ACLU-NJ & Rights Groups Urge Council on Mandates to Keep Historic Pretrial Justice Reform Intact to Protect Civil Rights

The ACLU of New Jersey argued before the Council on Local Mandates this morning to keep New Jersey’s historic pretrial justice reform measures intact in the interest of civil rights and civil liberties. The reforms shifted New Jersey’s bail system from cash-based to risk-based and added speedy trial protections. The law has already ensured that New Jerseyans will not languish in jail unnecessarily because of an inability to pay while awaiting trial.

The ACLU-NJ is serving as a friend of the court on behalf of itself and four partner civil rights organizations designated by law to serve on the commission governing rules for pretrial justice reform: the Drug Policy Alliance, Latino Action Network, NAACP New Jersey State Conference, and the New Jersey Institute for Social Justice. These organizations jointly submitted a friend-of-the-court 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.

The pretrial justice reforms went into effect on their January 1 implementation date, after the Council rejected a motion from the New Jersey Association of Counties’ to stop them. The counties failed to demonstrate that that the reforms would amount to an unfunded mandate, the Council said in its Dec. 26 ruling.

“The counties challenging pretrial justice reform have ignored the law’s civil rights gains and potential cost savings, focusing on only portions of the statute and using speculation as an excuse to halt this historic reform,” said ACLU-NJ Senior Staff Attorney Alexander Shalom, who argued before the Council today. “We hope the Council on Local Mandates keeps these important reforms intact and allows New Jersey to move forward in making its criminal justice system fairer and more just.”

Because pretrial justice reform implements existing parts of the New Jersey Constitution guaranteeing the right to bail and speedy trial, it is not subject to the constitutional provision governing unfunded mandates, the ACLU-NJ said in arguments before the court. Even if it were, the ACLU-NJ contended, counties’ speculative cost assertions fail to consider cash-free alternatives and ignore significant savings that could be realized from reduced jail populations. The Council on Local Mandates can strike down certain state laws that impose undue costs on local government, but the provision creating it specifically excludes measures that implement the New Jersey Constitution.

A month in, pretrial justice reform has already made the criminal justice system fairer. The vast majority of low-risk offenders have awaited trial on conditional release, and almost no one who was released was given cash bail as a condition.

The reforms were passed in 2014 through legislation signed by Governor Christie and a constitutional amendment affirmed by voters. The counties claimed two provisions would have unknown cost impacts: retracting the standard for court appearances to a 48-hour window for risk-assessment and a court appearance, down from 72, and the staff requirements to enforce speedy-trial provisions.

The brief (PDF) on behalf of the ACLU-NJ and partner organizations was submitted on Dec. 21, 2016. The New Jersey Association of Counties complaint (PDF) was filed on Dec. 6, 2016.