After a suspect is arrested, they can seek to secure their release from jail, which historically has involved posting bail. However, New Jersey has explored a more socially just alternative to this old system, which privileges the wealthy at the expense of the less affluent. Here’s what you need to know about bail in New Jersey and how to seek pretrial release after an arrest.
What Is Bail?
In many jurisdictions, bail serves as financial security to ensure that a criminal defendant released from pre-trial detention will appear in court for the trial and all pretrial proceedings that require their attendance and will not attempt to flee the jurisdiction to avoid trial. When a court orders a defendant released on bail, the defendant must pay a sum of money that the court holds. When a defendant appears for all pre-trial detention hearings and trial, the court will release the money back to the defendant. However, if a defendant fails to appear in court when required or flees the jurisdiction, they may forfeit their bail money.
In many cases, courts set bail amounts that are too large for most individuals to afford, and they are unable to pay bail on their own. Instead, a criminal defendant may turn to a bail bondsman or bail bond company, who posts the bail for the defendant (with the defendant paying a percentage of the bail to the bondsman as a security and fee for the bondsman’s services). The bondsman gets their money back if they ensure the defendant’s appearance in court, which means the bondsman may need to track down a defendant who flees the jurisdiction.
Major Changes Under New Jersey Bail Reform
Does New Jersey have bail? After a significant reform to its criminal justice system, New Jersey does not have cash bail in the traditional sense.
In 2017, New Jersey passed the Bail Reform and Speedy Trial Act. The Act, sometimes referred to as the New Jersey no bail law, eliminated the cash bail system for pretrial release in New Jersey. Instead, New Jersey operates on a system designed to minimize the amount of time a defendant might spend in detention awaiting trial. The Act requires the issuance of a grand jury indictment within 90 days of detainment and a trial within 180 days of detainment, although the parties can ask for an extension for the trial.
The Act also shifts New Jersey’s pretrial release system from a bail system to a risk-based assessment system. Prosecutors must file a motion for detention within 48 hours of a defendant’s arrest for a detention-eligible offense. When prosecutors file a motion, the trial court must consider various risk factors to determine whether to order a defendant detained pending trial, known as the Public Safety Assessment.
To quote the official New Jersey Courts website: “Low-risk defendants who can’t afford bail will be released.”
The Public Safety Assessment reviews nine factors to recommend whether to detain a defendant, depending on the defendant’s risk of committing new criminal activity or new violent activity if released and risk of failing to appear pending the case’s disposition. These factors are as follows:
- The defendant’s current age
- Whether the defendant has a current violent offense
- The defendant’s pending charge(s) at the time of arrest
- The defendant’s prior disorderly persons convictions
- The defendant’s prior indictable convictions
- The defendant’s prior violent convictions
- Any prior failures to appear in court in the past two years
- Any prior failures to appear in court older than two years
- The defendant’s prior sentence(s)
Some of the most serious criminal offenses, such as homicide, usually carry a “no release” recommendation.
The motivations for the New Jersey no-bail law stemmed from the fact that a significant portion of the state’s jail population encompassed individuals awaiting trial because they could not afford the bail set by the trial court. This meant innocent people could spend weeks or months in jail due to their financial circumstances.
What Happens After an Arrest?
After the police arrest a defendant, several steps will occur before a trial court decides whether to release or detain the defendant:
- First, police or prosecutors will file a complaint against the defendant, which may occur after the defendant’s initial arrest or when police or prosecutors have enough evidence to develop probable cause to charge the defendant with a crime.
- Next, the court will issue a summons or warrant. A summons merely instructs the defendant to appear in court on a scheduled date, while a warrant authorizes the defendant’s arrest to ensure their appearance in court.
- The court will also prepare a Public Safety Assessment to determine whether the defendant poses a risk of committing a new crime or fleeing New Jersey if released pending trial.
- Prosecutors must file a motion for detention within 48 hours of the defendant’s arrest.
- When prosecutors file a motion for detention, the trial court must hold a hearing within three to five business days.
- The trial court will decide whether to release or detain the defendant based on the public safety assessment and the parties’ arguments.
Detention Hearings: What to Expect
At a detention hearing, the trial court will review the findings and recommendations of the Public Safety Assessment and invite the prosecutors and the defendant or their legal counsel to argue for and against detention, respectively. Prosecutors may highlight aspects of the defendant’s history or criminal record that indicate they pose a risk of committing a new crime or failing to appear in court if released. Defense counsel may present arguments showing that the defendant will appear in court; alternatively, the defense may challenge the accuracy of portions of the Public Safety Assessment.
When the trial court decides to order the defendant’s release, it may do so without conditions (released on own recognizance) or impose conditions on the defendant’s release. A defendant who violates those conditions may have their release revoked and be sent to jail to await trial. Alternatively, the trial court may find the defendant poses a risk of committing a new crime or fleeing the jurisdiction if released and order them detained, which starts the speedy trial deadlines.
Conditions of Pretrial Release
Examples of conditions that trial courts may set for a defendant’s pretrial release include:
- House arrest
- Electronic monitoring
- Curfews
- Restrictions on travel or movement
- Periodic reporting to law enforcement
- Refraining from possessing or consuming illegal drugs
- Surrendering firearms and refraining from possessing weapons
- Refraining from committing new offenses during release
Contact Our New Jersey Defense Attorneys for Help
If you’ve been arrested in New Jersey, you need experienced legal advocacy to help you seek your release from detention pending trial. Contact Keith Oliver Criminal Law today for a free, confidential consultation with a criminal defense lawyer to learn more about how pretrial release works in New Jersey and what to expect after an arrest.
