Is Bail Reform Reducing Jail Populations to the Greatest Extent Possible?

Bail Reform went into effect in New Jersey almost two years ago.  Its stated goals included, among other things, a reduction in jail populations.  At the heart of this issue was the implementation of a screening tool known as a Public Safety Assessment, or “PSA”, which is prepared by Pre-Trial Services.  The PSA is basically a scoresheet that evaluates each defendant to determine what, if any, terms of pre-trial release should be imposed by the Court, or if the defendant should be remanded to a county jail.  The PSA is used on a State-wide basis.  In other words, it is used in all counties for all defendants in the Superior Court.

I have always believed that the PSA is problematic because of its “one-size-fits-all” approach to the State’s defendant population.  I also believe that this concern is supported by the fact that the algorithm underlying the PSA does not account for all individual variations that may exist between and among all defendants.  Given that we have now had some experience with bail reform and the PSA, this may be a good time to take a hard look at the new pre-trial release procedures to see how well they work within the larger context of our State’s criminal justice system.

We can all agree that every jurisdiction wants to reduce its jail population.  Toward that end, New Jersey has not been the only state to adopt some sort of bail reform.  States all over the country are doing the same thing for the same reasons.  This is not surprising given the national experience over the last several decades.  We know that inmate populations have been rising nationally for decades.  In 1970, daily local jail populations were at about 157,000 inmates.  By 2015, that number exceeded 700,000.  Close to 11,000,000 people are  admitted into jails annually in this country.  Given these staggering numbers, coupled with the costs associated with building and maintaining jails as well as the societal costs stemming from incarceration, we need to constantly ask if enough is being done to reduce our jail populations to the lowest possible levels.

One jurisdiction asking these questions is Lucas County, Ohio, which includes Toledo.  The county has implemented a “Population Review Team” which is an interagency group tasked with reducing or eliminating jail time for new or low-level offenders, with an eye toward easing the burden on the county’s overcrowded jail system.  The team, which includes corrections officers, defense attorneys, the city prosecutor and the county public defender, meets weekly to review jail cases.  They review inmate records to determine whether bail can be reduced, charges can be downgraded, or an inmate can be placed on electronic monitoring.  Given their background, the inmate may be granted credit for time served and set free, or have their case placed on a expedited track.  Some special attention is paid to low-level drug users and individuals with mental health issues.  Obviously, those charged with violent or other serious crimes remain incarcerated.  The team seeks to separate this group of offenders from those who don’t need to be, or don’t belong, in jail.

Granted, this approach may only be viable in smaller jail systems.  (The Lucas County jail has a capacity for only 346 inmates.)  What is, however, striking about the Population Review Team is that is examines inmates on a targeted, individual level, as opposed to a system that establishes broad rules and procedures designed to address a statewide jail population, which is essentially what New Jersey has done.  Perhaps New Jersey should take a look at the Lucas County model which focuses more on the needs and characteristics of individual defendants to see what if anything can be adopted to our local situation with an eye toward improving our current approach to pre-trial release.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents individuals with criminal charges in the New Jersey Superior Court in all counties, all New Jersey municipal courts, the New York State criminal courts in Manhattan and Brooklyn, and the federal district courts in New Jersey and New York City.



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