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Mechanisms of the New Jersey Bail System

October 2, 2023

Since NJ Reformed its Bail System, the Guidelines and Principles that Govern Pretrial Detention and Release Have Fundamentally Changed.

Before January 2017, anyone arrested in New Jersey had to post bail to get out of jail pending a resolution of their charges. Typically, the accused posted cash or bond security to await a plea or trial outside of jail. The court set the bail amount to ensure the accused returned to court. Thus, if they did not return to court, the defendant would lose their cash or bond, which was 10 to 15% of the total bail amount. However, the bail system resulted in the disproportionate incarceration of those who could not afford bail while awaiting a trial, which could take months to years. New Jersey decided that bail reform was necessary in a judicial system where everyone is presumed innocent until proven guilty.

What Exactly is Criminal Justice Reform and How Did it Change Bail in NJ?

The Bail Reform and Speedy Trial Act of 2017 eliminated cash bail in exchange for detentions and risk assessment to the community and judicial system. Now, the court releases those charged with crimes unless the prosecution brings a detention motion showing good cause for the accused to remain in jail until a plea or trial. Good reasons for detention are the defendant is a flight risk, is likely to obstruct justice, or is expected to commit a crime if released. The court uses specific criteria to assess flight, obstruction, and new crime risks. Given the presumption that defendants get released, bail reform sought to detain only those more likely guilty and not the innocent.

Now, with few exceptions, the court presumes all defendants get released. Thus, after the state files its complaint charging the defendant with a crime or crimes, it books the accused, takes their fingerprints, and runs a criminal background check. After that, the court issues a summons requesting the defendant’s appearance or an arrest warrant to bring the defendant to court.

What Affects Pretrial Release Decisions in New Jersey?

The court uses a Public Safety Assessment (PSA) to determine whether the defendant’s criminal history warrants detention. The PSA assesses a defendant’s likelihood of not returning to court, committing a crime if released, or obstructing justice if released. An example of a defendant obstructing justice is threatening the victim or witnesses. The factors considered in the PSA are the defendant’s age at arrest, whether the charges include a violent offense, whether other charges are pending at the defendant’s arrest, prior convictions, prior failures to appear within two years or longer, and previous incarceration sentences. 

Crimes with life sentences and certain other crimes, like violent weapons charges, are conclusive that the defendant should not be released. Other factors include evidence that the defendant is a flight risk, poses a danger to someone, or will obstruct justice. For example, a defendant with a history of failing to appear in court for other offenses will likely skip out on the current charges. In addition, the defendant is likely to threaten the victim, which may be more likely when the victim is a spouse, partner, or significant other in a domestic violence crime and the victim lives with the perpetrator. And evidence pointing to potential threats to jurors or witnesses supports the inference that the defendant will attempt to obstruct justice if released.

What are the Steps in the Bail Process in NJ?

The prosecution then has 48 hours from the arrest to bring its motion for detention. A judge will determine whether a defendant stays in jail pending a trial or is released based on the arguments of the state and defense after a motion for detention or, if there is no motion, then upon both sides’ arguments. When the state brings a detention motion, a hearing occurs where the prosecution presents evidence to warrant detention. For example, the prosecution notes that the current charges include a first- or second-degree crime with a life imprisonment sentence attached to it, or the defendant has two or more prior convictions for first- or second-degree offenses warranting life imprisonment. Other significant crimes include human trafficking of minors, child endangerment, and domestic violence.

The defendant’s attorney may argue against the prosecution’s motion by showing the defendant is not a flight risk or conditions to release will ensure the defendant will appear in court. They will also argue that the defendant is unlikely to commit crimes or obstruct justice while released. The court must release the defendant unless they find clear and convincing evidence that no release conditions guarantee the defendant’s return to court, remaining crime-free, and refraining from obstruction of justice.

Potential Conditions of Bail if a Defendant Gets Released in New Jersey

When a court releases a defendant on conditions, those may be monthly telephonic check-ins with Pretrial Services, biweekly alternating check-ins by phone and in person to Pretrial Services, or home confinement with electronic monitoring by a bracelet or other device. When these conditions do not satisfy the court that the defendant will not violate any of the three dangers of releasing a defendant, the court will order the defendant to remain incarcerated. Moreover, the prosecutor can move the court to extend the defendant’s pretrial incarceration period.

The Role of Your Attorney at a Bail Hearing in Burlington County NJ

Since the prosecutor’s job at a detention hearing is to ensure the public safety and integrity of the judicial system by advocating for the defendant’s incarceration or conditions for release, you will need a strong and experienced criminal defense attorney to defeat the prosecution’s push for detention after your arrest. It would help if you had an attorney who could give the court reasons to release you with evidence of your connections to the community, assurances of your return to court, and remaining law-abiding while your trial is pending.

At a detention hearing, your attorney may provide evidence that you are not a flight risk and allow the judge to indulge the presumption of release or release with conditions. Thus, when you have prior criminal convictions or pending charges, you will need an attorney to persuade the judge to release you and counter the prosecution’s detention motion. Even without a detention motion, you want your attorney to argue for your release so the judge has reason on the record to release you. Since your freedom is paramount as you await trial, contact a criminal defense attorney at Proetta, Oliver, & Fay for assistance with your detention hearing. Our lawyers have been defending clients facing criminal charges and detention motions for years and we are dedicated to helping you get out of jail and remain free while your case is ongoing. Contact us for a free consultation at 609-850-8284 today.

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