New Jersey Bail Reform Act

Bail as we know it in New Jersey is going to change starting in January of 2017. The Pretrial Services Program, abbreviated PSP, aims to assure court appearance of a defendant, and on a larger scale, to limit the potential for obstruction of the criminal justice system in the state of New Jersey. PSP is a temporary detention of those committed to county jail. During the detention, the program prepares a risk assessment of the defendant, containing recommendations directing the conditions of the defendant’s release from jail. A computerized risk assessment tool will be used by police to determine whether the defendant is a low, moderate, or high risk to the community and the criminal justice system. A numerical score will be assigned to the defendant, indicating which of the three risk levels to which the defendant corresponds. As used in the decision for determining a bail amount currently, a suspect’s criminal record will also be considered in risk assessment. The decision for pretrial release is required to be made no later than 48 hours after the defendant is committed to jail.

There are five types of pre trial release that will be implemented under this new system. The tiered types of pretrial release are as follows: “ROR” (released on your own recognizance) or no bail set, a non-monetary condition, monetary bail (used mainly to ensure appearance), monetary bail with conditions (more extensive than monetary bail without conditions; specifically includes the protection of an individual or the community), and detainment in jail upon motion of a prosecutor pending a pretrial detention hearing.

In November of 2014, a constitutional amendment approved by state voters was passed that allowed for the development of pretrial detention. However, before pretrial detention may occur, the prosecutor must seek the detention of an eligible defendant by filing a motion. The court is additionally required to hold a hearing on the motion. It is during this hearing that the defendant has the right to counsel, testify, and to present information by proffer or otherwise. The hearing will take place before a Superior Court judge, no later than the eligible defendant’s first appearance, unless the defendant or prosecutor seeks a continuance. If the motion is filed after the first appearance, the hearing must be held within three working days of the date that the prosecutor’s motion is filed. Any continuance that may prolong time before the hearing date may not exceed five days for the defendant, and similarly, may not exceed three days for the prosecutor. Weekends and holidays are not included in these time frames.

Crimes eligible for detention include 1st or 2nd degree No Early Release Act (NERA) cases, crimes carrying an ordinary or extended term of life imprisonment, any crime if the defendant has been convicted two or more times under either of the preceding offenses, any crime enumerated under paragraph two of subsection b of the Megan’s Law offenses, or any crime involving endangering, or human trafficking when the victim is a minor, any Graves Act crime, any crime or offense involving domestic violence as defined in N.J.S.A. 2C:25-19, N.J.S.A. 2A: 162-19(a)6, and finally, for any other crime for which the prosecutor believes that there is a serious risk that the eligible defendant will not appear in court as required, will pose a danger to another or the community, and/or will obstruct or attempt to obstruct justice, or threaten, injure, intimidate or attempt to threaten, injure, or intimidate a prospective witness or juror. This is a catchall phrase that will be contentious among defense lawyers and prosecutors.

The court is to find “clear and convincing” evidence that no amount of monetary bail, non-monetary conditions, or the combination thereof would reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community or that the defendant won’t obstruct or attempt to obstruct the criminal justice process. At the detention proceedings where there is no indictment, the prosecutor must establish such probable cause that the defendant committed the offense.

In the court’s determination of the detention decision, the court may consider the nature and circumstances of the offense, the weight of the evidence, the history and characteristics of the defendant (i.e. character, physical and mental condition, family ties, whether the defendant was on probation, parole, etc.), the nature and seriousness of the danger to any other person or the community, the nature and risk of obstructing or attempting to obstruct the criminal justice process, and the release recommendation of the PSP, obtained using a risk assessment instrument. The guidelines of the bail reform are groundbreaking in the sense that they newly permit judges to consider whether a defendant is a danger to the community; previously, the focus rested primarily on whether the defendant was a flight risk. It is important to note that a detention hearing may be reopened at any time before trial if new information surfaces that wasn’t known at the time of the hearing, and has a material bearing on whether the defendant will appear, or be a danger, whether to the community, or to the criminal justice process. If the court does not order detention, the court shall order release pursuant to the provisions of the bail law.

The core change of the bail reform revolves around the purpose by which those who have committed crimes will be considered for release from jail. The bail reform will ensure that those who have committed dangerous crimes will be detained accordingly, and that those who have committed lesser, comparatively non-threatening crimes will not be held in jail simply because they cannot afford to post bail. Previously, those who committed crimes and were financially able to pay bail were released, while those who could not afford their bail were incarcerated. State officials note that the reform will call for an increase in the additional staff and funds needed to handle the increasing demands of the bail reform. While the state expects a surge in the number of employees needed to manage the new system of bail reform, it is the bondsmen whose employment numbers are expected to decrease under a system that will dramatically restrict the bail system from which bondsmen profit.

The counties of Morris, Sussex, Camden, and Passaic were to be the first to begin use of the new bail reform procedures as a sort of “pilot program.” Use of the new procedures within these counties was set to occur in March of 2016, ahead of the rest of the state. Yet due to the expected high costs of the new system reform, and the financial demands that were to be imposed on each county, suggestions have been made to delay the reform until 2018. The funding source for the bail reform is to be the responsibility of local tax payers. Although approved by voters in 2014, the constitutional amendment did not explain how the state would fund the new law, which is expected to cost New Jersey’s twenty-one counties a collective $50 million by 2017. To counteract the financial burden imposed by the reform, The New Jersey Association of Counties has proposed a bill that seeks to increase criminal and civil court fees. The increase in such fees would cover the new costs of the bail reform, but has yet to be approved by the state.

The impending bail reform is considered to be a major shift in the manner that courts address criminal behavior and its associated consequences. If you or a family member have questions regarding the bail reform, and would like to know how to navigate the new system, please feel free to contact our law office to guide you through the new process.