The United States criminal justice system through its longstanding implementation of cash bail favors what a person has in their wallet over the risk that they pose to society. When a person is arrested, they are charged with a crime and put behind bars (Rabuy and Kopf 2016). The proceedings can carry on in three different ways: they are denied bail, meaning that they are immediately detained, they are able to post bail and roam around until their trial date, or they are unable to pay the price of bail which results in pretrial incarceration (Harvard Law Review 2018). The weight of a person’s wallet determines how they are treated by the criminal justice system. This creates an immediate distinction between those who can afford to post bail and those who are unable to pay the price and as a consequence, are locked up in jail up until their trial date.
While the topic of monetary bail might sound niche, it affects seventy percent of the individuals locked up annually in local jails (Rabuy and Kopf 2016). The time that people spend behind bars as a part of pretrial detention comes with similar consequences to those of people who have been convicted of crimes serving jail time; they often experience a loss of jobs, shelter, an increased time spent away from family, great difficulty with reentry, and the trauma that they may associate with their experience in prison (Laisne, Wool, and Henrichson 2017). Conflict theorists can make the argument that individuals who are locked up pretrial are the real victims of the system. (Okada, Maguire, and Sardina). It can be effective to explore emerging methodologies which prioritize qualitative information from individual experiences over scientific data collection, as offered by race scholar (2005) Andrew C. Okolie. Antiracist pedagogy is at the very precipice of this change. Dr. Ibram X. Kendi (2019) defines an Antiracist as “one who is supporting an antiracist policy through their actions or expressing an antiracist idea.” In this definition, it is implicitly stated that it is not enough to be deemed “not racist, but rather, the only correct solution is to be actively antiracist. With this in mind, this essay will address the strides made by the radical New Jersey criminal justice system in its ability to eliminate the cash bail system, the flaws of the New Jersey system, the role antiracist pedagogy plays, and finally, the suggested policy solutions.
NEW JERSEY JAIL STATISTICS
According to data collected by the New Jersey census, Black men account for 44 percent of the population in New Jersey’s local jails (VanNostrand). This information becomes frightening when understanding that New Jersey census data taken within the same time period reflects that Black or African American people only account for 13 percent of the state’s population (New Jersey Population, 2010). Plain and simple: when Black and African American people are disproportionately represented in the local jail population, the system is broken.
RISK ASSESSMENT PROGRAM
The Garden state is hailed as a change maker in the realm of bail reform due to the decision to eliminate cash bail and shift to a risk assessment program as first outlined in policy 2014 and described in further detail in 2016 (P.L. 2014, Chapter 31; Directive No. 2016-6). In (C.2A:162-15 of P.L. 2014, Chapter 31) the initial policy, it is noted that the state is “primarily relying upon pretrial release by non-monetary means to reasonably assure an eligible defendant’s appearance in court when required,” and which prioritizes community safety. This law was the first step in prioritizing the rights of the individual and the community over the financial contribution they can make to the government.
In 2016, the Garden State proposed a risk-based assessment program through the Attorney General Law Enforcement Directive No. 2016-6, which eliminated cash bail and instead offers guidance in the judge’s decision as to whether or not a person will be detained pre-trial (Porrino, C. S.). The system is imperfect, regardless, it is held as the shining example of what an ideal criminal justice system can look like. The automated pretrial risk-assessment process as outlined by Directive No. 2016-6 (2016) considers the nature of the present offense and the history of the defendant, among other factors. The (Directive No. 2016-6) policy also specifies that the automated pretrial risk assessment process does not consider the specific facts of the case and rather, acts as a tool of discretion for New Jersey judges to have at their disposal. This system is a progressive step in correcting the criminalization of poverty which is perpetuated by pretrial confinement on the basis of being too indigent to post bail.
Expert Andrew C. Okolie argues that the antiracist research framework is a rejection of the traditional method known as Positivism, which has been celebrated by many scholars, one of the first being sociologist Emile Durkheim. Instead, Okolie argues, antiracist research is based in the historical-sociological method popularized by Karl Marx and Max Weber (Okolie, page 243-34). A way to differentiate a Positivist from a Historical-sociologist is that the former might suggest that people are born criminals, including people of color. To contrast, a Historical-sociologist may argue that multiple factors, such as policing in certain areas, living conditions, family or occupational background may lead to statistics that overrepresent people of color in statistics regarding drug-related offenses. With this understanding, Okolie explains, it is valuable for research and the policy, which is derived from it, be amenable to the individual lived experiences and how these experiences connect and differ. Antiracism, through this framework, gives individuals more discretion than the cold natural science extracted from Positivism (Okolie, 245).
Antiracist pedagogy is thought to be in direct opposition to Positivism because it rejects “the application of natural science methods to the study of social phenomena” which is a defining piece of the scientific-based theory (Okolie 2005). In contrast, the historical-sociological method requires less emphasis on data analysis; and instead, an attentive focus to individual experience.
FLAWS OF THE SYSTEM
While New Jersey has been regarded a changemaker in its elimination of cash bail, it is not exempt from all scrutiny. A 2018 “Report to the Governor and the Legislature” on criminal justice reform supports the unfortunate fact that New Jersey’s progressive risk assessment-based program is not financially sustainable and will “face an overall negative funding balance in the late fiscal year 2020 and early fiscal year 2021” (Grant, Glenn A.; Sullivan, S.P.). In other words, the system will be financially under water in less than a year. The New Jersey program which has abolished cash bail has effectively eliminated the main source of income for its Pretrial Services Program. While the 2014 criminal justice reform policy known as P.L. 2014, Chapter 31 deliberately increased court filing fees in an effort to overcome the loss of revenue once earned through the cash bail system, it has been unsuccessful in its effort to satiate the building structural deficit (Grant, Glenn A.). In the pursuit of an ideal justice system, New Jersey has built its pre-trial services program upon a shaky foundation. Radical change in legislative policy which provides the program with long-term financial security is the antidote to this crisis.
New Jersey has taken a valuable step in its elimination of cash bail. However, it is not financially sustainable and continues to disproportionately jail people of color (VanNostrand). In order for the New Jersey legislature to make effective policy, it must be antiracist. State representatives can achieve these ends through critical and constant evaluation of how their policy impacts citizens walking down the street. The decriminalization of marijuana should be considered as an antiracist solution to a mounting financial and racial issue. It is demonstrated in a New Jersey criminal justice report (VanNostrand) that people of color are convicted at higher rates for drug crimes, including marijuana. This is not because marijuana is a racialized drug that is used exclusively by people of color. Antiracist Dr. Abram X. Kendi (2019) would argue that the saturation of people of color charged with certain drug crimes is reflective of the tools of the system, which are flawed. It is suggested that the decriminalization and distribution of the drug can allow for it to be taxed and financially contribute to the mounting deficit produced by the New Jersey pretrial services program.
Further, it is valuable that the state legislature reviews the systems and policies which govern the criminal justice system; and flip them inside out to evaluate their racist crevices. The constant and critical review of New Jersey state laws with the goal of seeking equity and the active improvement of the lives of people of color is inherently antiracist. According to Dr. Kendi (2019), “the only way to undo racism is to consistently identify and describe it – and then dismantle it.” The New Jersey pretrial services program has effected positive radical social change; however, it is racist in its inability to address the longstanding wrongs of an overrepresentation of people of color involved in the criminal justice system. A better system, an antiracist one, actively works to suppress the policies which oppress and target marginalized groups; and instead build antiracist ones in their place. These ends can be achieved with the constant and critical self-evaluation of how to improve a broken system.
- Criminal Law–Bail Reform–Supreme Judicial Court of Massachusetts Holds That Judges
Must Issue Findings of Fact When Setting Unaffordable Bail for Indigent Defendants.
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