New Jersey Criminal Justice Reform
In November 2014, the People of New Jersey voted to amend the State Constitution with respect to bail in article I paragraph 11. In what I believe was a rare instance of actually listening to the Will of the People, the New Jersey legislature enacted the Bail Reform Act, N.J.S.A. 2A:162-15 to -26. Accordingly, New Jersey criminal justice reform took effect on January 1, 2017.
Indeed, these constitutional and legislative changes represent major reform, with the intent of promoting public safety and fairness.1 Thus, New Jersey criminal justice reform with respect to bail favors pretrial release, optional release conditions, and monitoring for defendants who pose little risk of flight or of committing another offense. Additionally, the new landscape involves a risk-based approach instead of monetary bail. Furthermore, the law incentivizes prosecutors to consent to this.
Of course this has caused concern for law enforcement authorities, from police on the street to the highest levels of the Executive Branch. Without dismissing their concerns out of hand, the law permits judges to order high-risk defendants detained pretrial without bail. But the court cannot order pretrial detention unless the State presents proof to justify it. Thus, the prosecuting authority must be willing to go to the effort to overcome additional burdens.
An Amended New Jersey Constitution
The amended New Jersey Constitution provides,
All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.
[N.J. Const. art. I, ¶ 11 (amended effective 2017).]
The constitutional amendment came about when policy makers and the general public learned of the many defendants detained pretrial because they could not afford relatively small amounts of bail. Though not statistically significant, I have represented indigent clients who could not post a couple hundred dollars bail. Furthermore, reliance on money bail yielded absurd results in the view of policy makers. For example, it led to the pretrial release of high-risk defendants without appropriate individual assessments.1
Purpose for Bail Reform
Bail traditionally accomplished its purpose of guaranteeing a defendant’s appearance in court by holding money over the defendant’s head. A defendant who failed to appear risked losing this money in addition to his freedom. If the defendant did not have sufficient funds, he could seek the services of a bail bondsman. Subject to strict government regulation, in exchange for a fee the bail bondsman issued an insurance policy. If the defendant used a bondsman, then one condition of release required the defendant to maintain regular contact with the bail agent. And a failure to appear triggered a person duty for the bail bondsman to retrieve the fugitive.
Under the Bail Reform Act, monetary bail is only a last resort. Instead, this aspect of New Jersey criminal justice reform relies on pretrial non-monetary release to reasonably assure an eligible defendant’s appearance in court. Second, the new law protects the safety of any other person or the community. Third, the eligible defendant must not pose a risk of obstructing or attempt to obstruct the criminal justice process. Additionally, the court must be assured an eligible defendant will comply with all conditions of release. 1, 2
Quid Pro Quo: Pretrial Detention in exchange for Procedural Burdens
The law allows a court, upon motion of a prosecutor, to order pretrial detention. But the court must find no condition or combination of conditions reasonably assure the achievement of the Bail Reform goals based on clear and convincing evidence.1, 2 And the Court may order money bail only as a last resort when no other conditions of release will reasonably assure the eligible defendant’s appearance in court.1, 2
1 State v. Habeeb Robinson, _____ N.J. Super. _____ (App. Div. 2017).
2 N.J.S.A. 2A:162-15.