New Jersey Bail Reform

New Jersey Bail Reform, Fourth Amendment, Article 1 Paragraph 7, Article 1 Paragraphy 11, N.J.S.A. 2A:162-16(c), N.J.S.A. 2A:162-16(a); N.J.S.A. 2A:162-25, N.J.S.A. 2A:162-16(b)(1); N.J.S.A. 2A:162-17, N.J.S.A. 2A:162-18, -19, N.J.S.A. 2A:162-19(d), N.J.S.A. 2A:162-19(d)(2), N.J.S.A. 2A:162-19(e), N.J.S.A. 2A:162-19(e)(1)Previously I blogged about criminal justice reform in New Jersey. Notably, the People of New Jersey voted in 2014 to amend the State Constitution with respect to bail. Subsequently, the New Jersey legislature responded with criminal justice reforms as to bail and speedy trial. This post will explore some aspects of New Jersey Bail Reform.By way of this introduction, eligible defendant means a person for whom a complaint-warrant is issued for an initial charge involving an indictable offense or a disorderly persons offense unless otherwise provided under the New Jersey Bail Reform Act.

Constitutional Backdrop

Notwithstanding the doctrine of Separation of Powers, the Constitution requires the branches of government come into regular contact. Among the contacts between the government’s Executive and Judicial Branches, the police must file for a complaint-warrant in court against a defendant. Indeed, the Fourth Amendment1 and Article 1, Paragraph 7 of the New Jersey Constitution2 require the court to find probable cause to issue a warrant.

Thus, the police typically apply at the culmination of their investigation. Obviously, this strengthens the State’s ability to prove probable cause for the issuance of the complaint-warrant. Ideally the State should apply for a complaint-warrant before arresting the individual. But the Constitution acknowledges the practical challenges, and exceptions allow the police to apply for the complaint-warrant after arresting the individual. Accordingly, the New Jersey Bail Reform Act requires law enforcement to apply for a complaint-warrant in accordance with guidelines issued by the Attorney General. Furthermore, it requires the court to issue a complaint-warrant only as authorized by Court Rules.3

First Hearing

After the court issues the complaint-warrant, the Pretrial Services Program (PSP) prepares a risk assessment. This report provides the court with recommended conditions of release. During this period, the eligible defendant will be temporarily detained.4 Nevertheless, the court must decide about the defendant’s pretrial release without unnecessarily delay. Furthermore, the statute limits this detention period to no more than 48 hours after the elgibile defendant’s commitment to jail. At the end of the hearing, the court may release a defendant either on his own recognizance or subject to certain conditions.5

Pretrial Detention Hearing

The law favors pretrial release upon filing a complaint-warrant. But it also allows the prosecutor to move before the court for pretrial detention at any time. Notwithstanding a couple of exceptions, the prosecutor must rebut the presumption that some amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions will reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

Additionally, filing the motion for pretrial detention before the first appearance will delay the eligible defendant release pending the hearing.6 The hearing must be held no later than the defendant’s first appearance, unless either the eligible defendant or the prosecutor seeks a continuance, or unless the prosecutor files the motion after the first appearance.7 Additionally, the prosecutor may file the motion for pretrial detention after the court released the eligible defendant from custody. Consequently, the court will need to issue a notice to compel his or her appearance at the hearing.8

Defendant’s Rights at Pretrial Detention Hearing

At the pretrial detention hearing, the eligible defendant has the right to

  • counsel9
  • appointed counsel9
  • testify10
  • present witnesses10
  • cross-examine witnesses10
  • present information by proffer or otherwise10

At a hearing where there is no indictment, the prosecutor must “establish probable cause that the eligible defendant committed the predicate offense.”11

New Jersey Criminal Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations for all cases involving bail. Call Now—(856) 812-0321.


1 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV

2 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized. N.J. Const. art. I, ¶ 7

3 N.J.S.A. 2A:162-16(c).

4 N.J.S.A. 2A:162-16(a); N.J.S.A. 2A:162-25

5 N.J.S.A. 2A:162-16(b)(1); N.J.S.A. 2A:162-17

6 N.J.S.A. 2A:162-18, -19

7 N.J.S.A. 2A:162-19(d)

8 N.J.S.A. 2A:162-19(d)(2)

9 N.J.S.A. 2A:162-19(e)

10 N.J.S.A. 2A:162-19(e)(1)

11 N.J.S.A. 2A:162-19(e)(2)