On election day this November, 2014, there will be vote as to whether the New Jersey Constitution should be amended to allow judges to deny bail to certain high risk criminal defendants. This is part of a larger scheme to reform New Jersey bail procedures.

As part of our Criminal Defense practice, it is very common that there are issues involving bail. Bail is a tricky part of the criminal justice system – most of the time the system works relatively well, but when it doesn’t the system fails miserably and great injustice could result.

One may ask, why is it necessary to change the New Jersey Constitution? The state constitution currently requires that judges set bail for all crimes, except in cases carrying the death penalty, which has been abolished in New Jersey. One of the goals of these reforms is to allow judges discretion to deny bail entirely in cases where the defendant is a high-risk offender. Therefore, the constitution needs to be changed to allow this, and the voters in New Jersey must agree to amend the state constitution. The proponents of the legislation want this change to stop defendants from getting out on bail and hurting/killing victims and/or witnesses, or fleeing the jurisdiction. This is especially a concern when the defendant is facing long prison terms for organized crime activities. If passed, bail would still be set in most cases. Says Assembly Speaker Vincent Prieto, the amendment would allow judges to deny bail to defendants who they believe “would not return to court when required; would be a threat to the safety of another person or the community; or would obstruct or attempt to obstruct the criminal justice process.” To invoke the new legislation, judges would have to determine that “no amount of monetary bail, non-monetary conditions of pretrial release” or a combination of the two could not assure the defendant would return to stand trial. Defendants who are being held without bail would have to be indicted within 90 days or be released. Trials would have to be held for those detained defendants within 180 days of the indictment.

The other reform measures are designed to address problems on the other end of the spectrum. All too often, a defendant is facing a relatively minor criminal charge and simply cannot afford to pay the bail that is set pursuant to the bail guidelines. Bail, after all, is not designed to be punitive – it is designed to ensure that a defendant returns to court for each court appearance. Gov. Christie said, it is unfair that indigent defendants charged with minor or nonviolent crimes be required to post bail that they cannot afford, and thus spend months in jail while the charges against them are pending. “This is a system that has failed,” Christie said. “It amounts to a debtors’ prison. This is not a fair and just system. It’s failing the people it is supposed to serve.” We completely agree, and we are happy to see this reform. Going forward, judges would be allowed to release non-violent, indigent defendants who could never afford bail in cases where the crime charged is not serious. To be sure, this will save the New Jersey taxpayers money as far fewer people would have to be jailed while awaiting trial.