Phil Stilton

After our coverage last week regarding the problems associated with New Jersey bail reform, many police officers have contacted us thanking us, but very few would go on the record criticizing the new system that is rapidly undoing their hard work apprehending criminals and keeping their communities safe.

One police officer, a detective who has had enough of the hardened criminals his department arrests being let back into public hours after an arrest wanted New Jersey to know the other side of bail reform.

After the editorial board of the Star Ledger defended bail reform and blamed only a judge for the release of a two-time Little Egg Harbor Township child sexual assault offender, this detective had enough.

He did share with us his name and asked us to publish his name, but because of our knowledge of a recent gag order the Attorney General of New Jersey, we’ve decided not to publish his name or department.   Police officers, courts, prosecutors and every level of law enforcement agencies have been under pressure to “go with the flow” on the very broken bail reform system.

Here is his response to the Star Ledger editorial on bail reform.

The editorial published by Star Ledger Staff regarding bail reform published on February 2^nd, is a great indication of the general public’s misconceptions of how this system is really working. The Star Ledger cites several examples of where the system has failed already, but seems to place the blame on the judges rather than the system itself.

Quoting the Star Ledger “Under the old [bail] law, the only factor [in determining bail] was a defendant’s risk of flight – not the threat posed to the community.” This is false.

Under Bail Schedules 1 and 2, Court Rule 3:26-1, a predetermined monetary bail amount was set according to each specific statute. When setting bail, Judges and Judicial Officers HAD to abide by Court Rule 3:26-1:

“3:26-1 – Right to Bail before Conviction – The factors to be considered in setting bail are:

• The seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature;
• Defendant’s criminal record, if any, and previous record on bail, if any;
• Defendant’s reputation, and mental condition;
• The length of defendant’s residence in the community;
• Defendant’s family ties and relationships;
• Defendant’s employment status, record of employment, and financial condition;
• The identity of responsible members of the community who would vouch for defendant’s reliability;
• Any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention.”

As you can see, there wasn’t just one factor as the Star-Ledger would like it’s readers to believe, there were a total of eight. Suffice it to say, the Star Ledger didn’t do their research. What’s very important to note is number 8 “… the general policy against unnecessary sureties and detention.” The monetary bail system in New Jersey was generally well balanced and fair. For the most part, people weren’t subject to unnecessary pretrial incarceration for minor offenses thanks in large part to these factors unless there were other extenuating circumstances, but I won’t say that it never happened.

Now, to address the statement made by the Star Ledger that people were sitting in jail on minor or non-violent offenses and couldn’t “buy” their freedom. Bail reform did not address the issue of people sitting in jail on “minor offenses” like traffic warrants. In fact, under bail reform, people are more likely to be incarcerated on the inability to pay a traffic ticket as opposed to having committed a crime.

Under bail reform, determinations for incarceration are made based on computer Algorithms called “Public Safety Assessments” or PSA’s. If a defendant has a high PSA they are recommended for incarceration, if the PSA is low pretrial release or release on summons is recommended. However, as experienced by law enforcement across the state, the program is flawed. For example, the PSA numbers for Ahmad Khan Rahami, (the Seaside Park Boardwalk Bomber), were low enough that if he were processed under the new bail reform act, he would technically be eligible for pretrial release. Yet, despite bail reform being touted as a huge success; people are still sitting in jail on minor offenses because they have a past of committing minor crimes like shoplifting, while violent offenders are routinely released. Hypothetically, you could murder someone having never committed a crime in your life and have a lower PSA score than someone who shoplifted a few times in the past, so the Star Ledger was wrong again, a PSA score does not take the seriousness of the alleged offense into consideration when determining incarceration or release.

I will concede to one thing the Star Ledger stated; the bail system SHOULD be based on a risk assessment and a judge. In fact, it used to be. Just read the rules of 3:26-1 again; only Judges were allowed to use common sense. Now they’re forced to rely on the flawed PSA’s to make these determinations and it has failed miserably time and time again, for example Dawud Ward; he was arrested and released three times in a month for residential burglary. Maybe if Ward was in jail the first time under “the old law”, he wouldn’t have victimized two additional innocent people. But I digress. The pretrial conditions of bail reform require judges to take the PSA numbers into consideration; and to be fair, some judges may be more inclined to incarcerate while others are not.

Yes, offenders could post bail before and be released. But, the gang member that Star Ledger referenced with $50,000 worth of heroin, and a loaded 9mm, more than likely would have had a $250,000 – $500,000 bail maybe more depending upon his criminal history, prior failure to appears, and his status as a gang member. Even with a 10% option, he and/or his buddies are putting up a lot of cash to get him out. But let’s say he did bail out; the purpose of bail money is to guarantee he’s going to show up in court to answer to his charges; if he doesn’t, he forfeits the money and a warrant is issued for his arrest. But there’s more to it than simply “buying your freedom” as the Ledger puts it.

Most significantly, what the Star Ledger conveniently neglected to mention is what was known as a Bail Source Inquiry, P.L. 2007, c. 46., which was in effect until The Bail Reform Act was enacted.  During a Bail Source Inquiry, Pursuant to N.J.S.A. 2A:162-13, a person charged with a crime with bail restrictions had to provide, under penalty of perjury, information “about the obligor, indemnifier or person posting cash bail, the security offered, and the source of any money or property used to post the cash bail or secure the surety or bail bond, as the case may be.” This bail source inquiry was an 8 page application that had to be submitted for prosecutor review which encompassed the source of the money being posted for bail to ensure that gang members or other ill-gotten funds weren’t posted to bail someone out of jail. Just Google “NJ Bail source inquiry”, you will find the actual application on the Attorney General’s website.

But now defendants are released, with no bail source inquiry, no accountability, nothing to lose, just simply a promise to appear. Sometimes pretrial release monitoring consists of an ankle bracelet which offenders have been cutting off, and other methods are having the defendant provide a good phone number so they can “check in”, which shockingly enough, most phone numbers that have been provided don’t work. But for the Ledger to say “there’s more monitoring”, is a feel good statement without basis, there simply is not.

The most inaccurate statement the Star Ledger makes: “the poor were jailed simply because they couldn’t [“buy” their freedom].” First of all, refer back to the bail schedules, if you committed a burglary your bail was in the same range whether you were a millionaire or on public assistance, Judges simply had to set bail amounts according to the 8 factors mentioned above on a case by case basis. Furthermore, this isn’t about being poor – 3:26-1(6) – Rules Governing the Courts of New Jersey – Setting of Bail: “defendant’s employment status, record of employment, and financial condition [must be taken into consideration when setting bail].

What this is about personal accountability. It’s about obeying laws, and being responsible enough not to worry about coming up with bail money in the first place, I’ve managed to do it my whole life and so have millions of other people. The criminal justice system isn’t perfect, and it does need tweaking… here’s the fix; dangerous people belong behind bars, not on the street, and if they’re released, they need to be held accountable.

Historically, The State of New Jersey has exceeded Federal Constitutional Standards and extended these additional protections to its citizens. The 6^thand 8^th Amendments were never an exception. With that said there is a delicate balance between protecting the Constitutional Rights of defendants, while also placing a higher value of the rights of a person to live in a community knowing violent or abhorrent offenders are safely locked behind bars or at least being held accountable for their actions.

Bail reform has done the opposite. It has created a revolving door where offender after offender is being released back onto the streets days or even hours after arrest which compromises the safety and security of victims and communities. Even after only a month of bail reform, offenders are routinely arrested again shortly after being released. It isn’t “a rare case or bad call”, as the Star Ledger puts it, when it happens on a daily basis across the state; it is a testament to the failure of the system.

Because of the revolving door it has created, bail reform has proven to be a complete drain on law enforcement resources which has resulted in increased municipal overtime. Suffice it to say, bail reform came with changes to the online complaint systems which every law enforcement agency in this state uses.  The changes have resulted in increased booking times, increased complaint processing times and most importantly increased overtime.  What was touted as being saved in incarceration costs is lost in day to day police operations and most of all lost in implementation: $53.4 Million to be exact. The recently retracted Bill S2933, sponsored by Senators Robert Singer and Steven Sweeney which called for a property tax cap exclusion, that would have allowed the state to raise property taxes in order to fund bail reform throughout 2017, substantiates the fact that bail reform is unsustainable and New Jersey simply can’t afford. It took only a month and lawmakers were already looking to the taxpayer for additional funding… isn’t that a surprise.

By the way, I’m not a bail bondsman. I didn’t’ make a living from a monetary bail system, (nor was I financially liable for the estimated $638 Million in commercial bail posted annually, which a majority was allocated to the 21^st Century Fund) and personally, bail reform hasn’t affected me. But dealing with it every day, I see its shortcomings and all the societal woes that are sure to follow. I’m a police officer who’s tired of devoting days, months and endless hours into investigations only to see criminals being released with a slap on the wrist. I’m tired of seeing this state value its criminals more than the innocent people they victimize. The rights of the innocent should be appreciated more than anything else in our society. Trenton and some of our politicians obviously feel differently, and until they change it, the innocent people of this state will continue to pay for and fall victim to this total failure called bail reform.

Editor’s note 2/5/17: Edited for style, additional information added regarding bail reform.