New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Bail

Everyone here is scrambling to implement the criminal justice reforms that become effective on January 1, 2017.  As stated in a previous posting, the new laws and procedures change New Jersey’s criminal justice system in many significant ways.

The new bail procedure departs substantially from current law.  Under the current system, a defendant’s pretrial release depends their ability to post a monetary bail.  Under the new procedure, pretrial release will depend upon the extent of the risk that the defendant will not appear in court when s/he is supposed to do so, and whether the defendant poses a danger to the community.  The reforms address a problem known to exist for a long time.  Under current procedure, defendants who do not present any meaningful risk to the community can remain in jail throughout their case only because they cannot afford to pay even a minimal bail, whereas defendants with more significant resources can afford to post bail even if they are a flight risk, or are perceived as dangerous.

Under the new system, when a defendant is arrested on a complaint-warrant, the judge setting bail will use an objective, validated risk assessment tool developed by the Laura and John Arnold Foundation to assess the risk that the defendant will be arrested for a new offense; be arrested for a new violent crime; and fail to appear in court when required to do so.  The assessment is designed to be race and gender neutral.  Based upon the risk assessment score, the defendant will be classified as low, moderate or high risk, and the judge will then set the terms and conditions of pretrial release accordingly.  The decision to release or incarcerate the defendant must be made within 48 hours.  The courts will, however, be trying to make this decision within 24 hours. Continue reading

Major changes to the processing of criminal cases in New Jersey will take effect on January 1, 2017.  On the surface, these changes address two areas of criminal practice: (a) pretrial release and bail; and (b) speedy trial.  However, it is anticipated that these changes will ultimately affect virtually every aspect of a New Jersey criminal case.  This post is the first of a series addressing criminal justice reform in New Jersey.

Pretrial Release and Bail – Criminal cases in New Jersey are commenced with the issuance of a Complaint-Summons or Complaint-Warrant.  As under the current system, defendants receiving Complaint-Summonses will simply get a court date, and then be released.  However, the new procedures significantly affect defendants who receive Complaint-Warrants.  Under the existing procedure, these defendants are given a dollar amount that they must post for bail.  They are released if they can post that bail, and remain in custody if they cannot.  The primary issue that the changes to the current system seek to address concerns defendants who receive low bails (often as low as $500.00), but are forced to remain in jail – sometimes for months, if not longer – because they cannot afford it.  The changes focus upon two problems that result from jailing this group of defendants.  First, these defendants, whose economic circumstances are often fragile at best, frequently lose their jobs and their homes as a result of prolonged incarceration.  Further, jailing people costs money, and the State, the counties and the municipalities, cannot afford it.  Thus, the changes are designed arrange for the prompt release of non-violent defendants who are not flight risks so that they do not face the consequences of needless incarceration stemming from their inability to pay even a modest bail, and to conserve public funds that could be better spent elsewhere.

The new procedures result in a shift from a system of pretrial release and bail that is based upon a defendant’s economic resources to a system that focuses more on an assessment of the likelihood that a defendant will appear for court when instructed to do so, as well as the danger they present to the community if they are released while their case is pending.  These procedures represent a substantial departure from current bail practice in New Jersey.  The precise mechanics of the new bail system will be the subject of a future blog post.

One of the first decisions made in any criminal case involves setting bail.  In New Jersey state courts, the initial bail is frequently set by a municipal court judge.  This judge will decide if the defendant will be required to post bail or be released on their own recognizance.  If bail is required, the judge will set the required dollar, as well as related terms and conditions.   These will include, among other things, whether the defendant will be required to post the entire amount of the bail, be permitted to use a bondsman, or be allowed to post 10% of the face amount of the bail with the Court which will enable the defendant to avoid paying a fee to the bondsman and possibly allow for the recovery of the amount posted when the matter is concluded.  In some cases, the judge may determine that the defendant must post the entire bail on their own.  Generally speaking, municipal judges tend to set high bails.  If the defendant cannot afford the bail as set by the municipal judge, s/he must remain incarcerated until an attorney can file a motion to review the bail and have it heard by a Superior Court judge who will determine if it is appropriate under the circumstances.

For over two years, Jonathan Lippman, New York State’s Chief Judge, has been advocating for changes to New York’s bail statute, which was enacted in 1970.  Some of his suggestions, driven by his concern that many people remain incarcerated while their case is pending simply because they cannot afford the bail set in their case and are therefore penalized for being poor, are noteworthy and merit consideration by New Jersey and other jurisdictions.

New York’s situation is probably similar to that in other states.  Approximately 50,000 people jailed each year in New York City cannot afford the initial bail set in their case.  More than half of these defendants remain incarcerated while their case is pending.  Four out of 10 Rikers Island defendants are in jail because they cannot afford their bail. Continue reading