The Price of Freedom: An Analysis of Cash Bail in the United States and the New Jersey Alternative

Abstract

For over two hundred years, the United States has employed a cash bail system throughout its state and federal courts. Under this approach to pretrial release, criminal defendants are required to post money to obtain their freedom while they await the resolution of their cases. As a result, poor defendants often await trial behind bars while similarly situated wealthy defendants are able to secure their release. For a defendant who cannot afford his bail amount, research has shown that the effects of pretrial detention extend far beyond his immediate incarceration experience, often negatively impacting the outcome of his case, his future earning potential, emotional well-being, familial stability, and future criminal activity. In addition, pretrial detention due to the inability to post bail is a major contributor to prison overcrowding and is extremely costly to local and federal governments.

In light of these issues and the resulting policy debate over alternatives to cash bail, this thesis reviews the history of the cash bail system in the United States, and then focuses particularly on both the passage and impact of New Jersey’s most recent bail reform legislation, the Criminal Justice Reform Act, which took effect on January 1, 2017. The Act constitutes the boldest, most comprehensive statewide bail reform in American history. Through this statute and an accompanying constitutional amendment, New Jersey functionally eliminates money from its bail system and replaces it with non- monetary release conditions. The new law also mandates the use of a pretrial risk assessment tool, which uses criminal history data to predict a defendant’s likelihood of flight or new criminal activity. This objective assessment informs a judge’s pretrial detention decision, helping the judge to be more consistent and objective. Lastly, under very specific circumstances, the Act permits a judge to order preventative detention, denying a particularly dangerous or risky defendant any possibility of release.

To analyze New Jersey’s new bail system, this thesis relies on reports issued by the New Jersey Judiciary, crime data released by the New Jersey State Police, newspapers, and personal interviews with important officials in the New Jersey criminal justice system. From this research, the thesis identifies the initial achievements of the reform, such as the dramatic decrease in the state’s pretrial detainee population, as well as the challenges that New Jersey still confronts, such as securing an adequate funding source and addressing the dramatic inter-county variation in release and detention rates across the state.

In addition to the reform’s achievements and challenges, this thesis also identifies specific conditions and governmental structures present in New Jersey that either facilitated the passage of the reform or aided the successful implementation of the new system. New Jersey’s consolidated statewide public defender system and its unified law enforcement structure under the Attorney General both played crucial roles in the success of the bail reform effort. Identifying the conditions in New Jersey that promoted passage and implementation of the legislation is useful for assessing the viability and practicality of replicating New Jersey’s unique bail system in other states. By evaluating the achievements, challenges, and structural components of New Jersey’s bail reform, this thesis can inform ongoing efforts to establish fairer and freer pretrial justice systems nationwide.