In 2017, New Jersey enacted the Criminal Justice Reform Act (CJRA). Its goal was to reduce the use of financial conditions of release while helping people succeed pretrial and protecting community safety. The CJRA, as well as constitutional amendments and a change in system culture, transformed the state’s pretrial system. New Jersey increased its use of complaint-summonses (often known as citations in lieu of arrest); implemented a pretrial assessment, the Public Safety Assessment (PSA); developed statewide pretrial services; essentially eliminated the use of financial conditions of release; and instituted strict, speedy trial requirements. As a result of these and other advancements, New Jersey reports that its jail population has dropped by 52 percent—from 15,006 people in 2012 to 7,937 in 2019.
“The hope was that we would create a system that… erred on the side of protecting liberty without harming public safety, and I think we did a pretty good job of that.”
Increasing the Use of Citations-Summonses
The increased use of citations-summonses has had a particularly significant impact on reducing people’s deep involvement in the justice system. In 2016, before the CJRA came into effect, New Jersey’s attorney general issued a directive to all county prosecutors and law enforcement agencies that sought to limit the number of people charged with nonviolent offenses from being detained pretrial. Specifically, it provided policy guidance around decisions to seek a complaint-warrant (which results in a custodial arrest) and to request pretrial detention. Law enforcement always had the option of issuing a summons in lieu of making a custodial arrest. But the directive “encourages police and prosecutors to charge by way of complaint-summons rather than complaint-warrant whenever that can be done without jeopardizing public safety.”
Generally, the directive’s guidance makes clear that a complaint-summons is appropriate if the person is likely to be released on recognizance or when it appears that the person needs very little, if any, pretrial monitoring to succeed while on pretrial release. A complaint-warrant should only be used in cases of serious crime or when there is reason to believe that community safety will be enhanced if the person is detained or provided with pretrial services. For instance, the presumption flips to a complaint-warrant if the person receives a score of 3 or higher on the PSA, or if the person has violated a domestic violence restraining order.
Tremendous Positive Change
As a result of the directive, as well as the use of the PSA and early screening by prosecutors, far more people are released on a complaint-summons and never booked into jail. In 2014, before implementation of the reforms, 54 percent of all arrests received citations-summonses. By 2018, that number increased to 68 percent.
“[The increased use of complaint-summonses] was a tremendous positive change because it limits the number of people who become entangled in the criminal justice system, except when it’s necessary,” said Alexander Shalom, senior supervising attorney and director of Supreme Court advocacy of ACLU-New Jersey, who was part of the reform committee. “The hope was that we would create a system that… erred on the side of protecting liberty without harming public safety, and I think we did a pretty good job of that.”
Making Arrests More Transparent
Mercer County Prosecutor and President of the County Prosecutors’ Association of New Jersey, Angelo Onofri, was a member of the Attorney General’s Working Group that drafted the directive. He noted that before the CJRA was implemented, officers received intensive training on both the statutory changes and the directive. Onofri believes these trainings contributed to the success of the reforms and were reinforced by having senior assistant prosecutors on-call to resolve any questions officers may have had in the early phase of implementation.
“My office trained all 1,100 law enforcement officers in Mercer County to issue a [complaint-summons] unless factors were present to [justify issuing a complaint-warrant],” said Onofri. “The Directive also made it clear that we could not charge everyone on a warrant in order to circumvent the CJRA.”
Police officers were also trained on the PSA and the state’s technology system, which produces immediate assessment results. Shalom, from the ACLU, believes using the PSA helps make arrest decisions more transparent: “The PSA in New Jersey is a transparent tool, so we know exactly what factors yield what results…and it helps to provide a greater degree of consistency.”
Big, Systemic Changes
“[Using complaint-summonses] was just a small part of some very large reforms. We went from a money bail system to a nonmoney bail system, and there were heaps of challenges with that, including trying to change a culture around pretrial incarceration,” said Shalom. “Once we built in those big, systemic changes, then there was the change around complaint-summonses, asking police officers to run the PSA in order to make some arrest decisions.”
The CJRA also required that a first appearance hearing be held within 48 hours for those subject to custodial arrest. During that hearing, unless the prosecution moves to have the person detained, the judge must release the person and set (nonfinancial) pretrial release conditions.
“The Best Pretrial System in the Nation”
Since implementing the CJRA and the directive, New Jersey law enforcement has issued fewer warrants and more summonses. This has resulted in fewer people charged with nonviolent crimes being jailed pretrial. Onofri says, from a prosecutor’s view, there are still some challenges but the intent is “to keep the truly violent offenders detained pretrial.” Ultimately, he recommends that all systems should only use detention where it is appropriate.
“The changes we made in January 2017, which included bringing New Jersey up to speed technology-wise and creating a Pretrial Services Agency, have probably made ours the best pretrial system in the nation,” said State Public Defender Joseph E. Krakora. He added that, in response to COVID-19, they have increased their use of citations another 25 percent since March 2020.
Confronting Racial Disparities
Despite having notable success, New Jersey admits to ongoing struggles with racial disparities. According to the Administrative Office of the Courts, Black people are more likely than white people to be charged with complaint-warrants and are likely to spend more time in jail awaiting case disposition. Black people made up 15.1 percent of New Jersey’s population in 2018 yet they made up 55 percent of the jail population in 2019. In addition, New Jersey has one of the highest rates of racial disparities in marijuana arrests in the country—something that Shalom believes the state must address.
Shalom believes the PSA’s transparency helps bring systemic racism to the forefront. With the data collected using the PSA, as well as the reporting requirements dictated by the CJRA, decision makers are taking a much closer look at disparities and are committed to addressing them. According to Onofri, they are looking to conduct law enforcement officer trainings on implicit bias and racially influenced policing.
“Ultimately, if you are going to use criminal justice data to score your PSA, you are going to have to confront the deep racism that is buried in our criminal justice system. One of the reasons New Jersey chose the PSA is because it considers convictions, not arrests. But there is more we can do. For example, we know that arrests for possession of marijuana in New Jersey have serious racial disparities.” Shalom wonders whether including such data in the PSA is somehow contributing to the problem. “That might be an area to explore and consider whether we could remove convictions for marijuana possession, because if we are trying to protect public safety, marijuana is not an indicator of it,” said Shalom.
For more information about systemic advancements in New Jersey’s pretrial system, see A Deeper Look: New Jersey’s Pretrial Outcomes.