Major changes, due to take effect in January 2017, are afoot in New Jersey with respect to how bail is set for criminal defendants. One of the most important things for criminal defendants to know when bail reform takes effect is that it will be very important—much more so than before—to be represented by an attorney before the first court appearance, which takes place very shortly after arrest.
Across the country, states have come to recognize that their existing bail systems are not working as intended, and a few, like New Jersey, have taken steps to make the system work in a way that is more consistent with its goals.
The purpose of having a bail system in the first place is twofold: first, to ensure public safety, and second, to make certain that criminal defendants will return to court. In most states, the system, as it stands, is an imperfect fit for those goals and has a host of unintended consequences.
Most states have a resource-based bail system: a judge sets an amount of bail depending on the circumstances of the criminal matter at hand. If defendants can post the amount ordered, they are released pending their next court date. If not, they languish in jail. The majority of people currently in local jails haven't been convicted of any crime; they are waiting for the disposition of their cases.
Most of these people are awaiting trial on nonviolent offenses. Many are in jail not because they represent a danger to public safety or a flight risk, but because they were financially unable to post bail. Keeping these defendants locked up pending trial costs local governments across the country billions of dollars per year.
Not only is there a financial impact on communities, there is a huge cost to the individual defendants and their families. Criminal justice experts note that for defendants who are employed, pretrial jail time often costs them their jobs. This in turn hampers their ability to support their families. And the only difference between these defendants and other defendants accused of identical crimes is that some have the money to make bail, and some don't. Those who don't may pose no greater risk than those who do, but they suffer disproportionately.
Conversely, there are defendants whose history shows that they pose a risk to the public or specific others if released. Under the old bail policy in New Jersey, it's possible that a dangerous offender who has the resources for bail would be released while a defendant with no criminal history, charged with a non-violent crime, would be detained due to financial inability to post bail.
New Jersey is one of a handful of states that has elected to shift from a commercial or resource-based system to a risk-based system. This change is expected to have a number of advantages. First and foremost, eligible defendants will be granted release, or not, depending on an objective, standardized risk assessment. The risk assessment tool evaluates the likelihood of a defendant being arrested for a new crime or for a new violent crime, or failing to appear in court.
Following the risk assessment, an eligible defendant may be released on his or her own recognizance; granted a non-monetary release with certain conditions; released with monetary bail only to ensure a future appearance; or released with some combination of monetary bail and conditions. There is also the possibility that a defendant will not be released, but remain in detention. This would happen only following a motion by the State and a hearing on the motion, not simply at the court's request. The new law puts legal protections in place for defendants in the event of such a motion and the detention hearing that would follow.
These protections include the right to be represented by counsel and to cross-examine witnesses. In these cases where a defendant's release or detention hinges on the outcome of a detention hearing, it is going to be especially critical to have an attorney's representation as soon as possible.
In the months leading up to New Jersey's new bail policy taking effect, we will continue to post information about the changes in the law, including who is an "eligible defendant," and details on the risk assessment process, the various types of release, and the process for granting release or detention.
Attorney Brian Neary has been instrumental in educating New Jersey attorneys on this sweeping reform, including speaking at the 2016 New Jersey State Bar Convention and before the Hudson County Bar Association. He has also served as a faculty member for NJICLE's "New Jersey's Comprehensive Bail Reform Law: 2016 Update."