Mustafa Willis has seen the bail process in New Jersey up close. Willis was arrested in Newark in 2010 for unlawful possession of a firearm. The charges were later dropped. But he spent three months in jail before his family could scrape together $3,000 to bail him out.
“When you feel like you don’t have that kind of money, the only you gonna do is say I’ll take probation, so I can get home and get back to my job and get back to my family,” he says. “That’s the only thing. Because how the rules work, if you don’t bail out, you gonna sit there.”
Willis’s story is not unusual. More than half of the people being held in U.S. jails have not been convicted of a crime. In 2013, a study found that three-quarters of people in New Jersey county jails were waiting for their day in court. Forty percent could have walked out of jail, except they couldn’t afford to make bail. Starting next month, New Jersey hopes to drastically reduce its reliance on bail money.
“They sit in jail for months and sometimes years. They lose jobs, they lose housing, they can lose connections to families, they can lose their children,” says Roseanne Scotti, director of the Drug Policy Alliance of New Jersey, which helped fund that study.
“Most of these individuals are low-risk individuals who could be released pending trial,” she says. “But because we had a money-based system, and not a risk-based system, they sat there because they didn’t have money.”
According to Scotti, about 12 percent of the people who are in jail are there for less than $2,000.
“And that was something that shocked everyone: legislators, judges, people in the system, and the public,” she says.
Most reports about pre-trial detention just sit on the shelf, but this one prompted some serious soul-searching in New Jersey — and not just from liberal activists.
“Under these reforms, our justice system will be both more effective in protecting our communities from dangerous, violent repeat offenders,” Republican Gov. Chris Christie — a former federal prosecutor — said when signing the state’s bail reform law in 2014. “And fairer to those non-violent offenders who do not to deserve to sit in what has become the equivalent of debtors’ prison. Because they can’t afford to post the bail.”
New Jersey isn’t the first place to move away from bail. The federal government did it years ago. So did Washington, D.C. A handful of other states have tried various reforms. But New Jersey’s may be the most extensive, according to Insha Rahman at the Vera Institute of Justice.
“It was really, we’re going to, from top to bottom clean house and start over with something that essentially looks pretty new. So it’s sort of the great experiment,” Rahman says.
Here’s how the experiment will work. Starting next month, judges in New Jersey will use what’s called a risk-assessment tool to help decide if a defendant is likely to flee or commit another crime. For high-risk defendants, judges can order them held without bail, like the federal system. On the other hand, judges are encouraged to release the majority of low-risk defendants without bail.
“What has been seen in other jurisdictions where this has been done is that the prison population has gone down. People are showing up in court. And the rate of crime while people are on release has actually gone down, as well,” says Stuart Rabner, the chief justice of New Jersey.
In Washington, D.C., for example, the vast majority of defendants are released without bail. Almost 90 percent show up for court. But Washington’s pre-trial detention system is elaborate and expensive. Counties in New Jersey complain that they’re being forced to hire more sheriffs and prosecutors, without any extra money.
“We are simply sitting back and saying we told in 2014 this would be expensive and difficult to implement. And then the fundamental question of, whatever fairness it is we’re buying, is it worth it?” says Jeff Clayton, who directs the American Bail Coalition, an industry trade group.
But the new system seems a lot fairer to Mustafa Willis. He wound up owing thousands of dollars to a bail bondsman after his arrest in Newark.
“I was in debt from this,” he says. “And the case was still dismissed, and I still had to pay them for nothing. Something that I didn’t even have, like.”
There is one thing that reformers and the bail industry seem to agree on. If New Jersey’s experiment goes well, other states will try to copy it.