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Bail in NJ – How Does It Work?

Bail is one area of the criminal justice system that may seem complex, but it serves one major purpose - to ensure that a defendant will show up to court. The bail system is not designed to punish the defendant, and it is not to protect the public. While those may be collateral consequences, the sole purpose of bail is to guarantee that the defendant will appear in court.

At the beginning of 2017, a significant change to bail in New Jersey was introduced when the Bail Reform and Speedy Trial Act was passed. This Act eliminated cash bail in the state of New Jersey to avoid holding innocent people in jail, simply because they can’t meet bail. There are a few reasons why someone may be held despite this act, but the prosecutor must motion for a detention hearing and prove that the defendant meets these eligibility standards first.

Bail Reform and Speedy Trial Act (2017)

Despite there being some ways in which a defendant may be held, the main goal of this Act was to make it so that only guilty people are placed in jail. Unless certain criteria are met and the prosecutor pushes for a detention hearing, a defendant may not be placed in jail without a guilty verdict. 

This act originated from a study conducted by the Drug Policy Alliance, in which it found that 1,547 people were held due to their inability to afford bail. That number reflected 12% of the jail population at that time. In the same study, it was determined that the actual bail that kept them in jail was on average $2,500 or less. Around 50% of the people in this study, wouldn’t have been able to afford $500 bail. Once the study was complete, it became clear, to leaders on both sides of the aisle, that being innocent until proven guilty should not depend on the size of your bank account. 

With the act properly in place, defendants must be released or incarcerated within 48 hours of arrest. Should the defendant be detained, they must be tried within 180 days. Besides granting proper innocence to defendants, the Act aims to lower the unnecessary prison population and reduce the number of plea bargains taken as a result of being unable to post bail. Ultimately, bail reform has been shown to be a major success in New Jersey, leading to a 20.3 percent decline in the pretrial jail population.

How the New Jersey Pretrial Detention System Works

New Jersey’s pretrial detention system now holds one simple reality; all defendants, except those facing life imprisonment, are entitled to a presumption of release. To explain this simply, here is how the New Jersey pretrial system works in steps:

  1. A complaint is issued – The defendant is fingerprinted and a criminal background is collected via a statewide database. This information allows the prosecutor and law enforcement to decide whether to authorize a summons or request a court warrant.
  2. A Summons or Warrant is Issued – The court may issue a summons or a warrant. If a summons is issued, the individual is being requested to appear. With a warrant, the individual may be arrested in order to get that person to court.
  3. Public Safety Assessment – A PSA uses the defendant’s past criminal history to determine whether or not they are a flight risk or will likely commit another crime. Certain violent crimes, like murder and weapons charges, will result in a “no release” recommendation.
  4. First Appearance Hearing – Within 48 hours after a defendant is taken to jail, a motion for detention must be made, otherwise, the judge will set conditions for release.
  5. Motion for Detention – If the motion is filed, a hearing is held within three to five business days. If there is no motion filed, the judge will make a judgment based on the prosecution and defense teams’ arguments, whether to detain or release.
  6. The court will decide if the defendant will be released or detained
    • The defendant may be released and given a court date (ROR’d or Released On Your Own Recognizance).
    • The defendant may be released with conditions such as house arrest, or some form of monitoring system.
    • The defendant may be detained, in which case, the court has 90 days to indict them due to the speedy trial guidelines.

In the cases where the court decides to detain the defendant, the defendant must be indicted within 90 days and tried within 180 days.

Public Safety Assessment (PSA) & PSA Risk Factors

When the court is deciding whether to detain, release, or release with conditions, it uses a system known as the Public Safety Assessment or PSA. The PSA was developed by the Laura and John Arnold Foundation to improve pretrial outcomes for defendants. The PSA helps assess whether the defendant will fail to appear in court pretrial, be arrested for a new crime, or be arrested for a new violent crime. Using nine factors, the assessment produces a prediction on whether or not releasing the defendant is a good idea. 

  1. Age at current arrest
  2. Current violent offense
    • Current violent offense and 20 years old or younger
  3. Pending charge at the time of the arrest
  4. Prior misdemeanor conviction
  5. Prior felony conviction
    • Prior conviction (misdemeanor or felony)
  6. Prior violent conviction
  7. Prior failure to appear in the past 2 years
  8. Prior failure to appear older than 2 years
  9. Prior sentence to incarceration

To date, the PSA is associated with improved pretrial outcomes. This means a higher rate of pretrial release and fewer circumstances where money is required to meet conditions of release.

Motion for a Pretrial Detention Hearing

If the defendant is not going to be released, it is up to the prosecuting attorney to motion for a detention hearing. Before a prosecutor can motion for a detention hearing, the defendant must fit into one of the following factors. 

Crime or Offense Factors: 

  • Of the first or second degree (subsection d. | section 2 | N.J.S.A. 2c:43-7.2)
  • That leads to an ordinary or extended term of life imprisonment
  • In which the accused has prior convictions for two or more offenses meeting the first two criteria
  • Involving human trafficking (section 1 | N.J.S.A. 2c:13-8 or N.J.S.A. 52:17B-237) such as the victim is a minor or the crime endangers a child (N.J.S.A. 2c:24-4)
  • Involving domestic violence under (subsection a. | section 3 | N.J.S.A. 2c:25-19)
  • Where the prosecutor believes
    • The defendant will not appear in court
    • The defendant poses a danger to a person or community
    • The defendant will obstruct justice 

Aside from these factors, the prosecutor can also file a motion for any crime where:

  • the eligible defendant will not appear in court as required;
  • the eligible defendant will pose a danger to any other person or the community; or
  • the eligible defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.

Motion to Extend Pretrial Detention

If the defendant is detained, it is also possible for the prosecutor to file a motion to extend the amount of time a defendant is in custody. Similarly, if the defense attorney needs more time for discovery or requests an adjournment, the 180 days does not continue. Because the defense attorney is working in the support of the defendant, the time cannot be used up in an attempt to bypass the 180-day mark and go free.

How Bail Used to Work in NJ

Before the NJ bail reform, the state relied heavily on the cash bail system to guarantee defendants would show up to trial or hearings, as did the rest of the United States. This led to an increased overpopulation in New Jersey of pretrial detainees and an unfair system for poorer defendants. Oftentimes, it would take years to move through the process of being arrested to trial, which essentially meant that if you couldn’t meet bail, you were guilty until proven innocent. In the United States as a whole, 70 percent of the jail population is made up of pretrial detainees. Many of those people couldn’t afford bail. 

In this system, when someone can’t afford bail, they often turn to a private bail bond company. The bail bond company will post your bail in exchange for a bond premium, which is generally 10 to 15 percent of the original bail. Should the defendant not show up for court, the bond company will make up the lost money by selling whatever collateral was given in the agreement.

Impacts of New Jersey Bail Reform

The bail reform act in New Jersey met initial opposition over the fear of an increased release of dangerous and violent offenders back into innocent communities. The bail bond industry also fiercely opposed this new act. Despite opposition from professionals in the justice system and the bond industry, New Jersey’s bail reform has been largely successful. Ever since the implementation of the act in 2017, crime rates have been falling in New Jersey. Some success metrics resulting from the act are as follows:

According to whyy.org, New Jersey’s reform to the bail system has had the following results:

  • Reduced pretrial jail population
  • Violent offenders can still be detained under the act
  • Defendants still show up in court and rearrests are happening at the same rate as before the act
  • Falling crime rates
  • Poor defendants were not stuck behind bars at the same rate

Do I Need a Lawyer for Pre-trial Detention Hearings?

If you have been arrested and the prosecuting attorney files a motion for a detention hearing, having a lawyer can be extremely helpful. Despite the fact that with the new act, defendants are usually released on their own recognizance, having a lawyer on your side will give you the best chance of getting a speedy trial. Rosenberg | Perry & Associates Lawyers are experienced with the New Jersey pretrial detention process and are prepared to help you, a friend, or a loved one. Contact us today if you need assistance after being arrested.

More Pre-Trial Detention Information

What is a Detention Hearing?

Is There Bail in New Jersey Anymore?

Is New Jersey cash bail reform working?

According to the 2021 Annual Report produced by the New Jersey Courts, approximately 12 percent of jail inmates in 2012 were held because they could not afford to pay bail of $2,500 or less. Almost a decade later – after the reforms were introduced – that figure had dropped to 0.4 percent.

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