Keeping Low-Risk People Out of Jail Before Trial

New Jersey is among the states seeking to change systems to release pretrial detainees based on the risk of danger they pose, not their ability to pay.

Leslie Chew was working as a handyman in southern Texas in 2009 when his life took a dramatic turn. One cold night in December, he decided to steal four $30 blankets from a local store. He needed the blankets because he
couldn’t make ends meet and would often sleep in the back of his old station wagon. But stealing them turned out to be a bad decision.

He was arrested on the spot and was unable to be released from jail pending his return to court because he could not pay either the $3,500 cash deposit required by the court or the $350 that a bail bondsman would charge in order to have the bondsman make bail for him. Since he couldn’t make bail, he spent more than six months in the Lubbock County jail. He was not considered a flight or public safety risk. He just couldn’t afford to get out. Chew’s story was told by Laura Sullivan of National Public Radio in 2010 as part of a three-part series on bail reform.

Chew is among the more than 10 million people who cycle through the nation’s jails each year. On any given day, about 750,000 people are in jail and more than half a million of them remain locked up while awaiting trial simply because they cannot make bail. Keeping them in jail costs taxpayers $9 billion a year.

In most states, a person who has been arrested appears before a judge who is supposed to determine whether releasing him poses a risk that he will disappear or endanger the community. However, in far too many cases, the judge only requires the posting of a money bond. Those who can’t afford to pay, even when they are charged with non-violent, non-felony offenses, stay in jail.

New Jersey is the most recent state to confirm this trend in a first-ever analysis of the state’s jail system commissioned by Public Welfare Foundation grantee Drug Policy Alliance and conducted by Luminosity. This kind of analysis helps advance the foundation’s Criminal Justice Program goal of reducing jail populations through the reform of pretrial detention policies and practices.

The Alliance’s report, which was released in April, found that, on any given day, the New Jersey County Jail System (NJCJS) had about 15,000 inmates in its custody, housed in facilities in the state’s 21 counties. Nearly 75 percent of these individuals are awaiting trial rather than serving a sentence and the average time that these pretrial inmates are incarcerated is more than 10 months.

Most significantly, nearly 40 percent of the total jail population has the option of posting bail, but lacks the financial resources to do so, including more than 1,500 individuals who could be released pending trial for $2,500 or less.

As Marie VanNostrand, author of the report, points out, “The decision to release or detain a person pending trial must be based on the risk the defendant poses to the community and of failing to appear in court. A pretrial system that provides limited or no alternatives to monetary bail often results in the detention of low-risk individuals who lack resources and the release of high-risk individuals who have resources. Shifting from a resource-based system to a risk-based system will undoubtedly improve public safety and ensure more efficient and effective use of public funds.” In addition to financial costs, resource-based bail systems have human costs. Research shows that among defendants facing the same charge and who have the same criminal history, those who are kept in jail before trial receive worse plea offers, are sentenced to prison more often if they are found guilty, and receive harsher prison sentences than those who are released under court-ordered supervision.

Studies also find that just two to three days in jail pending trial can have a significant and lasting impact on a defendant’s family, such as the loss of permanent employment or, for single parent households, a child being placed in state custody.

Advocates of validated risk assessments to determine who should or should not be held in jail pending trial include U.S. Attorney General Eric Holder, who spoke to a National Symposium on Pretrial Justice in 2011. Referring to pretrial detainees being held for non-violent, non-felony offenses, he said, “Almost all of these individuals could be released and supervised in their communities—and allowed to pursue and maintain employment and participate in educational opportunities and their normal family lives— without risk of endangering their fellow citizens or fleeing from justice.” Yet only about 300–400 jurisdictions around the country have pretrial services agencies that could manage such court-ordered supervision and fewer than 100 use validated risk assessments.

However, things are changing. In 2011, Kentucky passed a law requiring every county to allow low- and moderate-risk defendants, as determined by validated risk assessment tools, to be released on non-financial bonds. In 2012, Delaware also required that a validated risk assessment tool be incorporated into the bail process.

New Jersey might be next on the list. Roseanne Scotti, director of the New Jersey office of the Drug Policy Alliance, says that the recent report has changed the conversation in the state.

“Previously, any discussion about bail reform centered on keeping high-risk offenders in jail pending trial. But the report educated legislators, the public and the media about the dire situation of poor people spending an average of ten months in jail pending trial based on resources rather than risk. Now, the conversation about bail reform is more holistic and focuses as much, if not more, on creating a system that allows for non-monetary release conditions.”

Gov. Chris Christie has already proposed some reforms, including giving judges more discretion to detain violent career criminals before trial. Recently, Chief Justice Stuart Rabner announced the creation of two committees to find the best ways to overhaul the state’s courts. Regarding the large number of people awaiting trial in jail because theyc an’t afford to post bail payments of $2,500 or less, Rabner said, “…that’s not a healthy practice for a system of justice.”

As the State Legislature considers various pretrial detention reforms, the report will continue to influence the debate.

As Scotti notes, the report, “provided solid data for advocates and legislators to use to move a reform agenda.” And, she thinks that it “has significantly bincreased our chances of success because…it highlighted the moral and fiscal failings of the current system.”

Rosanne Scotti of New Jersey Drug Policy Alliance discusses bail reform on NJTV. See TV show.


The Public Welfare Foundation supports efforts to advance justice and opportunity for people in need. These efforts honor the Foundation’s core values of racial equity, economic well-being, and fundamental fairness for all. The Foundation looks for strategic points where its funds can make a significant difference and improve lives through policy and system reform that results in transformative change. For more information, visit Follow the Foundation on Twitter or on Facebook.

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