Why some see New Jersey as a model for bail reform in Illinois

Given its unfair reputation as home to little more than swamps, toll roads lined with industrial sites and overtanned meatheads hangin' out at the Shore, you might not expect to hear many high-ranking officials in the suburbs saying we should be more like New Jersey.

And yet there was DuPage County State's Attorney Robert Berlin before his county board Tuesday, extolling the virtues of the Garden State — at least when it comes to its take on bail reform.

Berlin, a vocal critic of Illinois' plan to eliminate cash bail Jan. 1 as part of the much-debated SAFE-T Act, told county board members that New Jersey's system — similar, but with some key differences — should be the model for Illinois.

“New Jersey eliminated cash bail in 2017,” Berlin said. “And by all accounts, from judges, defense attorneys and prosecutors, their system has worked incredibly well.”

So, what's Jersey got that we won't? To find out, we reached out to one of the people who oversaw the implementation of bail reform there, former New Jersey Attorney General Christopher Porrino.

The Jersey way

Bail reform in New Jersey came about after a yearslong effort launched by Porrino's former boss, ex-Gov. Chris Christie. As in Illinois, the proposal stirred plenty of controversy and faced significant pushback. But once it was a done deal — approved after an emergency legislative session and statewide referendum in 2014 — the reform successfully balanced public safety concerns with the desire to eliminate an unfair bail system that tied a person's freedom to their access to money, Porrino said.

“It created a system where the most violent, dangerous criminals couldn't buy their way out of jail pending trial,” he said. “And it also created a system where the nonviolent offender would not be jailed unnecessarily because he or she couldn't post $2,500 bail.”

There are two key differences in New Jersey's approach and the one set to take place here on New Year's Day.

First, nearly any crime is detainable in New Jersey, so long as a judge believes the defendant may be a danger to the community, will not appear in court as required, or will attempt to obstruct justice or intimidate a witness or juror.

Illinois' law places stricter limits on those who can be denied release and the reasons why.

Only those facing charges that carry a mandatory prison sentence — first-degree murder, criminal sexual assault, aggravated kidnapping and aggravated arson among them — can be denied pretrial release outright.

Those facing felony charges for which probation is possible, including second-degree murder, aggravated battery, hate crimes and threats against public officials or schools — can be ordered held only if prosecutors can prove certain conditions, such as a high risk that person will flee. And some crimes, including a small number of felonies, are not detainable at all.

The second key difference is what prosecutors must show a judge to get a defendant detained. In New Jersey, a judge can order detention if shown a defendant poses a threat to any individual or the community at large, or that the person is a flight risk.

In Illinois, prosecutors must show that defendant is a threat to a “specifically identifiable person or persons” — the community at large won't factor into the decision — or that the person isn't just a flight risk, but a “high risk of willful flight.”

Critics say those higher standards make it more likely dangerous people will be let back into their communities to commit more crimes.

“I have to scratch my head and just ask why,” Porrino said of Illinois' approach. “If you (say) someone is extremely dangerous, but hasn't made a threat against a particular individual, should be out and free to engage in more mayhem, I don't understand the logic of it. It's not practical to me. It's not in the best interest of the community.”

Success story

When Berlin and Porrino praise the success of New Jersey's bail reform, what do they mean? We checked out the 2021 Criminal Justice Reform report from the New Jersey Administrative Office of the Courts to see.

According to the report, bail reform there hasn't resulted in a notable increase in new crimes committed by those allowed pretrial release without posting bail. About 12.7% of defendants released on cash bail in 2014 committed another offense while free, the report states. In the years since cash bail went away, that figure has hovered around 13.7%.

Likewise, it hasn't led to much of a spike in defendants skipping court. In 2014, the appearance rate was 92.4%. In 2020, it was 90.9%, the report states.

In the meantime, incarceration rates have plummeted — saving taxpayer money as a result — and crime rates fell until the nationwide spike in the wake of the COVID-19 pandemic.

Hope for critics

Among the lawsuits, trailer bills and other efforts to change or halt Illinois' plans before Jan. 1, one stands out for Berlin and others. Senate Bill 4228, filed by Democratic state Sen. Scott Bennett of Champaign, would tweak Illinois' bail reform to make it more like New Jersey's. That includes allowing judges to consider the threat a defendant poses to the community at large and changes the “high risk of willful flight” language to “serious risk.”

Gov. J.B. Pritzker weighed in on Bennett's proposal last week, calling it a “pretty good bill.”

We'll keep an eye on it when the General Assembly convenes for its veto session in November.

Whatever the final result come Jan. 1, criminal justice reformers across the country will be watching and hoping Illinois gets it right. Failure could be a setback for similar efforts elsewhere, Porrino told us.

“That just makes it more difficult for the politicians to get on board and other states,” he said. “And that's a shame because it's, it's not in the interest of what most people who really understand the issue want.”

See for yourself

Want to hear directly from Berlin about the SAFE-T Act? You can on Monday, Oct. 24, when he's scheduled to join DuPage Sheriff James Mendrick to discuss the legislation at a town-hall meeting in Bartlett.

The free event is set to take place from 5:30 to 7 that evening at the Bartlett Public Library, 800 S. Bartlett Road.

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