Criminal Justice Reform in New Jersey – New Bail Procedure is in Effect as of January 1, 2017

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.

Further, the new procedures create a hierarchy for different forms of pretrial release.  The majority of defendants are supposed to be released on their own recognizance (or “ROR’d”), if the court finds that it is reasonably likely that s/he appear when expected to do so; that there is minimal, if any, risk to the community at large; and that the defendant will not obstruct the criminal justice process.  However, the judge making the release decision will have the discretion to set a monetary bail in what is anticipated to be limited circumstances.  Further, on a motion by the State, and after finding that no amount of monetary bail, non-monetary conditions, or a combination of both, can assure the defendant’s appearance in court, protect the community, and prevent the defendant from interfering with the criminal justice process, the court can order the defendant to be detained until trial or other resolution of their case.  Thus, the options available to the judge reviewing the bail issue are as follows:

  1. ROR;
  2. ROR with non-monetary terms and conditions;
  3. Monetary bail;
  4. Monetary bail with terms and conditions; and
  5. Detention (upon motion by the State).

The court can order detention only when it finds by clear and convincing evidence that no conditions of release can satisfy the three goals noted above.  The State can file a detention motion at any time.  The hearing can be held within three days, but the defense can request five.  The defendant can remain temporarily detained until the hearing.  If the court orders that the defendant must remain in detention, the speedy trial clock will start to run, and it is expected that the defendant will be tried within 180 days.  Factors in the court’s decision on the detention motion include: the nature and circumstances of the charged offense; the weight of the evidence against the defendant; the defendant’s history and characteristics including, without limitation, whether the defendant was on some sort of supervision (e.g., probation) at the time of the offense; whether the defendant presents a danger to the community; and the risk assessment score.

The remainder of the reforms, which implement speedy trial, will be the subject of a future post.

James S. Friedman, LLC is a full-service criminal defense firm centrally located in New Brunswick, New Jersey.  We represent defendants in criminal cases in all state, federal and municipal courts in New Jersey, as well as the state and federal courts located in New York City.  If you have been charged with a crime, your first conversation should not be with law enforcement – it should be with us.


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