Article by Daniel A. Levy, Esq.

Beginning on January 1, 2017, New Jersey’s new bail reform measures went into effect. Full details are available using this link. To call this a “change” would be a real understatement. This is more than a change; it’s a wholesale revamping of the entire bail system. There are some very significant changes that we feel will make the system much more fair and reasonable, and a couple of changes that may actually make things worse for some people. We will go over those point below. But first, we should give you some background about the bail system in New Jersey.

When someone is accused of a crime, the court wants to make sure that the person will actually show up to court. Traditionally in New Jersey, a person would normally be charged by way of a summons or a warrant. Both documents advise the defendant of their charges and the first court date. But the summons essentially just directs the defendant to attend court. The warrant gives police the right to arrest the defendant and hold them until the defendant is released on bail (or a judge could release them on their own recognizance, basically the person’s personal promise to appear).

The theory behind monetary bail was that the court would set an amount to be paid that would ensure that the defendant would show up. There were guidelines as to ranges of amounts for various categories of crimes. The court also had no obligation to set the bail at an amount that the defendant could afford. And prior to the reforms – depending on the type of crime alleged – there were many cases where bail amounts would be changed several times in the weeks after the arrest.

The problem with the monetary bail system is three fold: First, it was very unfair to people with lower income. When you have two people with the same criminal record, same crime charged, and same chances that they would show up to court if released, there is something fundamentally unfair when one person sits in jail for over a year awaiting trial while the other is released solely because one of them happens to have more money. Second, it didn’t actually work as intended. The data showed that monetary bail was a very poor indicator of whether someone would show up in court. Basically, the data was all over the place and it showed policy makers that monetary bail was not actually causing people to show up to court. Most people showed up to court just because they knew that they had to go and they wanted to take care of the situation. And many people missed court dates for all sorts of reasons that had nothing to do with fleeing from responsibility. Often, people just forgot to go, or they moved and didn’t get a court notice, or they couldn’t get out of work, etc. And the third problem was that the traditional bail system did very little to keep victims and potential victims safe. For example, a violent criminal could easily post bail if they had the funds and then victimize someone – the bail money would not really be a factor for them – and someone who had no real likelihood of victimizing anyone (ex. they were arrested for drug possession) simply didn’t need to be held in jail to protect potential victims.

New Jersey’s sweeping changes attempt to reform the system to deal with these issues. And here is how:

If you are charged with a crime by way of a warrant, you will go to the county jail for processing. And there is nothing you can do to prevent this (previously a good lawyer could help you arrange things so that you turned yourself in and were released the same day, all right at the local Municipal Court). However, a judge will review your case within 48 hours. A risk assessment is administratively performed to determine the likelihood that the person will show up to future court appearances, and the likelihood that they will victimize someone while awaiting trial. The court does this with a certain rubric whereby certain factors will go against the defendant, like whether they missed court dates before, prior violent criminal convictions, etc.

And here is the huge change: There is a presumption of release and a presumption that no monetary bail is required at all. That’s right, no bail money is collected. The only time that it is collected is when it’s determined that no other conditions of release will reasonably assure that the defendant will appear in court. That’s a huge change! Instead of monetary bail, the defendant is released with various conditions. This could be as simple as a condition that the person call the court once a month (or literally just promise to come back), or it could be much more onerous, like ankle monitoring and weekly contact with court staff.

And on the flip side to this, the new law allows the court to hold defendants indefinitely, if there is a determination that the person poses a significant threat to society, obstruct justice, and/or fail to appear despite monitoring. However, the state will have to prove this by clear and convincing evidence. And if a defendant is held in jail indefinitely, they will be released no matter what if the case doesn’t go to trial within 180 days.

Now, all of this information pertains only to charges brought by a warrant. But as mentioned above, charges can also be brought by way of a summons. If a summons is used, there is no bail, no jail, no risk assessment, or anything like that. Because judges and officers know that a warrant will result in 24-48 hours in jail, the local judges are moving away from issuing so many warrants in favor of the summons. This way, they don’t have to burden the system with jailing and evaluating people charged with minor crimes, and they avoid the injustice of sending someone to jail for two days when the person is accused of a minor crime that likely wouldn’t even result in jail time even if convicted.