and annual reporting on the statistics. Importantly, these Reforms continue to provide adaptive mechanisms for dealing with the COVID-19 pandemic that has impacted jails and prisons around the country and, indeed, the world with much more debilitating effect.

The Garden State statistics have been overwhelmingly good since CJR was implemented under this "objective system," reinforcing the protections of our constitutional safeguards. Chief Justice Rabner summarized it thus: New Jersey's "Criminal Justice Reform has reduced the unnecessary detention of low-risk defendants, ensured community safety, upheld constitutional principles, and preserved the integrity of the criminal justice system." Last Fall, MDRC, a Ford Foundation collaboration with various federal agencies formerly known as Manpower Demonstration Research Corporation, released a sweeping analysis independently documenting the success of New Jersey's CJR roll-out over the past several years, especially the Public Safety Assessment (PSA) pretrial risk-assessment tool developed by Arnold Ventures that is a critical part of the Reform package.  See https://www.mdrc.org/sites/default/files/PSA_New_Jersey_Report_%231.pdf

New Jersey gave this approach the foothold it needed for nationwide implementation where, MRDC noted, there has previously been "little guidance from empirical evidence about how the reforms might affect outcomes." The results in New Jersey also showed there was no marked increase in those who were freed pending trial contributing to a feared increase in crime or lawlessness. This was largely supported by the AOC's 2018 year-end, in-house assessment and Report to the Governor and Legislature that relied on its quasi-independent 2014/2017 Research Project data, finding a 44% decrease in jail population and no "meaningful differences" in repeat offenders where 89.4% of charged defendants appeared for hearings after CJR pre-trial release in 2017 compared with 92.7% in 2014. Moreover, 13.7% of people released in New Jersey before trial were charged with a new indictable crime, or felony, compared with 12.7% in 2014, and, also in 2017, 13.2% of defendants were charged with a new disorderly persons offense, compared with 11.5% in 2014. See  https://njcourts.gov/courts/assets/criminal/2018cjrannual.pdf

A NY State of Mind: Criminal Justice Reform Without Risk Assessment

Despite that empirical evidence of success from New Jersey, New York chose to take a different approach to CJR that centered around no risk assessment (the PSA tool employed in New Jersey) and a lack of judicial discretion in release determinations, including the seriousness of the charged offense and the likelihood of repetition. Opponents in New York argued that risk assessment tools are inherently racist and discriminate based on socioeconomic status, something New Jersey has sought to control through imposition of controls over, as well as constant refinement of, data as well as a judicial check.

The result has been disappointing in the Empire State, including a New York Post pronouncement that results of "New York state's bail-reform initiative are in, and that early reviews rival those of the movie 'Cats.'" This followed the Washington Post assessment (obviously before the COVID-19 pandemic and federal response) that New York's design and implementation of CJR was, "the biggest disaster of the decade." Less than two months into the implementation of CJR, seven prosecutors, purporting to "represent more than half of the population" of New York State, penned a Feb. 25, 2020, op-ed in the New York Times—just as COVID-19 was beginning to advance with lethal consequences in New York's prisons—lamenting New York's CJR and seeking to "reform" the reform.

Stepping over the stark lack of transparency in criminal prosecutions that still exists, they inked the Gray Lady's op-ed page with the argument that the real problem with the effectiveness of CJR was a lack of judicial discretion (that was never actually present before):

The reforms … eliminated cash bail for most misdemeanors and nonviolent felonies, but continued to prohibit judges from holding defendants before trial if the judge considered them a danger to the community. Another reform requires prosecutors to turn over to defendants all information concerning their case under strict deadlines. The old law allowed prosecutors to withhold key evidence until the morning of trial, though many of our offices provided it much earlier in the process.

(Emphasis added.) See https://www.nytimes.com/2020/02/25/opinion/new-york-bail-reform.html New York criminal defense circles have critiqued as demonstrably false that assertion that "many of our offices provided it much earlier."

What This Means in the Age of COVID-19 in NY, NJ and Beyond

The sad reality is that the success or failure of CJR has powerful implications in the era of the coronavirus and COVID-19, which are now present throughout state and federal prisons. New Jersey has reported exposures and infections, most significantly impacting the frontline officers and jail staff who deserve commendation for being where they are under the circumstances.  See https://www.state.nj.us/corrections/pages/COVID19Updates.shtml (noting 16 "confirmed" state inmate deaths and 101 infections, including Residential Community Release Programs, as well as 427 infections among staff). Reports from New Jersey county facilities are more scattered, but indicated in excess of 34 positive confirmed inmates, in addition to nearly 100 staff in North Jersey alone).

In New York, the New York Times recently identified six state prisoners' confirmed COVID-19 deaths, four of which were at Sing Sing, and hundreds ill, stating that the "spread of the coronavirus may be slowing in New York, but the infection rate among inmates at some of the state's 52 prisons continues to spike." See https://www.nytimes.com/2020/04/22/nyregion/new-york-coronavirus-news-tracker.html Reports from New York City jails are even more bleak, with data indicating a near-omnipresence of coronavirus on Riker's Island that is a "public health disaster unfolding before our eyes," according to the head doctor there. This was made stark by the recent report of the death of an inmate, Raymond Rivera, a low-level violator held for months following his failure to appear before his parole officer on charges of stealing a motorcycle cover and a prior history of stealing a few bicycles. The situation is even more grave for guards and staff at Rikers, where news reports indicate hundreds of those on the frontline sick, and eight of them dead from COVID-19.

On a national front, the Federal Bureau of Prisons (BOP) reports there are 24 federal inmate deaths with 566 inmates and 342 BOP staff who have confirmed positive test results for COVID-19 nationwide, of which 248 inmates and 52 staff have recovered. See https://www.bop.gov/coronavirus/ In Ohio, 73% of all inmates have tested positive for COVID-19 at the Marion Correctional Institute in Marion County, according to the Ohio Department of Rehabilitation & Corrections. As of April 22, incarcerated people make up 20% of the Buckeye State's entire coronavirus cases, and 12 inmates have died. The testing results may skew high, according to the prison system, because the demographics of the selected prison populations include elderly inmates and those with pre-existing conditions. Data was not released for prison staff. See https://time.com/5825030/ohio-mass-testing-prisons-coronavirus-outbreaks/

The Disproportionate Impact on the LGBTQ Community

This portends significant impacts to the LGBTQ community, who come into disproportionate contact with the criminal justice system for various reasons.  See https://transequality.org/sites/default/files/docs/resources/TransgenderPeopleBehindBars.pdf  While the LGBTQ community is not monolithic or singularly defined by statistics, it includes a higher percentage of low-income, medically compromised and disenfranchised communities of color. In 2017, the American Journal of Public Health, analyzing nationwide data, found that 9.3% of men in the prison population identified as being gay, bi-sexual, or having engaged in a same-sex sexual experience prior to arriving at prison, a figure approximately three times higher than is found in the general population. See Am J Public Health. 2017 February; 107(2): 267–273, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5227944/. Thus, there will likely be pronounced effects on the LGBTQ community disproportionately represented behind bars.

Conclusion

First, all appreciation and thanks to the honorable frontline staff—officers, doctors, nurses, administrative personnel and others—who serve our society and protect us from dangerous offenders.

The reality we see taking shape in the data is that the embrace of Criminal Justice Reform, and the follow-up implementation of those measures, has a large effect on how its charged defendants as well as prison and jail populations grapple with coronavirus and COVID-19. Thousands of defendants avoided prison-based COVID-19 infection because their presumption of innocence and the pivot from money bail detention under CJR meant they were not physically in jail in New Jersey, and to some extent New York, at the start of the pandemic. Just how great an impact it will be is uncertain, but preliminary results indicate those states that engaged CJR with a careful balance of the protection of society versus the presumption of innocence will come out ahead by virtue of people who otherwise would have been detained without being held, and a presumption of release allowing for reduction in risk and harm to others.

Thomas Prol is a partner at Sills Cummis & Gross, PC. in Newark and the former president of the NJ State Bar Association. He writes a monthly column for the NJ Law Journal on LGBTQ issues. The opinions expressed herein are is own.