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Bail Reform Act Takes Effect Throughout New Jersey

Arseneualt & Fassett, LLP

New legislation takes effect this month in a major overhaul of the New Jersey criminal justice system’s pre-trial release regime. Beginning on January 1, 2017, the Bail Reform Act changes how courts determine whether a person who has been accused of a crime should be detained or released, and if released, subject to what conditions. It also implements certain deadlines to protect the “speedy trial” rights of detained defendants.

The Act resulted from several problems observed in the old system. First, many defendants awaiting trial were unable to post even modest monetary bails and therefore languished in jail even though they posed little risk of flight or danger to the community. Other defendants with much greater access to funds could post bail even if they posed serious risk of flight from prosecution, danger to the community, or obstruction of justice. Second, many defendants were waiting for many months or even years before standing trial, often while detained in county jails. The Act addresses these problems by revising the bail system and imposing time limits for criminal prosecutions.

Under the new law, a defendant arrested on a complaint-warrant (as opposed to a complaint-summons) may be detained for up to 48 hours pending the determination of the defendant’s risk of flight, danger, or obstruction. If the court determines to release the defendant, it must impose the least restrictive set of conditions to meet the goals of bail, which are, in order of priority:

  • release on recognizance (ROR) or an unsecured appearance bond;
  • non-monetary conditions (phone calls, texts, reporting);
  • monetary conditions;
  • combination of monetary and non-monetary conditions.

If the court finds that no set of conditions would secure the defendant’s presence and protect the public or witnesses, the court may order the defendant detained without bail. Courts have found that the defendant has a right to an attorney at this stage, or if he does not have an attorney during the bail hearing, to have the bail decision reviewed when the defendant does have an attorney.

The prosecutor may move for “preventive detention” (holding the defendant without bail) if the State believes that no set of bail conditions are adequate, or if the defendant has been charged with certain enumerated offenses:

  • domestic violence;
  • violent crimes subject to the No Early Release Act (NERA);
  • any crimes punishable by a life sentence;
  • any crime, if the defendant has two prior convictions for NERA or life-sentence offenses;
  • any sex crime; and
  • any weapons offense identified in the Graves Act.

Generally there is a rebuttable presumption against detention, which the prosecutor must overcome to have the defendant detained without bail. However, there is a rebuttable presumption that a defendant will be detained without bail if the court finds that probable cause exists to believe that the defendant has committed murder or any crime punishable by a life sentence. The defendant then must rebut the presumption by presenting mitigating evidence. A court which orders pre-trial detention must put findings of fact on the record, and the determination may be appealed.

If a defendant is detained, either due to preventive detention or because he cannot afford to pay a monetary bail, the Act provides certain “speedy trial” deadlines. First, a defendant cannot be detained for more than 90 days prior to being indicted by a Grand Jury. Second, the defendant cannot be detained for more than 180 days between indictment and trial. Both of these provisions are subject to limited extensions and exclusions for certain “reasonable delays.” Third, the defendant generally cannot be detained for more than two years between initial detention and trial, excluding delays attributable to the defendant.

A new Pre-Trial Services Program (PSP) has been established within the Administrative Office of the Courts (AOC) to carry out the provisions of the Act. PSP staff will assess individual defendants’ risk of flight and danger and will make a recommendation as to whether a defendant should be released on bail and subject to what conditions. PSP staff will also monitor defendants while on pre-trial release to ensure their compliance with bail conditions.

Although Bail Reform was subjected to limited test runs in a few counties in 2016, it became effective Statewide as of January 1, 2017. It remains to be seen how the Act is implemented by the court administration, judges, prosecutors, and defense attorneys. The latter in particular will undoubtedly bring any flaws and inequities in the new system to the attention of the courts through motion and appellate practice. In the meantime, any person who has been charged with a criminal offense should obtain an experienced criminal defense attorney who knows the latest developments in the law to advocate for the defendant’s pre-trial release and the most favorable possible outcome.

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