ACLU Wants NJ To Push Forward On Incarceration Reforms

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The American Civil Liberties Union of New Jersey urged state officials on Wednesday to continue efforts to decrease incarceration by eliminating mandatory minimum sentences, expanding clemency and compassionate release, and decriminalizing drug offenses.

Announcing a new report and recommendations, the ACLU said prison data shows that policy changes and litigation have contributed to a sharp reduction in the state's prison population — all while violent crime has dropped — but that "more needs to be done" to reduce racial disparities and reliance on prisons overall.

"Reducing our prison population is surely about liberty and freedom," Amol Sinha, the executive director of the ACLU of New Jersey, said during a virtual press conference. "It's also about our moral compass as a state. It's about racial justice, economic opportunities, civic participation, healthier communities and more: It's about dignity and humanity."

Sinha said advocacy by the ACLU and partner organizations pushed the state to make "enormous strides" in reducing incarceration in recent years.

"There's a lot to be proud of in New Jersey, but we haven't yet reached our potential," he said.

The ACLU lobbied for a law, which New Jersey lawmakers passed at the height of the COVID-19 pandemic, that allowed the early release of nearly 9,000 people from prison, 62% of whom were Black.

The organization argued a landmark case, State v. Comer, where the New Jersey Supreme Court ruled in 2017 that sentencing juveniles to prison terms that are the practical equivalent of life without parole is unconstitutional. Following the ruling, nearly 100 young prisoners filed petitions for early release, the ACLU said.

The legalization of cannabis and the enactment of a sweeping bail reform bill that drastically reduced the number of people detained pretrial have also resulted in fewer people behind bars, the organization said.

"Efforts like these have helped New Jersey reduce its prison population by more than 50 percent since 2011," the report says. "But at its core, New Jersey's carceral system remains rife with injustice."

New Jersey has the highest rate of racial disparity in the country for people in prison, with a ratio of 12 Black prisoners for every white one, according to U.S. Bureau of Prison data studied by the Sentencing Project, a nonprofit advocating for decarceration.

Insha Rahman, the vice president for advocacy and partnerships at the Vera Institute of Justice, a nonprofit focused on ending mass incarceration, called the racial disparities "staggering and unacceptable" and said incarceration was counterproductive for public safety.

"Even a day in jail can be so destabilizing. Somebody loses their job, their housing, their connection to their family, the things that make people safe, the things that make people able to be productive members of society," she said at the news conference. "What New Jersey has proven is that you can in fact have both safety and justice. You can reduce the number of people behind bars and be safer and have more healthy, thriving communities as a result."

New Jersey is one of nine states that have significantly lowered their prison population in recent years. According to the report released Wednesday, the number of people locked up in New Jersey's prisons has declined by more than 45% since 2017, with a 31% drop from 2020 to 2022 alone.

The data show that the Garden State has relied on less frequent incarceration to punish offenders convicted of nonviolent crimes. For instance, the percentage of prisoners convicted of drug crimes in 2020 was 15%. In 2022, it had fallen to 9%.

Other metrics show that the state is less likely to incarcerate people convicted of less serious offenses. From 2017 to 2022, the portion of incarcerated people serving terms of up to five years fell 43%, to about 30%. Meanwhile, the share of people serving sentences of 15 years or longer went up from roughly 27% to nearly 37% during the same period.

Bail reform in New Jersey, which nearly eliminated cash bail and reserved prison only for the most serious offenders, ushered in a sharp drop in the number of people being locked up before trial, from about 9,000 in 2014, the year bail reform was enacted, to about 4,000 in early 2000 just as the pandemic was beginning. That number has steadily increased since then, and it was about 6,900 in 2022. ACLU advocates said the increase showed that the state was continuing to emphasize incarceration.

Alexander Shalom, the ACLU-NJ's director of Supreme Court advocacy, said that despite strong evidence that people were showing up for court at higher rates and were rarely committing serious offenses while on pretrial release, politicians have continued to paint bail reform as conducive to crime. He warned that the state Legislature was considering proposals that would roll back the successes of the law, which took effect in 2017. 

"With more than five years of full data, it's clear that bail reform has been a resounding success," Shalom said at the news event.

But bail reform is not universally supported. New Jersey Republicans fought to prevent some of the changes from taking effect after the law was enacted. And in January, the Republican mayor of Middletown, Tony Perry, sued the state over bail reform, saying it had led to a huge increase in auto thefts.

 Even some Democrats want the bail statute adjusted.

One, Paterson Mayor Andre Sayegh, wants a tweak to permit the pretrial detention of people caught with guns. "We're not looking to end it, we're looking to amend it," Sayegh told local media in February 2022. "Those who are arrested with illegal weapons are detained, so they're not back on the streets either doing the shooting or becoming the next shooting victim." 

In the report, the ACLU urged state lawmakers to eliminate mandatory minimums, which the organization said have fueled longer prison sentences and exacerbated racial disparities without improving public safety. All 50 states and the District of Columbia have mandatory minimum laws.

"We must end mandatory minimums. This is something, by the way, that the bipartisan Sentencing Commission has recommended but yet the Legislature has not been able to come together with the governor to reach an agreement," Shalom said.

The data collected in the report shows that the state's prison population has grown older. In 2017, about 9% of incarcerated people were 55 or older. By 2022, that figure had jumped to 14%, according to the report.

"We have a lot of people in prison and a lot of them are old," Shalom said. "That's one of the easy places that we can kind of safely decarcerate."

The ACLU said in the report that New Jersey's legal requirements to obtain compassionate release, under which incarcerated people can be released due to extraordinary or compelling circumstances that were unknown or unforeseen during the time of sentencing, are too hard to meet.

To be eligible, a prisoner must have a prognosis of six months or less to live or a permanent physical incapacity. Even when the threshold is met, prisoner release is "exceptionally rare" the report says.

"Such high standards unnecessarily keep people incarcerated," the report says. "By expanding opportunities for compassionate release, New Jersey can further reduce its prison population."

Clemency, a separate process in which governors, the president or administrative boards reduce a prisoner's sentence through a commutation or pardon, is also underused in New Jersey: from 1994 to January 2022, only 105 people received clemency in the state, the ACLU said.

The report proposes using categorical clemency — clemency extended to groups of people based on shared characteristics — to further reduce incarceration, pointing to large clemency actions in several states as examples of its successful application.

The ACLU said clemency enjoyed bipartisan support. According to a report the organization issued last year, more than two-thirds of voters across party lines support it.

In 2019, Gov. J. B. Pritzker of Illinois pardoned more than 11,000 people convicted of low-level marijuana offenses. In November, Gov. Kate Brown of Oregon pardoned 45,000 people convicted of simple possession of marijuana. In Pennsylvania in 2021, Gov. Tom Wolf commuted the sentences of 13 people who were convicted under the state's felony murder law. And Texas introduced a new clemency application for survivors of domestic assault and human trafficking, the report says.

"Categorical clemency is a commonsense way to reduce our incarcerated population and reduce racial disparities in our prisons," the report says. "Importantly, while our nation is starkly divided on many major issues, clemency is popular across the board."

Finally, the ACLU recommends decriminalizing drug use as a way to decrease the prison population. According to Wednesday's report, in 2019, more than one in five arrests made by police departments was drug-related.

Before cannabis was officially legalized in 2021 — it was approved by 67% of voters through a referendum in November 2020 — more than 35,000 people were arrested for marijuana-related offenses each year in the state. Black people were arrested at a rate 3.5 times higher than white people for marijuana possession, despite similar usage rates, according to the report.

"By legalizing cannabis, New Jersey took a step toward doing just that — but it must go further," the report says.

The ACLU proposes shifting away from punishment and treating drug use as a public health matter. The organization said harm reduction and voluntary treatment should be made accessible to all people who need it. The state should also invest resources directly in those communities that were most affected by the war on drugs, the report says.

"We've done strong work on decriminalizing and legalizing cannabis, but we want to go further," Sarah Fajardo, the policy director of the ACLU of New Jersey, said during the press conference. "Rethinking our approach to policing as an on-ramp to the criminal legal system is critical."

--Editing by Karin Roberts.

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