Bail Is A Constitutional Right (Pre-January 1, 2017)
New Jersey’s bail system saw significant changes on January 1, 2017. Learn about 2017’s NJ bail reform.
The right to pre-conviction bail is a fundamental right enshrined in the New Jersey Constitution. It is also required by the New Jersey Rules of Court, specifically, Rule 7:4-1. Our Constitution provides that:
All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. N.J. Const. art. I, ¶ 11; State v. Johnson, 61 N.J. 351, 354 (1972).
It is well settled law in New Jersey that the sole purpose of bail is to ensure the defendant’s appearance, and not to protect the community or frighten or punish the defendant. State v. Steele, 430 N.J. Super. 24, 35-37 (App. Div. 2013). In setting bail, “judges engage in a fact-sensitive analysis[.]” State v. Fajardo-Santos, 199 N.J. 520, 531, 533-34 (2009).
Motion to Reduce Bail
When a charge is initially generated, a defendant’s bail will be set by a judge. After the defendant is arrested, they are required to have a first appearance before a Superior Court Judge. At that time, the defendant is advised of his or her charges and bail is considered. A defendant’s bail can be modified in its terms, increased, decreased or maintained without change. After a defendant’s first appearance, his or her attorney may file a Motion to Reduce bail.
New Jersey Bail Guidelines (Pre-January 1, 2017)
Pursuant to case law and the Rules of Court, Courts are required to consider the following non-exclusive factors in consideration of bail:
- Seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature;
- Defendant’s criminal record, if any, and previous record on bail, if any;
- Defendant’s reputation, and mental condition;
- Length of defendant’s residence in the community;
- Defendant’s family ties and relationships;
- Defendant’s employment status, record of employment, and financial condition;
- Identity of responsible members of the community who would vouch for defendant’s reliability; and
- Any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear, and particularly, the general policy against unnecessary sureties and detention.
New Jersey Court Rule 3:26-1(a)(1)-(8) and State v. Johnson.
New Jersey Judiciary Bail Schedule (Pre-January 1, 2017)
The State Judiciary publishes a Bail Schedule that provides Judge’s across the State with bail ranges. The Bail Schedule is suggestive, but not mandatory. The Bail Schedule provides families of defendants a good idea of what kind of bail to expect to be set and what a realistic bail reduction may be.
Bail and Bond Options in New Jersey (Pre-January 1, 2017)
A defendant’s bail in New Jersey can be set as follows:
A Cash Only bail requires someone to post cash or surety in the full amount of the bail. For instance, a $100,000.00 cash only bail would require a person to post $100,000.00 by way of certified bank check or pledge real property situated in this State with an unencumbered equity equal to the amount of bail undertaken plus $20,000. In the case of a $100,000.00 bail, the person pledging the property would be required to have no less than $120,000.00 in unencumbered equity in the home.
Cash or Bond Full (no 10%)
A Cash or Bond Full bail requires someone to post the full amount in cash, real property or post a bond. Bonds are posted by Bail Bondsman. Bondsman typically charge a 10% premium for posting the bond. In the case of a $100,000.00 bond, the person would be required to pay a premium of approximately $10,000.00.
Cash or Bond with 10% Alternative (with 10%)
Cash or Bond with 10% alternative (with 10%) requires someone to post 10% of the bail. In the case of a $100,000.00 bail with 10%, a person would be required to pay $10,000.00 by certified check to the jail. If the defendant fails to appear and bail is revoked and forfeited, the surety (person who posted the 10%) will be required to pay the remaining 90% of the bail to the Court. So long as the defendant appears at all of his or her court appearances, at the end of the case, regardless of the outcome, the funds posted will be returned in full. If you are not able to pay the 10% alternative, you may use a bondsman to post the bail in full. This will require the payment of a bail premium of approximately 10%. Those funds are not returnable. It is always more financially beneficial to post the 10% alternative, but that is not always an option.
Bail Source Hearing & Inquiry (Pre-January 1, 2017)
Certain crimes in New Jersey require that the source of the funds used to post bail are subject to inquiry and investigation. This is referred to as a “Bail Source Inquiry”. On those enumerated offenses, the surety posting the funds must complete a bail source questionnaire. This was created by the judiciary and required to be submitted to the prosecutor prior the posting of a defendant’s bail. After review by the prosecutor, the State will either consent to the source or object and require a bail source hearing.
If someone you know has been charged with a crime in New Jersey and is required to pay bail in order to be released, call Daniel M. Rosenberg. He and his attorneys will be able to explain the process to you and help provide you with the knowledge and guidance you need to help your friend or loved one bail out quickly and with the least amount of cost required.