ACLU-NJ & Rights Groups to Council on Mandates: Keep Historic Bail Reform Intact

December 21, 2016

ACLU-NJ, Drug Policy Alliance, Latino Action Network, NJ NAACP & NJ Institute for Social Justice Submit Brief to Preserve Bail Reform

New Jersey-based civil rights and policy organizations submitted a friend of the court brief to the Council on Local Mandates on Dec. 21 arguing that a civil rights measure to reform bail set to go into effect on Jan. 1 should proceed undisturbed.

The American Civil Liberties Union of New Jersey, Drug Policy Alliance, Latino Action Network, NAACP New Jersey State Conference, and the New Jersey Institute for Social Justice — all designated by law to serve on the Pretrial Services Program Review Commission for the 2014 Criminal Justice Reform Act — jointly filed a brief (PDF) in support of the New Jersey Attorney General’s motion to dismiss a complaint (PDF) filed by the New Jersey Association of Counties.

In a complaint filed on Dec. 6, less than a month before the historic reforms are set to take effect, a group of New Jersey counties argued that they would be forced to bear unfunded costs as a result of two provisions of the law. The law shifts New Jersey from a money-based system of bail to a risk-based one, and it added speedy trial protections to ensure no one languished in jail unnecessarily. The counties point to two provisions of the law that they claim have unknown cost impacts: the law’s retraction of the current 72-hour window standard for court appearances to a 48-hour window for risk-assessment and a court appearance, and the staff requirements to enforce speedy-trial provisions.

The five civil rights organizations that submitted the Dec. 21 filing demonstrate in their brief that because the Criminal Justice Reform Act implements provisions of the New Jersey Constitution dealing with bail and speedy trial, the Council on Local Mandates must determine that it is not an unfunded mandate.

The bail reform measure comprises two parts: a constitutional amendment affirmed by the voters of New Jersey and legislation signed by Governor Christie that implements the amendment and the speedy trial guarantees already in the State Constitution. All five organizations submitting the brief support the reforms, which they believe will help reduce unfairness and discrimination present in the current bail system.

The brief points out that the counties’ assertions about cost are speculative. They fail to consider cost-free alternatives and ignore the significant savings that counties will realize from reduced jail populations, the brief argued.

“More than two years ago, the Legislature approved a powerful law to give meaning to important constitutional protections that were not being observed on their own. It was widely understood then – and remains understood today – that if properly implemented, the bail reform law would help alleviate the burden and inequity of mass incarceration in New Jersey. These civil rights gains will also in turn save counties significant sums of money.

“The Association of Counties has ignored the reality of these civil rights gains and cost savings, focusing only on portions of the statute and speculating wildly about costs, in seeking to halt this historic reform. Fortunately, the Council on Local Mandates has historically avoided striking down laws that implement constitutional provisions, and we hope the council continues to honor that constitutional requirement by leaving the bail reform law untouched.

“We are optimistic that the council will follow the law and determine that the Criminal Justice Reform Act is beyond the council’s purview in the first place, and that even if it weren’t, that this law is not an unfunded mandate. That decision from the council will once and for all allow New Jersey to move forward with this critical step in making its criminal justice system fairer and more just.”

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