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New Jersey Bail Reform Should Result in More Fairness to Criminal Defendants

Prior to 2017, every criminal defendant in the state had a constitutional right to pre-conviction bail. After an arrest, a judge would set a monetary bail amount in each case. The defendant could post bail with cash or with a bond. If the person couldn’t afford either, he or she would stay in jail until the resolution of their trial. This resulted in people stuck in jail, not because they were a danger to society but because they were poor.

New Jersey’s Bail Reform and Speedy Trial Act changed this system. This act gives significant importance to the risk to the community when a determination on releasing the defendant is made. Additionally, the court takes into account:

  • The offense
  • The amount of evidence
  • The prior arrest record, if any
  • Personal characteristics such as family, community ties, employment, and current probation or parole status
  • The risk of the defendant fleeing

After an arrest, a decision is made whether to charge a person on a complaint-summons or a complaint-warrant. If a police officer arrests someone for an indictable crime (one where the penalty is at least a year in prison, known as a felony in other jurisdictions) or for a disorderly person offense where the allegations include domestic violence, a county prosecutor must be contacted.

He or she decides whether to issue a complaint-summons or a complaint-warrant in the case. There are mandatory and presumptive warrant charges. Unless a case concerns serious charges that require a complaint-warrant, the choice between the two is based on results of an automated pretrial risk-assessment process. Someone with a complaint-summons should be released after their arrest has been processed.

Those charges requiring a complaint-warrant include the following (along with an attempt to commit them):

  • Murder
  • Aggravated manslaughter
  • Manslaughter
  • Aggravated sexual assault
  • Sexual assault
  • Robbery
  • Carjacking
  • Escape

The automated pretrial risk-assessment process is a computerized preliminary pretrial risk-assessment administered by the Administrative Office of the Courts (AOC). It’s started by law enforcement before a defendant is transported to a county jail. At the jail, the assessment results are reviewed and could be changed due to additional information by the pretrial services program. The greater the risk the more likely a complaint-warrant will be issued.

The process looks at the nature of the charge (such as whether it involves violence) along with case and court history data about the defendant’s previous involvement, if any, with the adult criminal justice system. The process measures risks posed by the defendant and the AOC has a “Decision Making Framework” which is designed to manage those risks by suggesting the right level of release conditions and monitoring.

If a complaint-warrant is issued the defendant is taken to a county jail where he or she is held for up to 48 hours. During this period the pretrial services program creates a recommendation to the court on conditions of pretrial release and the level of monitoring the court should impose when the defendant first appears.

At this hearing, the prosecutor makes a motion to have the defendant detained or the judge will set conditions of release considering the pretrial service’s recommendation as well as input from the prosecutor and the defense attorney.  If the judge deviates from the recommendation he or she must explain why.  The judge will also set a date for the next court appearance.

If a detention motion is ­made, a pretrial detention hearing is held within three to fi­ve business days. At this hearing, the prosecutor needs to show that no condition of release can reasonably assure the public’s safety or that the defendant will return to court.  If the judge isn’t convinced the prosecutor is right, the defendant will be released with conditions.  If the judge agrees with the prosecution, the defendant is subject to speedy trial guidelines and needs to be indicted within 90 days.

If you are subject to a pretrial detention hearing you have a right to:

  • Counsel (whether you hire the person or one is appointed for you)
  • Testify (though you may choose not to)
  • Present witnesses
  • Cross-examine witnesses
  • Information by Proffer (provide information that supports your legal arguments).

If you or a family member has been arrested and is facing a pretrial detention hearing and you have questions or want legal representation, contact Tara Breslow-Testa at (732) 784-2880 for a free consultation.


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