Since January 1, 2017, New Jersey’s bail system and criminal justice procedure has materially changed with Criminal Justice Reform statutes and rule changes. These statutes and rules changed the following two important parts of our New Jersey criminal justice system: New Jersey’s bail procedure and a person’s right to a speedy trial for detained defendants.
Prior to January 1, once a defendant was arrested on an arrest warrant, judges would set a monetary bail that would secure the defendant’s appearance at trial. The defendant would have to post the bail to be released. Often defendants would call family members or a bail bondsman, who would assist in posting the bail. Since January 1, the system has shifted from monetary bail to non-monetary release and conditions. In some cases, a defendant will be detained without any conditions pending trial.
If a defendant is arrested for an indictable crime or a disorderly person’s offense, the first important question for bail purposes is whether the criminal complaint, the formal charging document, is a warrant-complaint or a summons. If the complaint is a summons (designated with the letter S at the start of the docket number at the top of the complaint), that person is released without any conditions. If the complaint is a warrant (designated with a W at the start of the docket number), that person will be detained without any bail or conditions up to 48 hours until they appear before the court for a risk assessment hearing. If a person is charged on a warrant-complaint, it doesn’t matter who they are or how much money they have, they are going to the county jail until the hearing.
Once a defendant is arrested on a warrant-complaint, they will be processed and brought to the county jail, which starts the clock that requires the risk assessment hearing to take place within 48 hours.
Once the defendant is fingerprinted, a pretrial services unit, also known as pretrial services program, within the Probation Division is notified and will conduct a risk assessment on the defendant. A risk assessment instrument, a Public Safety Assessment (PSA), will be generated, which measures the likelihood that the defendant will be arrested for a new crime, will be arrested for new violent crime and the likelihood the defendant will fail to appear in court. The PSA measures these risks based on information such as age, the current charge, prior convictions and sentences and if the defendant has a history of failing to appear for court.
The PSA will be uploaded to the New Jersey e-courts system and will be reviewed by the defendant’s attorney, the prosecutor and the court prior to the risk assessment hearing.
Prior to the start of the risk assessment hearing, the prosecutor must decide whether to seek detention and request a detention hearing. If so, the prosecutor must file a formal motion with the court prior to the risk assessment hearing seeking detention. The prosecutor’s decision is guided, in part, by New Jersey Attorney General Directive No. 2016-6 V. 3.0 titled, “Directive Establishing Interim Policies, Practices, and Procedures to Implement Criminal Justice Reform Pursuant to P.L. 2014, e. 31.”
At the risk assessment hearing, the defendant will be represented by his or her private attorney (hopefully David Bruno of the Bianchi Law Group) or a deputy public defender if private counsel has not been retained.
If the prosecutor has not filed a detention motion, the risk assessment hearing will take place and the court will order the pretrial release of the defendant (no motion means no detention) after considering all the circumstances, the PSA and any information that may be provided by a prosecutor or criminal defense counsel. The court will order one of the following authorized pretrial monitoring levels of release (also depicted on the right):
ROR- Release recommended with no conditions. Defendant not required to report to pretrial services.
PML1- Release recommended with minimal conditions. Defendant required to report to pretrial services telephonically once per month.
PML2- Release recommended with conditions. Defendant required to report to pretrial services telephonically once per month and in person once per month.
PML3- Release recommended with conditions. Defendant required to report to pretrial services telephonically once every other week and in person once every other week.
PML3+- Release recommended with conditions including electronic monitoring or home detention. Defendant required to report to pretrial services telephonically once every other week and in person once every other week.
If the prosecutor filed a motion for detention prior to the risk assessment hearing, the court will merely set the detention hearing date which must take place within three working days from the risk assessment hearing, unless the prosecutor or the defendant seek a continuance. The defendant will be detained without any bail or conditions until the detention hearing takes place.
At the detention hearing, the court will hear evidence presented by each side through proffer. The Appellate Division has ruled, in State v. Ingram, that each side doesn’t have to call a live witness to proffer evidence. At the detention hearing, the defendant has the right to be represented by counsel, cross-examine witnesses and present information. If the detention hearing occurs before an indictment is returned, the prosecutor must also establish probable cause that the defendant committed the allegations.
The court must determine whether to detain the defendant pending trial or release him/her with conditions. To detain a defendant, the court must find, by clear and convincing evidence, that no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.
In determining whether pretrial detention is necessary, the court may consider the following information;
1. The nature and circumstances of the offense charged;
2. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;
3. The history and characteristics of the eligible defendant, including: (1) the eligible defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (2) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;
4. The nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant’s release, if applicable;
5. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant’s release, if applicable; and
6. The release recommendation of the pretrial services program obtained using a risk assessment instrument (the PSA).
If the court decides to release the defendant after the detention hearing, the court will order one of previously discussed pretrial monitoring levels of release.
Finally, if the defendant is detained prior to trial, the defendant has statutory speedy trial rights. Specifically, the prosecutor has 90 days from the defendant’s arrest to present the matter to the grand jury and indict the defendant. Additionally, the defendant must have a trial within 180 days of the indictment. However, there are 13 reasons to toll or exclude time under the speedy trial time requirements.