Save Jail for the Dangerous

Our nation’s criminal justice system has failed us in many ways. Too often, we let violent criminals slip through the cracks while ensnaring nonviolent — and sometimes innocent — people behind bars. For New Jersey, this situation has played out most acutely in our bail system. Our system had allowed people who committed serious, violent crimes, and continued to pose a clear danger to the community, to be back on the streets while awaiting trial. At the same time, we kept those who committed minor, nonviolent offenses behind bars simply because they could not afford to pay a minimal bail amount. These people sat in jail for an average of 10 months while violent people, who could afford bail, walked free, further exemplifying how dysfunctional the system had become.

There are many stunning examples of the utter failure of our bail system. Perhaps there is none more striking than in July 2014, when a man from Hamilton, N.J., whom police arrested earlier that same month, invaded the home of a local family. He had been granted bail for a litany of charges, including multiple counts of first-degree robbery and had been released on bail despite his prior convictions. During the robbery, he and his accomplice pointed a gun at the family’s 8-month-old baby and threatened to put the child in the oven and turn it on if their demands were not met. That man should never have been released simply because he could afford to post bail.

In contrast, Iquan Small was charged with a nonviolent offense that was ultimately dismissed, yet he sat in jail for four months, lost his job, and his life opportunities — all because he could not afford bail. This is the real tragedy of a broken system that often leaves in its wake thousands of broken families created by low-income individuals, who are nonviolent, are no threat to our society, but are stuck in jail awaiting trial. These individuals often lose their jobs and their homes because of this.

Quite simply, the system did not work for the people it was supposed to protect. Our bail system failed two essential tests: it was not fair nor was it effective at protecting public safety. It is also fiscally irresponsible to jail the poor and let the violent free.

Some argued that this was not a crisis for our state. For me, however, every day that someone fears for their life on our streets is a crisis. For me, every day that someone is deprived of their liberty in a jail, simply because they lack the economic means, is a crisis. And I suspect that if it were your mother or father, son or daughter, or sister or brother who felt the graveness of that violent threat or sat unjustly in a jail cell that it would be a crisis for you, too.

This crisis is not unique to New Jersey. A 2007 study by the Bureau of Justice Statistics found that one-third of defendants released while awaiting trial were charged with one or more types of misconduct while on release. Nearly one-quarter had bench warrants for failing to appear in court. About one-sixth were arrested for a new offense, and more than half of these new arrests were for felonies.

How can we allow a system to exist that fails our poor, fails those who pose no risk to our communities, and fails our citizens?

I knew that we could do things differently in New Jersey. So I made a commitment to overhaul our bail system. During my State of the State address in 2012, I made a promise to a mother from Newark that we would help reduce the cycle of violence so prevalent in many of our urban communities. I made a promise that we would not allow the safety of our communities and the fair treatment of nonviolent and low-income offenders to continue to fall victim to politics and procrastination.

That’s why I proposed two common-sense reforms to refocus New Jersey’s bail system on whether a person poses a danger. These changes finally allow New Jersey courts to keep dangerous criminals off the streets and in jail until trial.

In August 2014, I signed a law that created non-monetary alternatives allowing for the release of low-level offenders while they wait for trial. And in November, our citizens voted to pass a bipartisan ballot initiative that I championed to amend our state constitution and allow judges to deny bail for dangerous offenders, keeping them behind bars while they wait for trial.

Our constitution had been interpreted to require judges to set bail amounts for all offenders — even if judges thought they should be kept behind bars because they were dangerous. Judges should be able to look at defendants’ criminal history, determine whether they pose a potential danger to other individuals — witnesses or innocent citizens on the streets — and then decide whether bail makes sense. The new amendment establishes a clear exception: When a court finds that no amount of bail, pretrial release conditions, or combination of the two would assure a defendant’s appearance, protect the safety of the community, or maintain the integrity of the criminal justice process, it can deny bail and hold the defendant. This change will stop preventable crimes from occurring by allowing a judge to use his or her common sense to decide whether someone deserves to be released or not. This long overdue measure will improve the quality of life in our communities by keeping the most violent criminals off the streets and ease the minds of citizens around the state.

The companion measure was a bill to reduce our state’s reliance on monetary bail. It created alternatives for individuals charged with nonviolent offenses. These alternatives include requiring that defendants remain in the custody and under the supervision of a designated guardian, maintain employment or stay enrolled in school, report periodically to a law enforcement officer, abide by curfews, undergo drug or mental health treatment, or submit to electronic monitoring. These restrictions will work to ensure a defendant returns to court without committing another crime. This law brings fairness to individuals who have not been charged with violent crimes and do not belong warehoused in jail awaiting trial because they cannot afford bail.

We also made other sensible changes to our state’s criminal justice system. In 2012, we expanded the mandatory drug court and treatment program to more counties. I have a simple view on drug policy: Drug addiction is a disease. It can happen to anyone, from any station in life. And it can be treated. Most importantly, every life is an individual gift from God and no life is disposable. We have an obligation to help people reclaim their lives. And since we have the tools to help those with this disease to save their own lives, we should use them.

We need to realize that when we keep drug addicts in jail, we ensure that they will be a constant drain on our society. Treatment not only costs us less in the short run, but in the long run it produces contributing members to our society — people who are employed and pay taxes, rather than being in jail and draining taxes. These individuals will have the opportunity to become a good father or mother, a good son or daughter, and contribute to the cultural fabric of our society. Requiring mandatory treatment instead of prison for nonviolent drug addicts is only one step — but an important one. Treatment is the path to saving lives. For as long as I am governor of New Jersey, treatment will be mandatory in our system.

In 2014, I also signed legislation to “ban the box” and end employment discrimination against people with criminal records. The Opportunity to Compete Act limits employers from conducting criminal background checks on job applicants until after a first interview has taken place. This will make a huge difference to people who have paid their debts to society and want to start their lives over again. They now have the opportunity to do that in our state.

I am proud that New Jersey led by example, showing it is possible to bring about true bipartisan progress and action. We passed real criminal justice reform in New Jersey. We can now release individuals accused of minor crimes without bail and ensure that those who pose the biggest risks — the severest threats to our community — are kept behind bars and off our streets.

For six years, I was the United States Attorney for New Jersey, the chief federal law enforcement officer of the state. No one can say that I am “soft on crime.” My career has been dedicated to trying to put bad people in prison. But we need to be smart about how we use prison.

I hope other states can build on New Jersey’s experience, ushering in bail reform to keep violent offenders off the streets and give nonviolent offenders a chance to reclaim their lives. These changes will ensure that decisions about whether to detain someone pretrial are made based on real public safety threats and not on whether a defendant is rich or poor. They enhance the administration of justice and keep our citizens safe.

As elected officials we are the only ones who can bring change to fix our criminal justice system. The individuals affected by the system cannot bring that change. Neither can prosecutors nor defense attorneys. And in some cases, not even judges can bring that change. These changes are serious and should be made by the people who are elected and therefore accountable to the people. It is our responsibility.

Elected officials across the country must act to make needed and long overdue changes to our criminal justice system. It is good for public safety. It is good for families. And it is good for New Jersey and the country.

Click here to read the entire book, Solutions: American Leaders Speak Out On Criminal Justice.