NEW BRUNSWICK, NJ—All defendants arrested on a warrant in New Jersey are now subject to a new system involving them being given a "risk assessment" score, also known as a Public Safety Assessment (PSA) score.
Thanks to new state laws, and an amendment to the State Constitution approved by voters in 2014, New Jersey courts have moved towards a new model of deciding conditions of release and bail for criminal defendants.
In many cases, the new system replaces the old monetary bail system. Money bail is only allowed in rare cases now.
These changes also include establishing speedy trial timelines and mandate courts schedule a defendant's first appearance before a judge within 48 hours of their arrest.
That appearance leads to a pre-trial release decision based on a new risk assessment step in the arrestee's timeline.
A PSA score is an automated number derived from the weighing of nine factors.
The score consists of two numbers, between 1 and 6, one for the likelihood that the defendant may fail to appear for court, and another for the likelihood of new criminal activity.
There is also a binary "flag" for "elevated risk of new violent criminal activity."
New Jersey judges, during pretrial risk assessment hearings, now consider the defendant's PSA score along with other circumstances in determining whether to set bail, release a defendant with conditions, detain the defendant until their trial, or sign any other orders.
Standard conditions include showing up for court, not committing any offenses, and complying with regular reporting requirements to check in with the newly-established pre-trial services unit.
Additional conditions may include be electronic monitoring by way of an ankle bracelet, probation, drug therapy, avoiding contact with victims or certain locations, and refraining from excessive alcohol use or possessing dangerous weapons.
The initial hearing, which sometimes leads to a release, is conducted by a Municipal Court Judge such as Gary Price who has been handling the first phase of the process: Central Judicial Processing (CJP) hearings.
The hearings are held daily, even on weekends and holidays, at 2:30pm in Middlesex County. Defendants typically participate via video conference from the county jail.
If the Prosecutor's Offices files a motion seeking pretrial detention, the defendant's case is re-scheduled for a hearing before Judge Alberto Rivas, the Presiding Criminal Court Judge in Middlesex County, who ultimately decides the fate of prisoners that the prosecutor wants to detain.
Judge Glenn A. Grant, Acting Administrative Director of the New Jersey Courts, has been an advocate of the reform from its early stages.
Grant told New Brunswick Today that the goal is to move away from monetary bail altogether over time, and to release more individuals on their own recognisance with the "least restrictive" pretrial conditions.
The new Pretrial Services Unit, says Judge Grant, will help ensure the enforcement of any conditions a judge may order upon a defendant.
"It is the most substantial change [in this state] since the passage of the last Constitution in 1947."
Judge Grant says that empirical evidence shows that there are and have been "significant consequences" for defendants who remain in jail for extended periods of time, including loss of housing, employment and children.
"Bail disproprotionately impacts the poor and the minorities," says Judge Grant. "The idea here is to try to create safety and enhance justice overall to individuals facing criminal charge."
While there is currently proposed legislation that would limit this new pretrial risk assessment step to those charged with crimes in the first degree, currently all those arrested on a warrant after January 1, 2017, will be subject to this pretrial risk assessment.
The pending legislation, bills A3057 and A4098, aims to amend the law passed in 2014 and all defendants to be deemed "immediately bailable" by the courts. The bills also propose to extend the pretrial release decision made by a judge to be made within 96 hours, as opposed to 48.
The New Jersey Association of Counties also lost a bid to stop the reform from going into place by having it declared an unfunded mandate.
Sixty-one percent of New Jersey residents voted "Yes" to the public question that asked voters whether they would allow for the elminiation of the right to monetary bail and for the pretrial detention of defendants.
The Legislature passed a companion act in August 2014 detailing comphrensive changes to the state's bail reform under the title Public Law 2014, chapter 31 (P.L. 2014, c. 31) .
The changes include a total reworking of New Jersey's current bail system. The law applies to all individuals arrested on warrants after January 1, 2017, and makes it possible for judges to order defendants to be detained in jail pretrial without the right to bail.
SPEEDY TRIAL REFORM AND DEFINITIONS OF EXCLUDABLE TIME
For the first time in New Jersey history, there will be legislative definitions of time limits for defendants awaiting trial.
Before an indictment, the prosecution of defendants arrested on warrants on or after January 1 now have time limits in place that could lead to their release if the case takes too long.
Defendants now must be released after 90 days from the day they were admitted, as the law states. The law also says that, after an indictment, defendants will not remain in jail longer than 180 days before their trial starts.
Many experts say the speedy trial reform ensures earlier release for a number of people.
However, the new law also means that defendants can remain in jail pending indictment or trial for reasons thanks to an exception referred to as "excludable time."
Excludable time is defined in the new bail and speedy trial laws in New Jersey as a set of thirteen potential periods of time which can affect how time is computed with regard in scheduling a defendant's indictment or trial.
These new time limits extend a defendant's time awaiting trial, whether they are detained or have been released on their own recognizance.
Reasons for time delay include the "disqualification or recusal of a judge," or because it takes time to file a disposition for supervisory drug treatment, or the to provide for a medical examination ordered by a judge upon pretrial risk assessment.
Excludable time will also not count the time it takes for the prosecution to submit all relevant discovery as it comes available or for the time it takes to file any pretrial motions.
The law states that a court could also extend the date of an individual's trial as long as "the court finds good cause for delay." This is the full list as written in P.L. 2014, chapter 31:
C.2A:162-22 Eligible defendant subject to pretrial detention, release; conditions.
(1) (a) The eligible defendant shall not remain detained in jail for more than 90 days, not counting excludable time for reasonable delays as set forth in subsection b. of this section, prior to the return of an indictment.
b. (1) The following periods shall be excluded in computing the time in which a case shall be indicted or tried:
(a) The time resulting from an examination and hearing on competency and the period during which the eligible defendant is incompetent to stand trial or incapacitated;
(b) The time from the filing to the disposition of an eligible defendant’s application for supervisory treatment pursuant to N.J.S.2C:36A-1 or N.J.S.2C:43-12 et seq., special probation pursuant to N.J.S.2C:35-14, drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1, or other pretrial treatment or supervisory program;
(c) The time from the filing to the final disposition of a motion made before trial by the prosecutor or the eligible defendant;
(d) The time resulting from a continuance granted, in the court’s discretion, at the eligible defendant’s request or at the request of both the eligible defendant and the prosecutor;
(e) The time resulting from the detention of an eligible defendant in another jurisdiction provided the prosecutor has been diligent and has made reasonable efforts to obtain the eligible defendant’s presence;
(f) The time resulting from exceptional circumstances including, but not limited to, a natural disaster, the unavoidable unavailability of an eligible defendant, material witness or other evidence, when there is a reasonable expectation that the eligible defendant, witness or evidence will become available in the near future;
(g) On motion of the prosecutor, the delay resulting when the court finds that the case is complex due to the number of defendants or the nature of the prosecution;
(h) The time resulting from a severance of codefendants when that severance permits only one trial to commence within the time period for trial set forth in this section;
(i) The time resulting from an eligible defendant’s failure to appear for a court proceeding;
(j) The time resulting from a disqualification or recusal of a judge;
(k) The time resulting from a failure by the eligible defendant to provide timely and complete discovery;
(l) The time for other periods of delay not specifically enumerated if the court finds good cause for the delay; and
(m) Any other time otherwise required by statute.
(2) The failure by the prosecutor to provide timely and complete discovery shall not be considered excludable time unless the discovery only became available after the time set for discovery.
"New Jersey’s bail reform must aim at effectuating the right of the accused to a speedy trial — a duty that any fair criminal justice system owes a defendant," says Jorge Contesse, Assistant Professor of Law at Rutgers University. "The public also has an interest in timely resolution of cases, as significant fiscal resources go to funding pre-trial detention.
"By setting limits to pre-trial detention with excludable times, NJ tries to articulate a rational administration of the criminal justice. We have to see, however, how the multiple agencies involved in the system are capable of carrying out the goals set forth by the new legislation."
AUTOMATION OF CRIME DATA AND PRETRIAL RISK ASSESSMENT
On March 10, 2014, before the criminal justice reform became law, a committee of members of the state's judiciary and law enforcement, led by Judge Glenn A. Grant and Chief Justice Stuart A. Rabner, published a Final Report with their reccomendations and findings concerning New Jersey's bail system and other criminal justice procedures.
The report refers to a March 2013 survey, conducted by expert Dr. Marie VonNostrand, showed that New Jersey's county jail population on October 3, 2012 had the following statistics of the 13,003 inmates housed at the time:
73% of the inmates (9,492) were awaiting trial;
39% (5,006) of inmates were eligible to be released on bail but remained in jail because they lacked the financial resources to post bail, and;
12% (1,547) remained in jail due to their inability to post a bail of $2,500 or less
According to a 2014 presentation by Luminosity Solutions on pretrial criminal justice procedures, an estimated 12 million arrests happen every year, and 11.6 million individuals are admitted to local jails, which house about 750,000 inmates each day, costing local taxpayers a total of about $8,000,000 each year.
Over 60% of inmates in county jails, according to Dr. VonNostrand, are awaiting trial.
New Jersey is also taking this time to update its automation and data integration through the LiveScan fingerprinting system and a number of other data sources.
"New Jersey will be the first state to have a fully automated risk assessment integrated into its criminal processing system," says Judge Grant. "We [are bringing] millions of records into our system."
For instance, no longer will a judge be required to answer the phone to authorize the execution of a warrant. Police officers will now be able to electronically sign a warrant in the new automated database upon the phone confirmation of a designated court official.
A press release from the NJ Office of the Attorney General states that police will be given an online training for how to operate under the new law. It also states that there will be a formation of a Criminal Justice Advisory Group to oversee the implementation of the reform.
The press release reads, "All decisions regarding whether to charge by warrant or summons must be approved by an assistant prosecutor, deputy attorney general, or designated police supervisor."
"The directive sets up a system for such personnel to be available 24/7 to offer real-time legal advice and charging approvals. By allowing prosecutors to designate a supervisory police officer, rather than an assistant prosecutor, to make initial screening decisions after hours, the directive provides for cost savings."
Police will also be able to view an individual's PSA score electronically upon submitting a reason for probable cause.
WHAT IS YOUR PSA SCORE?
PSA scores aim to provide an objective-based analysis of a defendant's prior criminal history.
Its functions is to objectively inform judges of a defendant's likelihood of appearing in court, their risk to public safety and their for a repeat offense.
While there are several models available throughout the nation, New Jersey is adopting a computerized risk assessment tool developed by the Laurie and John Arnold Foundation, a nonprofit dedicated to making criminal justice procedures fairer and simpler for all.
"The ideal is that it's less biased than individual judges," says Ellen Goodman, Professor of Law at Rutgers University of the automated risk assessment.
"It's better than what we've had in the past." Goodman, who specializes in data ethics and information law, says that there is increasing concern about bias in these risk scores both pretrial and sentencing in the law community.
The PSA score takes nine factors into account. The factors include: the age of the defendant at current arrest, whether the current offense is violent, what the pending charge is at the time of the offense.
The are derived from many of the state's criminal data sources involving: any prior misdemeanor conviction, any prior felony conviction, any prior violent conviction, any prior failure to appear within the past two years, a prior failure to appear older than two years, and for any prior sentence to incarceration.
Matt Alsdorf, Vice President of Criminal Justice at the Laurie John Arnold Foundation explains to New Brunswick Today, "There is a pretty steady correlation between age and crime."
Alsdorf says the PSA score was developed after years of research into criminal justice processes across the nation.
"How old you are when you're first arrested is strongly correlated with race," says Alsdorf referencing some practices of law enforcement across the nation.
"A lot of the times, particularly with minorities and younger populations, individuals get arrested but wind up having their charges dropped."
That is why, Alsdorf says, the PSA score does not take into account prior arrests, only prior convictions. Alsdorf also says that the PSA score does not include race or any other subjective factors.
"It's an incredibly ambitious and significant set of reforms they're undertaking," says Alsdorf, who adds New Jersey has prepared for some "incredible technological advancements."
According to the new bail and speedy trial reform law, pretrial risk assessment judges are still allowed to take into consideration a large set of factors collected about an individual, including some of which could be considered subjective, such as:
- the eligible defendant’s character
- physical and mental condition
- family ties
- financial resources
- length of residence in the community
- community ties
- past conduct
- history relating to drug or alcohol abuse
- criminal history
- record of appearances at court proceedings.
ProPublica's Julia Angwin published an investigative report in May 2016 describing several of her findings involving "machine bias" resulting from automated risk assessment scores in criminal sentencing.
Angwin and her team obtained risk assessment scores from Broward County, Florida in 2013 and 2014 and investigated machine bias, of which U.S. Attorney Eric Holder had warned:
In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.
The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
White defendants were mislabeled as low risk more often than black defendants.
Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind.
The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis.
Northpointe’s core product is a set of scores derived from 137 questions that are either answered by defendants or pulled from criminal records. Race is not one of the questions. The survey asks defendants such things as: “Was one of your parents ever sent to jail or prison?” “How many of your friends/acquaintances are taking drugs illegally?” and “How often did you get in fights while at school?” The questionnaire also asks people to agree or disagree with statements such as “A hungry person has a right to steal” and “If people make me angry or lose my temper, I can be dangerous.”
Joe Benedict, a top-rated criminal defense attorney based in New Brunswick, explains that he expects a lot of good to come from the reform.
"There is going to be substantial benefits from the bail reforms in the sense that I think more people will be released," Benedict told NBT.
However, "We will have to and see about the actual implications of the changes," he noted.