From Bright Plots to Blind Spots: Mapping Departures in Case Review Post-Bail Reform in Two New Jersey Courts

• Published date: 01 January 2021
• DOI: 10.1177/0093854820960504
• Date: 01 January 2021
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2021, Vol. 48, No. 1, January 2021, 96 –115.

DOI: https://doi.org/10.1177/0093854820960504

Article reuse guidelines: sagepub.com/journals-permissions

© 2020 International Association for Correctional and Forensic Psychology

96

FROM BRIGHT PLOTS TO BLIND SPOTS

Mapping Departures in Case Review Post-Bail

Reform in Two New Jersey Courts

ANDRES F. RENGIFO

SOFÍA G. FLORES

Rutgers University —Newark

ASHLEY N. JACKSON

Washington University in St. Louis

This study documents the extent to which prosecutors and judges in New Jersey deviate from new case review protocols

post-bail reform. We draw on a random sample of hearings observed in two courts (N = 372) to (a) map prosecutorial

requests to depart from risk-based recommendations for pretrial monitoring and (b) explore patterns in judicial review

signaling more limited case processing. Findings show that in 16% of cases, prosecutors deviated from guidelines and

most of these motions were adopted by judges to increase supervision. Deviations from process by judges were more

frequent, with 39% of cases observed linked to one or more markers of reduced review. Multivariate results suggest

that case-level factors influenced the patterning of these departures in different ways, with older defendants and most

Latinx defendants receiving a more limited assessment of their cases. We discuss findings in connection to literature on

corrections reform and smart decarceration initiatives.

Keywords: criminal justice system; law; punishment; decision-making; implementation

Cash bail is changing. In the past 10 years, states across the country have modified key

protocols related to monetary conditions and other rules governing pretrial release

and case review (National Conference of State Legislatures, 2018). Although there is

heterogeneity in strategies for implementation, these reforms have been prompted by

similar concerns about disparities in process and punishment (Koepke & Robinson,

2018). As noted by research and policy, pretrial incarceration is a critical component in

the reorganization of justice systems, given its cumulative effects where persons trapped

into cycles of poverty and detention are more likely to receive harsher decisions (Cohen

& Reaves, 2007; Gupta et al., 2016).

AUTHORS’ NOTE: We would like to thank Popy Begum, Katherine O’Toole, Luis Torres, and Dale Dan-

Irabor for their research assistance in the completion of this project. Correspondence concerning this article

should be addressed to Andres F. Rengifo, School of Criminal Justice, Rutgers University—Newark, 123

Washington Street, Newark, NJ 07102; e-mail: arengifo@rutgers.edu.

960504CJBXXX10.1177/0093854820960504Criminal Justice and BehaviorRengifo et al. /

research-article2020

Rengifo et al. / MAPPING DEPARTURES IN CASE REVIEW 97

There are “bright plots” of evidence pointing to the success of new initiatives target-

ing cash bail practices and other preadjudication decisions (New Jersey Judiciary Court

System [NJJCS], 2019; Stevenson, 2018). However, the empirical foundation describ-

ing emerging practices is surprisingly thin. In particular, studies of the implementation

of new models remain scarce (Stevenson, 2018, p. 336), with adaptation to updated

mandates remaining “sorely underexamined” (Koepke & Robinson, 2018, p. 1805).

With some exceptions (DeMichele et al., 2018; Eckhouse et al., 2019), little is known

about the dynamics of pretrial hearings across local actors and jurisdictions including

the evolving influence of case-level legal factors—statutorily relevant information such

as the seriousness of the charges—and extralegal factors—variables such as a defen-

dant’s race or gender—that are excluded from legal decision-making. These “blind

spots” are not specific to reforms of pretrial systems. Process remains a critical gap in

the implementation of evidence-based policies (Viglione, 2017, p. 1357) and smart

decarceration programs (Pettus-Davis & Epperson, 2015), despite studies noting that

line-staff or managers condition the transformative potential of new models (Lynch,

1998; Rengifo et al., 2017; Rudes, 2012). The shortage of courtroom-based data and

theory is acute in the case of prosecutors and defense attorneys relative to judges

(Laskorunsky, 2018), with little known about how new models shape their exchanges

and behaviors (Yule & Schumann, 2019).

Addressing these issues is critical to map the mechanisms that may account for the

relative success of pretrial reform. A more explicit focus on courtroom actors and inter-

actions also enables the examination of the path-dependent routines that blend change

with established practices (Beckett, 2018; Verma, 2015). This specification is important,

given that the adoption of new policies is patterned by strategies that are “more complex

and contradictory than much of the theoretical literature has assumed” (Hannah-Moffat

et al., 2009, p. 393). This includes, for instance, changes in case-level cues used to

assign danger or blame, and their integration with broader forms of institutional bias

(Gonzalez Van Cleve, 2016; Omori & Lautenschlager, 2018).

This study contributes to this literature by exploring how case processing in the courts

has been reshaped by a reorganization of pretrial protocols. We answer two interrelated

questions: First, how do judges and prosecutors adapt their actions and exchanges to new

guidelines for open case review and pretrial monitoring decisions? Second, to what extent

are these responses shaped by defendant-level legal or extralegal factors? To address

these questions, we document departures in a random sample of supervised release hear-

ings observed in two New Jersey courts. In particular, we map prosecutorial requests to

modify monitoring levels recommended by a new risk assessment process and examine

their subsequent adoption. In addition, we measure the range of engagement by judges

through case review protocols during hearings, such as whether they openly communi-

cated risk scores and monitoring conditions to defendants. These two forms of circum-

vention reflect specific practices tied to the new local decision-making framework and to

the functional roles of prosecutors and judges. Whereas the former act by formulating

supervision requests, the latter act by adjudicating motions and framing case processing.

More generally, our approach seeks to better specify how exchanges among courtroom

actors not only “jointly produced discretionary decisions” (Ulmer, 2019, p. 485) but also

anchor new regimes of “risk governance” (Hannah-Moffat, 2018, p. 7).