THE NEW YORK TIMES

New Jersey Is Front Line in a National Battle Over Bail

By ALAN FEUERAUG. 21, 2017

Less than a year after New Jersey established a
sweeping new law that all but eliminated cash
bail, the state has found itself facing a
challenge familiar to others that have overhauled
their bail systems: an energetic legal attack from the bail industry.

In June and July, two lawsuits were filed in
Federal District Court in New Jersey challenging
the statute, the Criminal Justice Reform Act,
which took effect on Jan. 1. While the suits have
taken different legal tacks, they do have
something in common: one was filed by a large
corporate bail underwriter and the other has
received support and publicity from professional
bail agents. Both parts of the bail industry have
said that their profits have plummeted since the law took effect.

New Jersey is among a handful of states where
courts and government officials have begun in
recent years to modernize — and in some cases,
abolish — the assignment of cash bail, which
critics say discriminates against defendants,
many of them black and Latino, who cannot afford
to pay. The New Jersey law, which was designed to
keep the poor from languishing in jail —
especially for minor offenses — has put the state
at the forefront of a growing national movement
toward major change and was notable for having
the support of its Republican governor, Chris Christie.

But the movement has occasioned resistance from
the bail industry, which has launched an
assertive effort to preserve the practice — and
its own commercial interests. The Bail Bond
Association of New Mexico, for instance, filed
suit against the state on July 28, challenging a
set of State Supreme Court rules governing bail
that were passed just weeks before.

In January, Paul D. Clement, a lawyer who once
served as United States solicitor general,
testified on the industry’s behalf at a hearing
in Maryland against that state’s new rules.
Lawyers for the industry have also submitted
amicus briefs in recent months in cases in
Atlanta, Houston, New Orleans and San Francisco,
trying to stop civil rights groups from suing in
the federal courts to overhaul bail in those cities.

Concern about the changes has reached such a
pitch among the country’s bail bondsmen that the
president of the Professional Bail Agents of the
United States, an industry trade group, issued
what she called “A Declaration of War” in the group’s August newsletter.

“We have the responsibility to stand against the
forces of tumult and division,” wrote the
president, Beth Chapman, who is married to the
former star of the TV show “Dog the Bounty
Hunter,” Duane Chapman. “We must stand united and
strong, willing to fight back and wage war
against the special interests who would destroy
law and order in this country to advance their radical agenda.”

In the middle of the fight, the two suits in New
Jersey have attracted attention not only because
they are especially aggressive, but also because
they may become a bellwether for other states
that are trying to fend off attacks on bail reform.

“I think the reason you’re seeing such intensity
by the bail industry to undermine reform in New
Jersey is that it will have an effect on the
national landscape,” said Alexander Shalom, a
lawyer for the American Civil Liberties Union who
is helping state officials defend themselves in
one of the cases. “The industry is upset about
losing business in New Jersey. But the bigger
problem is: If there’s successful reform in New
Jersey, it can be replicated elsewhere.”

The first New Jersey suit was submitted by Mr.
Clement in June on behalf of the Lexington
National Insurance Corporation, a bail
underwriter in Maryland, which, like others in
the field, assumes the ultimate financial risk
from local bail bondsmen if defendants do not
appear in court. Filed as a class action, its
named local plaintiff is Brittan B. Holland, a
New Jersey man who was charged in April with
assault after being accused of beating up two
patrons of a tavern in Winslow Township during a fight over a football game.

According to the suit, Mr. Holland wanted, and
had the means, to post cash bail with the help of
a bondsman, but under the new state law he was
released from jail after being fitted with an
electronic ankle bracelet — or what the suit
referred to as “a modern-day scarlet letter.”
This led to “severe deprivations of liberty,” the
suit claimed, including home detention, the fact
that the government could track Mr. Holland 24
hours a day and a requirement that he report to
court officials every two weeks. Oral arguments
in the case will be heard in Federal District Court in Camden on Tuesday.

The second suit was filed on July 31 by June
Rodgers, whose son Christian Rodgers died in
April after being shot 22 times in Vineland by a
felon who had been released on bail for a weapons
violation. In the suit, Ms. Rodgers claimed that
the state’s new bail law “created a system where
African-Americans in New Jersey,” like her son,
received “disparate treatment.” The suit also
blamed Governor Christie and the Laura and John
Arnold Foundation, a social-justice organization
that created a tool for assigning bail that was
incorporated into the law, for violating her 14th
Amendment due process rights, including “the
right to companionship with her son.”

The day the suit was filed, the Chapmans appeared
at a news conference in Trenton announcing the
litigation. Mr. Chapman stood in front of the
cameras attacking New Jersey’s “dangerous, fake
reform” of bail, which, he said, had been in
effect for 200 years. Ms. Chapman added that
“people are not in jail because they’re poor —
they’re in jail because they broke the law.” In
pursuing her case against the state, Ms. Rodgers
is being represented by Nexus Caridades, a pro
bono law firm that is funded by a company called
Nexus that offers services to immigrants who need bail.

Jeff Clayton, the executive director of the
American Bail Coalition, a national organization
of bail underwriters, questioned the premise of
the changes by saying that the various laws and
rules across the country were damaging public
safety — a notion that officials in New Jersey
and elsewhere have disputed. Mr. Clayton also
said that there were constitutional problems with
the overhaul efforts not only under the 14th
Amendment, but also under the Fourth Amendment,
which prohibits unreasonable searches and
seizures, and the Eighth Amendment, which guards against “excessive bail.”

But Alec Karakatsanis, a lawyer for Civil Rights
Corps, a nonprofit organization that has been
involved in several of the bail cases, called the
cash-bail system “a catastrophe,” adding, “It’s
enormously unjust and enormously costly.”

“And now that’s it being scrutinized by people
and the government,” Mr. Karakatsanis said, “I
don’t think the industry’s efforts to fight this movement will succeed.”

https://www.nytimes.com/2017/08/21/nyregion/new-jersey-bail-reform-lawsuits.html?mwrsm=Email