Episode 783: New Jersey Bails Out

Jul 12, 2017
Originally published on August 1, 2017 1:37 pm

Mustafa Willis was arrested for a crime he didn't commit. He was offered bail, but, because he couldn't afford to pay, he stayed locked up for months, punished for a crime he had only been accused of.

Bail has been around for centuries. It's supposed to protect the rights of defendants like Mustafa who haven't been convicted of anything yet. At the same time, bail gives courts an extra guarantee that people are going to show up for their trials. But can a system built on money ever be fair to the poor?

In New Jersey, defense attorneys, judges, and prosecutors got together to try to reform a system that treated poor defendants so differently from rich ones. In the end: they got rid of bail.

Then they had to figure out how to replace it.

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KEITH ROMER, HOST:

We're going to start today's show by telling you the story of an innocent man - a man named Mustafa Willis.

JOEL ROSE, HOST:

The story begins in the summer of 2010. Mustafa was 24 years old then. He's a tall guy, wears his hair in long dreadlocks.

And one day, he was just walking down the street in Newark, N.J., minding his own business, eating a bag of chips.

ROMER: All of a sudden he sees a cop car coming the wrong way down a one-way street. The car stops right in front of him. Out come the cops.

MUSTAFA WILLIS: Yeah, they ran at me like a just - like, they just jumped out, like, they were swarming out like they knew who they were looking for. And, you know, I stood there and a whole bunch other guys - they just ran. And I just stood there. They placed me under arrest.

ROSE: The cops found a gun at the scene, and they said the gun was Mustafa's. He was taken downtown, thrown in jail, charged with unlawful possession of a firearm.

ROMER: And this is where your constitutional protections are supposed to kick in. The gun charge is just an accusation. Mustafa hadn't been convicted of anything.

ROSE: This is how the system is supposed to work. Mustafa is supposed to go home to his job and his family and start gathering some evidence to prove that the gun is not his. All he has to do is post bail, and he's free to go.

ROMER: Fifty-thousand dollars, set by the judge, and he can walk out of jail.

ROSE: He doesn't even have to come up with the whole amount, right? All he needs is 10 percent so that he can pay the bail bondsman his fee, 5,000 bucks. And then he has to find somebody to guarantee the rest, and he's free to go.

ROMER: But Mustafa didn't have 5,000 bucks for the 10 percent fee. And his family didn't want to be on the hook for 50,000.

So he's facing a brutal choice. He can either tough it out in jail, or plead guilty to a crime that he didn't commit.

WILLIS: When I told the public defender, listen, man, I didn't do it, he said, well, you'll probably be sitting in here pending grand jury, man. I said, well, hey, I guess I'm going to have to do it because I - it ain't my weapon, so...

ROSE: Mustafa thought, there is no way I'm going to plead guilty to a crime I didn't commit. So he just sits in jail and waits.

ROMER: While he was locked up, Mustafa lost his job driving a delivery truck. He missed his cousin's funeral - all because he couldn't afford to pay his bail.

ROSE: Finally, after a couple months, the judge lowered Mustafa's bail to $30,000, and his family bailed him out.

ROMER: Once he was out, Mustafa could dig up evidence to fight the gun charge.

It turns out there was somebody on the block who shot a video that day that Mustafa says proves the gun wasn't his.

WILLIS: The prosecutor got ahold to that. Immediately, she wanted to dismiss.

ROSE: This is what Mustafa had been saying all along. The charges were dropped.

ROMER: But still, he had to spend three months in jail for something he didn't do. And he ends up owing this bail bondsman 3,000 bucks - no refund for that fee.

WILLIS: I was in debt from this, and I had to pay all this money back to a bail bondsman company for something that I didn't even did. And the case was still dismissed, and I still had to pay for - for nothing.

ROSE: Bail is supposed to help people who get charged with a crime, give them a way to go home until their trial.

ROMER: But for Mustafa, bail didn't help him get out of jail. Bail was what kept him locked up.

(SOUNDBITE OF MUSIC)

ROSE: Hello and welcome to PLANET MONEY. I'm Joel Rose.

ROMER: And I'm Keith Romer.

Bail has been around for centuries. It's pretty much the law of the land in every state in this country. It's supposed to protect the rights of defendants like Mustafa, who haven't been convicted of anything yet.

ROSE: And at the same time, bail is supposed to give courts an extra guarantee that people are actually going to show up for their trials.

But what if bail is broken?

ROMER: Today on the show, the New Jersey bail experiment. A bunch of people who normally would not agree on anything got together to change the bail system. Their solution? They threw it out.

The first thing you need to understand about bail is that it is basically a workaround for this fundamental problem in the legal system.

ROSE: In a perfect world, if somebody got accused of a crime, the trial would happen instantly.

ROMER: In a perfect world, there - I mean, there wouldn't be crimes.

ROSE: In this world that's perfect but has crime in it - hear me out - you would get a trial the same day. If you're guilty, you would go off to prison. And if you're innocent, you would go free.

ROMER: But in the real world, there is a lot of time between that moment when somebody is arrested and when a jury figures out what the right verdict is.

ROSE: You can't just lock up everybody until their trials because, you know, that annoying thing about innocent until proven guilty.

ROMER: But if you just arrest somebody and then immediately let him go, there's nothing necessarily to stop that guy from running off to Brazil.

ROSE: Bail is a sort of compromise, right? We'll let you go until your trial if you give us some money - $10,000 or $100,000 - whatever it is. Show up at your trial. Get your money back.

ROMER: Not everybody thinks this is such a great system.

We talked to Roseanne Scotti. She is the sort of lawyer who looks at the criminal justice system and sees the injustice. She is the state director for the Drug Policy Alliance in New Jersey.

And she thinks that this whole bail compromise we've been talking about is pretty obviously unfair for one big reason, which is that not everybody has the kind of money to be able to pay their bail.

ROSEANNE SCOTTI: What you have to understand is that, you know, one of the things that most people who are in jail have in common is that they're poor. And so for these individuals, having a thousand-dollar bail or $2,500 bail - it might as well have been a million dollars bail.

ROSE: It's a pretty serious flaw that's built right into the legal system. Bail is way harder on poor people than it is on rich people.

ROMER: OK, so that's lawyer number one. Lawyer number two is a guy named Elie Honig. He's the assistant attorney general in New Jersey. He's in charge of criminal prosecution for the entire state. And he had a completely different problem with the bail system. For him, the real trouble was how the bail system treated rich people.

ELIE HONIG: The right to bail was enmeshed in the New Jersey state Constitution. We had a constitutional provision that said every criminal defendant is entitled to bail, period.

ROMER: There are some people, Elie says, who just should not be allowed to post bail at all.

HONIG: When you're looking at the leader of a racketeering enterprise, a mafia family, a large drug trafficking organization, you could have a kingpin - somebody who's dangerous, somebody you've charged with murders. Now, those folks can come up with money. And the notion that those people could buy their way out of jail was really problematic.

ROSE: There's a reason Elie gets so worked up about this. He used to be a federal prosecutor. And the feds do not have a law like the one in New Jersey that says everybody must get bail.

ROMER: Elie's new boss is New Jersey Governor Chris Christie. He used to be a federal prosecutor. He's used to the federal system.

In 2012, he proposed a constitutional amendment in New Jersey to create something called preventive detention, basically giving judges the right to hold somebody without any bail whatsoever.

ROSE: New Jersey, though - they didn't go for it. His plan did not make it out of the Legislature.

ROMER: To Roseanne Scotti, the lawyer who's trying to make the whole system more fair, Christie's plan just looked like a classic law-and-order move - exactly what you would expect from a prosecutor who's now a politician.

SCOTTI: We thought that preventative detention alone would not in any way solve the problem. It would probably make things worse because you would have preventative detention as a new tool to keep people in jail.

ROMER: Jail, by the way, is where you wait for trial or serve short sentences. Prison is for people who are serving longer sentences.

ROSE: For folks like Scotti, the problem was that there were too many people in jail, not too few.

ROMER: To try to make her case, she got her hands on the jail population data for the entire state.

SCOTTI: In looking at the population, we found that 40 percent of the people who were in our jails were there solely because they lack the money for often nominal amounts of money bail.

ROMER: Literally thousands of people who hadn't been convicted of anything, sitting in jail, waiting for their trials, just because they were poor.

ROSE: And that wait was not trivial. The average length of time for someone who had officially been indicted but hadn't yet gone to trial was 314 days. That's 10 months.

SCOTTI: While people are sitting in there, in jail, for months and sometimes years, you know, they're losing jobs. They're losing family. They're losing housing.

ROMER: All that time in jail, it's obviously bad in and of itself. No one wants to just sit in jail. But on top of that, it can start to change the actual legal outcome of cases - whether people end up being found guilty or innocent.

ROSE: Prosecutors are not stupid. They know that people just want to go home. And they know that that gives them a lot of leverage.

HONIG: There is a phenomenon - which I think you're not supposed to talk about publicly, but I will - called the time served plea. And what that meant is you would have defendants who would be held on low money bails, couldn't post it, and they would sit there in jail for three, four, six months.

And then when they came out to make their next appearance, their lawyer would say, you've been in six months. If you take this plea, you walk out today. And so you got that plea. It was an easy way to get pleas.

ROMER: How common a practice was that?

HONIG: Oh, very common - I mean, I think it happened probably in every county across the state.

ROMER: So first, you get punished. Then, at the end of your jail time, they figure out whether or not you actually did it. It's a crazy system.

ROSE: Or you can just plead guilty, even if you're not, since that means you get to go home now instead of waiting however many more months it is until your trial.

SCOTTI: This was such a terribly broken, unfair, appalling system. It was such, you know, just bald, naked injustice and really corruption - just a corrupt system.

ROMER: In 2013, Roseanne's organization put out a report that basically said, this is how screwed up New Jersey's bail system is.

ROSE: Now, I don't want to sound cynical, but usually a report is where stories like this end.

ROMER: Well-intentioned organization puts out a report. Joel Rose does a heart-rending NPR story.

ROSE: (Laughter).

ROMER: Yes. Everyone shakes their heads. And they say, that is too bad.

ROSE: Right, and we just move on to the next one. But nothing really happens. Nothing changes.

ROMER: But in New Jersey, the report caught the eye of the chief justice of the New Jersey Supreme Court.

ROSE: He calls everyone into his ceremonial chambers - the judges, the public defenders, the ACLU, the prosecutors.

ROMER: Elie.

ROSE: Elie's in the room. And he tells them, fix it.

A lot of lawyers.

HONIG: A lot of lawyers, yeah. But we got something done. People say you get a lot of lawyers together, they will get nothing done. I think this is an example to the contrary. We got quite a bit done.

ROSE: All those lawyers came up with a plan to get rid of bail altogether.

ROMER: After the break, what was in that plan? How do you replace a system that we've been relying on for hundreds of years?

The most obvious problem with getting rid of bail is figuring out a new way of deciding who gets out before their trial and who stays locked up.

ROSE: Elie says the old system was bad, but it was simple.

HONIG: Under our old system, the first thing a judge would do, the judge would look at the charge against this defendant, look at the chart and say, OK, his money bail is X. If he can post it, he walks out. If not, he sits in jail until trial.

ROSE: So judges have a problem here. If you take away the bail and the bail chart, what are they supposed to do?

ROMER: I don't know - maybe use actual information about the real world.

ROSE: Oh, you mean, like, data.

ROMER: I mean, big data.

ROSE: Oh, big data.

ROMER: So researchers had been trying to solve this problem for years before New Jersey starts messing around with bail reform. There's a team of researchers from the Laura and John Arnold Foundation. They get the data of a million and a half people - cases from all around the country. And they run that data through a bunch of statistical analyses. And they create something called a risk assessment algorithm. This algorithm basically predicts how likely somebody is to fail to show up to court and how likely they are to commit a new crime.

HONIG: The risk assessment is automatically run, and it immediately spits out a result of 1 to 6 on two different scales, 1 being low, 6 being high.

ROSE: It's not even that complicated. The algorithm just looks at nine factors.

HONIG: Does the defendant have a prior conviction for a crime of violence? Has that conviction occurred within the past X number of years? You know, has the defendant had failures to appear or bench warrants issued in prior cases?

ROMER: Interestingly, one of the factors is how old the defendant was at the time the crime was committed. If you're under the age of 23, says the algorithm, you're actually more likely to commit a new crime than somebody who is older.

ROSE: Not everyone thought this algorithm, though, was such a good idea.

HONIG: The reactions to the risk assessment tool were interesting. And I think it's fair to say that, at first, there was pretty broad skepticism.

ROMER: First reason for the skepticism - the whole thing just seemed a little, like, sci-fi and creepy.

HONIG: I think of the movie "Minority Report" with Tom Cruise, where, you know, they feed the information to these cyborg-like beings who predict the future, and that makes...

ROSE: The pre-cogs.

HONIG: The pre-cogs. And that makes people uneasy.

(SOUNDBITE OF FILM, "MINORITY REPORT")

TOM CRUISE: (As Chief John Anderton) The pre-cogs see the future, and they're never wrong.

COLIN FARRELL: (As Danny Witwer) Ever get any false positives? Someone intends to kill his boss or his wife, but they never go through with it. How do the pre-cogs tell the difference?

CRUISE: (As Chief John Anderton) Pre-cogs don't see what you intend to do, only what you will do.

ROMER: And it is weird, right? Like, the algorithm looks at all this information about you, like have you committed a crime before, did you skip your last court date? And it says, OK, there is a 40 percent chance that you are going to commit a new crime before your trial, and so you have to stay locked up because of something you haven't done, something you might do in the future.

ROSE: And I just feel compelled to point out here that the pre-cogs, they weren't always right. That was the whole point of the movie. Like, that's the future. It hasn't happened yet. But, OK, when you compare this system to one that depended on bail and bail charts, the tool looks pretty good.

ROMER: Because now people are being detained based on real information about their risk to the community, about the chances that they won't show up for their trial.

ROSE: There is a second concern that people have about this risk assessment tool, and it comes down to bias. People complained that the old system was biased against poor people and people of color. And what's to stop a new tool that's based on big data from being just as biased against the same people?

ROMER: I asked Roseanne Scotti that. She is a lawyer who fought her entire life to make the justice system more just. She loves the tool. She says the algorithm was specifically designed to avoid the bias trap.

SCOTTI: Well, I think the key is what it doesn't look at. You know, some folks were concerned that it would look at - you know, it would be a proxy for race and things like that, which it isn't. It does not look at your zip code or where you live or your neighborhood.

ROSE: Scotti says the algorithm is just as good at identifying risk for rich people as it is for poor people, for black people as it is for white people.

ROMER: So great idea, right? Just get rid of bail, replace it with the algorithm, no brainer. Everyone is going to love this.

ROSE: Well, everyone except the bail industry, partly because it's going to destroy their business.

ROMER: Entirely because it's going to destroy their business.

ROSE: They lobbied super hard to keep these changes from becoming law. They warned about the crazy tsunami of crime that was going to wipe out New Jersey if the state got rid of bail.

ROMER: The fight to pass this law was intense.

SCOTTI: We were still counting votes the morning of. It was really not till, you know, the last vote was called that we knew we had won.

ROMER: Roseanne and Elie and all the other reformers, they did win, though.

ROSE: The old system is gone. As of January 1 of this year, there is essentially no more cash bail in New Jersey.

ROMER: And remember Mustafa from the beginning of the show? Under the old system, he got held for three months in jail on $50,000 bail. If you run Mustafa through the new algorithm, this is what you get - no prior offenses as an adult, no bench warrants, on the right side of 23 years old when he was arrested. He's a 1, the lowest score on the risk scale.

ROSE: That means under the new system, Mustafa almost certainly gets to go home instead of having to spend all that time locked up. Maybe he doesn't lose his job. Maybe he gets to go to his cousin's funeral.

ROMER: That's the new reality in New Jersey. You look at who's in jail, and there is this real shift. More and more, the people who are locked up in jail are the ones who have been convicted of crimes instead of just accused of them.

ROSE: Roseanne Scotti, the lawyer who's been working for decades to make the criminal justice system more fair, she says this is easily one of the biggest achievements of her career.

SCOTTI: When we got the first statistics in February that showed that the jail population had been reduced by almost 30 percent, I cried. That was an amazing moment, to know that, you know, you had done something, where so many people were now going to go home to their families, their communities. And to know that you had made a difference and so many people would not face that injustice was very profound.

(SOUNDBITE OF MUSIC)

ROMER: More and more in New Jersey, punishment comes after a conviction, not before it.

(SOUNDBITE OF MUSIC)

ROMER: We'd love to hear what you think about the show. You can send us an email - planetmoney@npr.org. We're on Facebook, Twitter all that stuff @planetmoney. Special thanks today to Jocelyn Simonson, Cherise Fanno Burdeen and Marie VanNostrand.

ROSE: Also Kirk Shaw and Judge Glenn Grant. Today's show was produced by Nick Fountain. Our chief justice is Alex Goldmark. Our bail bondsman is Bryant Erstat (ph). If you're looking for something else to listen to, check out Up First, NPR's morning news podcast. That's where you can hear reporters like me get up very early to bring you the news. You can find it at npr.org/podcasts or on the NPR One app. I'm Joel Rose.

ROMER: And I'm Keith Romer. Thanks for listening.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.