The Poor don't Need to Pay Bail BUT
[note: I get serious at the 3rd paragraph]
How fast can an innocent man get out of jail in NJ these days? Well, if you took a solitary ant, saddled him with 70 times his weight in extra luggage, and asked him to circumnavigate Chris Christie's girth--all the while tabulating the location of the crumbs as it trudged through a coating of hot Fralinger taffy, the ant would travel a distance equal to that of from Trenton to the White House before you'd be released (on your own recognizance to await trial, no less) and (incidentally, I've also factored in the time the ant would need to evolve to actually do these things [OK, evolve with a little help from the friendly Mary Shelleys at Monsanto). We are told, however, that there are these progressive measures in the works. (See the Fiscal Analyst's description of the law if you want a more readable version)
"Bail is set at $__," "Bail is denied," groans or moans the judge. These are statements which all of us have in our memory banks. At least, those of us who have watched television or gone to movies in the U.S. So, it is easy to wonder why New Jersey would need bail reform and a constitutional amendment to allow a judge in New Jersey to say these very same things in "Real Courts of New Jersey."
Well, it seems that New Jersey has or has had some incarcerated citizens or residents awaiting trial for at least two years. Outrageous! So think most of us with empathy--including the ACLU and the Drug Policy Alliance who asked us to vote YES on the Bail Question. The primary reason for the despotic behavior is that people can't afford to pay the high bail that judges--erring on the side of caution rather than affordability--have been setting. Why are they so cautious? Judging by the wording of the bill, getting an alleged perpetrator into court is problematic unless you hold on to them with some government machinations. Judges know that few can afford bail and few have any choice but to remain incarcerated until their indictment/trial comes up. The new law is not so much an attempt at getting us a speedy trial as it is an attempt to give judges and prosecutors new tools to hold onto the suspect. The sad truth is that today, after this legislation, it is allowable for you to be incarcerated for over 9 months whereas in prior times, it might have easily led to indefinite detention--an improvement, no doubt, to all except the innocent who still see themselves as unreasonably subjected to a prolonged government's whim.
In reading the new law, you see the imprimatur of the NJ justice system writ large. Take, for instance, the following statement which occurs more than 20 times and is meant to ensure that a detainee, if released, "would not obstruct or attempt to obstruct the criminal justice system." This is obviously a catchall phrase. Under this, I, who espouse jury nullification, would never be released on my own recognizance (I don't consider it obstruction of justice but they would).
So, have we been sold out by the same organizations that promote civil liberties? You bet your ass, we may have been. Even the ACLU has it's doubts; while lauding the law, it made a point of saying that they were going to keep tabs on how it all plays out. They know it’s a crappy law in defense of the innocent because it lacks teeth (and the stem cell tech needed to correct the problem is nowhere in sight). What exactly have we lost, though? Our right to bail was in the Federal and the NJ State constitutions; now, it is lost in the latter. In fact, you are only entitled to bail if the courts determine that that is the only way you'll show up for trial. If they think they can keep you within the confines of your home with an ankle bracelet, for instance, that is what they will do--it doesn't matter that you might have the resources to pay for bail so that you can avoid that confinement or that ankle bracelet which you fear won't let you sleep at night.
Let us address the poor defendant unable to post bail. What does this law do for him/her? That is the million dollar question because it all depends on the actions of a government (top-heavy in government personnel, of course) committee that will draw up an instrument to determine if the defendant is likely to skip town, hurt someone, or attempt to obstruct the criminal justice system. That's where the Pre-trial Services Program comes into play and nothing is specified about it in the law other than 1.) its operating budget (22 million) and 2.) who is on the committee. On the committee and on behalf of the people, we have the aforementioned ACLU and DPA; but also, the NAACP, and the NJ Institute for Social Justice. Cute, isn't it? The law takes away from the citizen his right to bail, and leaves us with an as yet undefined "instrument" that is supposed to get poor defendants released but, regardless of what they come up with, this instrument will only be considered at the ipse dixit of the judge and prosecutor--neither are under any obligation to abide by the recommendations. Can someone else say Sisyphus?
As a testament to how despotic NJ law can be, it wasn't bad enough that defendants could still see 9 months in jail, the Mighty One in Trenton (I’m sure he had his prosecutorial hands in this) made sure that there were 13 cases in which the time spent by the defendant in jail would not contribute to total time spent. These are known as exclusions and the 13th one is a catchall "m. Any other time otherwise required by statute." This one is also a fine state of affairs: "(2) The failure by the prosecutor to provide timely and complete discovery shall not be considered excludable time unless the discovery only became available after the time set for discovery." If I understand this correctly, if the time for discovery is never set, the prosecutor can drag his feet all he wants and the defendant still rots in jail with no recourse. I have no legal expertise and this last item could be a case of making a mountain out of a molehill but it points out just how diligent the ex-officio members have to be to prevent this from becoming a total farce. My bet is that after the dust settles, the poor will still be spending an inordinate time in jail, those with money will lose their right to post bail, and rich and poor alike will be spending more money on court fees and whatnot (thank you fine legislators for limiting the increases to $50. It would be laudable if it weren't for the fact that the fiscal analysts are predicting 46 million in revenue; and, even that must be underestimated because just consider: with 85000 defendants a year, for every week we slice off their detainment (assuming we do), we save close to 11 million in meal costs alone (assuming $20 a day).
[This business of having a defendant (guilty or not) pay for court costs is akin to the Romans asking Christ to carry his own cross. I mean, we made the laws that got a non-violent offender arrested and we expect him to pay for it? We made the stupid draconian laws, we should pay the court costs. Maybe then we wouldn't be so quick to lock everyone up for minor, non-violent offenses. In any event, punishment should be separate from the rest of the process. "Oh yea, while we have you here, we're going to stick a night stick. . ," No, the punishment should be the punishment and nothing else or else the phrase, "innocent until proven guilty," has no meaning in U.S. society.]
Finally, I'd like to ask the ex-officio members this, If the Risk Assessment Instrument is expected to be the cure for the ailment, why can the justice system so easily flush it down their metal toilets? I hope to God that I'm wrong, honorable institutions, but you and the people may have been suckered!
If judges were setting high bail in order to ensure that defendants show up, we have to assume that that motivation is still in place. If so, what's going to stop them from pursuing detention for 9 months while the State of New Jersey gets around to paying for court machinery to handle the extra load--which they never would because what are we going to do with so many judges if we, one day in a calendar, I admit, far, far away, should decide to do away with the drug laws? Hey, perhaps 9 months will be the new lower average for non-violent offenses. That's one good thing I never considered.
I see why a judge is loath to work a legal assembly line. The field is one of the hardest of human endeavors and true justice requires much of the intellect but pressed for time, the judge ought to prioritize cases, and just release those that fall beyond his docket calendar for the next 30 days. That's a win-win. If you don't have the resources to prosecute quickly and fairly, you shouldn't make people wait for justice and they shouldn't accept punishment (detention) before they've been heard. If they can't be heard, put it on hold. Tally it up, three indictments and you get scheduled for trial--whatever; we are smart people and, we can work it out to the satisfaction of all.
I hope the ex-officios get heard but more than that, I hope the Governor vetoes it. He has said he won't but I'm hoping he understands that such quick fixes which take away constitutional rights don't endear him to the national presidential pickers (a subset or two, anyway). Now, if he sends it back for some teeth while keeping our right to bail intact, perhaps we can all "sink our teeth into it;" eh, Guv?
How fast can an innocent man get out of jail in NJ these days? Well, if you took a solitary ant, saddled him with 70 times his weight in extra luggage, and asked him to circumnavigate Chris Christie's girth--all the while tabulating the location of the crumbs as it trudged through a coating of hot Fralinger taffy, the ant would travel a distance equal to that of from Trenton to the White House before you'd be released (on your own recognizance to await trial, no less) and (incidentally, I've also factored in the time the ant would need to evolve to actually do these things [OK, evolve with a little help from the friendly Mary Shelleys at Monsanto). We are told, however, that there are these progressive measures in the works. (See the Fiscal Analyst's description of the law if you want a more readable version)
"Bail is set at $__," "Bail is denied," groans or moans the judge. These are statements which all of us have in our memory banks. At least, those of us who have watched television or gone to movies in the U.S. So, it is easy to wonder why New Jersey would need bail reform and a constitutional amendment to allow a judge in New Jersey to say these very same things in "Real Courts of New Jersey."
Well, it seems that New Jersey has or has had some incarcerated citizens or residents awaiting trial for at least two years. Outrageous! So think most of us with empathy--including the ACLU and the Drug Policy Alliance who asked us to vote YES on the Bail Question. The primary reason for the despotic behavior is that people can't afford to pay the high bail that judges--erring on the side of caution rather than affordability--have been setting. Why are they so cautious? Judging by the wording of the bill, getting an alleged perpetrator into court is problematic unless you hold on to them with some government machinations. Judges know that few can afford bail and few have any choice but to remain incarcerated until their indictment/trial comes up. The new law is not so much an attempt at getting us a speedy trial as it is an attempt to give judges and prosecutors new tools to hold onto the suspect. The sad truth is that today, after this legislation, it is allowable for you to be incarcerated for over 9 months whereas in prior times, it might have easily led to indefinite detention--an improvement, no doubt, to all except the innocent who still see themselves as unreasonably subjected to a prolonged government's whim.
In reading the new law, you see the imprimatur of the NJ justice system writ large. Take, for instance, the following statement which occurs more than 20 times and is meant to ensure that a detainee, if released, "would not obstruct or attempt to obstruct the criminal justice system." This is obviously a catchall phrase. Under this, I, who espouse jury nullification, would never be released on my own recognizance (I don't consider it obstruction of justice but they would).
So, have we been sold out by the same organizations that promote civil liberties? You bet your ass, we may have been. Even the ACLU has it's doubts; while lauding the law, it made a point of saying that they were going to keep tabs on how it all plays out. They know it’s a crappy law in defense of the innocent because it lacks teeth (and the stem cell tech needed to correct the problem is nowhere in sight). What exactly have we lost, though? Our right to bail was in the Federal and the NJ State constitutions; now, it is lost in the latter. In fact, you are only entitled to bail if the courts determine that that is the only way you'll show up for trial. If they think they can keep you within the confines of your home with an ankle bracelet, for instance, that is what they will do--it doesn't matter that you might have the resources to pay for bail so that you can avoid that confinement or that ankle bracelet which you fear won't let you sleep at night.
Let us address the poor defendant unable to post bail. What does this law do for him/her? That is the million dollar question because it all depends on the actions of a government (top-heavy in government personnel, of course) committee that will draw up an instrument to determine if the defendant is likely to skip town, hurt someone, or attempt to obstruct the criminal justice system. That's where the Pre-trial Services Program comes into play and nothing is specified about it in the law other than 1.) its operating budget (22 million) and 2.) who is on the committee. On the committee and on behalf of the people, we have the aforementioned ACLU and DPA; but also, the NAACP, and the NJ Institute for Social Justice. Cute, isn't it? The law takes away from the citizen his right to bail, and leaves us with an as yet undefined "instrument" that is supposed to get poor defendants released but, regardless of what they come up with, this instrument will only be considered at the ipse dixit of the judge and prosecutor--neither are under any obligation to abide by the recommendations. Can someone else say Sisyphus?
As a testament to how despotic NJ law can be, it wasn't bad enough that defendants could still see 9 months in jail, the Mighty One in Trenton (I’m sure he had his prosecutorial hands in this) made sure that there were 13 cases in which the time spent by the defendant in jail would not contribute to total time spent. These are known as exclusions and the 13th one is a catchall "m. Any other time otherwise required by statute." This one is also a fine state of affairs: "(2) The failure by the prosecutor to provide timely and complete discovery shall not be considered excludable time unless the discovery only became available after the time set for discovery." If I understand this correctly, if the time for discovery is never set, the prosecutor can drag his feet all he wants and the defendant still rots in jail with no recourse. I have no legal expertise and this last item could be a case of making a mountain out of a molehill but it points out just how diligent the ex-officio members have to be to prevent this from becoming a total farce. My bet is that after the dust settles, the poor will still be spending an inordinate time in jail, those with money will lose their right to post bail, and rich and poor alike will be spending more money on court fees and whatnot (thank you fine legislators for limiting the increases to $50. It would be laudable if it weren't for the fact that the fiscal analysts are predicting 46 million in revenue; and, even that must be underestimated because just consider: with 85000 defendants a year, for every week we slice off their detainment (assuming we do), we save close to 11 million in meal costs alone (assuming $20 a day).
[This business of having a defendant (guilty or not) pay for court costs is akin to the Romans asking Christ to carry his own cross. I mean, we made the laws that got a non-violent offender arrested and we expect him to pay for it? We made the stupid draconian laws, we should pay the court costs. Maybe then we wouldn't be so quick to lock everyone up for minor, non-violent offenses. In any event, punishment should be separate from the rest of the process. "Oh yea, while we have you here, we're going to stick a night stick. . ," No, the punishment should be the punishment and nothing else or else the phrase, "innocent until proven guilty," has no meaning in U.S. society.]
Finally, I'd like to ask the ex-officio members this, If the Risk Assessment Instrument is expected to be the cure for the ailment, why can the justice system so easily flush it down their metal toilets? I hope to God that I'm wrong, honorable institutions, but you and the people may have been suckered!
If judges were setting high bail in order to ensure that defendants show up, we have to assume that that motivation is still in place. If so, what's going to stop them from pursuing detention for 9 months while the State of New Jersey gets around to paying for court machinery to handle the extra load--which they never would because what are we going to do with so many judges if we, one day in a calendar, I admit, far, far away, should decide to do away with the drug laws? Hey, perhaps 9 months will be the new lower average for non-violent offenses. That's one good thing I never considered.
I see why a judge is loath to work a legal assembly line. The field is one of the hardest of human endeavors and true justice requires much of the intellect but pressed for time, the judge ought to prioritize cases, and just release those that fall beyond his docket calendar for the next 30 days. That's a win-win. If you don't have the resources to prosecute quickly and fairly, you shouldn't make people wait for justice and they shouldn't accept punishment (detention) before they've been heard. If they can't be heard, put it on hold. Tally it up, three indictments and you get scheduled for trial--whatever; we are smart people and, we can work it out to the satisfaction of all.
I hope the ex-officios get heard but more than that, I hope the Governor vetoes it. He has said he won't but I'm hoping he understands that such quick fixes which take away constitutional rights don't endear him to the national presidential pickers (a subset or two, anyway). Now, if he sends it back for some teeth while keeping our right to bail intact, perhaps we can all "sink our teeth into it;" eh, Guv?
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