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Transforming Bail: A New Era for Criminal Justice Reform in New Jersey

Every New Jersey prosecutor and criminal defense attorney can vividly recall the seismic shift that occurred on January 1, 2017, marking the official commencement of criminal justice reform in New Jersey. As an assistant prosecutor in Burlington County at the time, I recall the pervasive uncertainty that permeated our office corridors (rumors and whispers). Despite numerous training sessions and meetings attempting to decipher the intricacies of “bail reform,” the reality of the changes remained a nebulous prospect. For decades, New Jersey had relied on the entrenched cash bail system, a staple across states for generations in handling criminal arrests and incarceration. Now, this time-honored tradition was undergoing a radical overhaul in New Jersey, with scant guidance from the higher courts. Attorneys and defendants alike found themselves thrust into the role of unwitting pioneers navigating this uncharted territory. Today, a little less than a decade later, we have more insight into the law and things have begun to settle. The purpose of this blog is to give an overview of criminal justice reform and the basics surrounding pre-trial detention and procedure.

Bail reform in New Jersey (and many other places) was in response to several glaring flaws inherent in the cash bail system. Reform offered relief to a significant portion of defendants, particularly those who found themselves released as opposed to waiting in jail for their case to be resolved. Looking back at the cash bail system, a major issue was its indiscriminate impact, where individuals accused of minor offenses were ensnared in jail due to nominal bail amounts, often less than $1,500. These individuals languished behind bars for weeks or months, their lives upended – jobs lost, family ties strained, and legal consultations out of reach. Furthermore, the financial strain of not working rendered legal representation of their choice unattainable, exacerbating the plight of the less privileged. Meanwhile, those with financial means, despite sometimes facing more serious charges, could secure their freedom by simply paying their way out of incarceration prior to resolution of their case.

Another pernicious consequence of the cash bail system in New Jersey was the coercive pressure it exerted on defendants to plead guilty, irrespective of guilt. Consider a scenario where a defendant, held on a $1,500 bail for a minor drug possession offense, languishes in jail for three months. When offered a plea deal by the prosecutor – probation in exchange for immediate release – the overwhelming majority of defendants, confronted with prolonged incarceration if they were to proceed to trial or motions to suppress, would reluctantly accept, regardless of the merits of their case or the potential to file a motion which could result in dismissal. This coercive dynamic, prevalent prior to bail reform, resulted in countless individuals accepting plea bargains solely to secure their liberty, a glaring injustice.

How Did the Bail System Change?

So, what did criminal justice and bail reform entail in New Jersey? Foremost, it heralded the demise of the cash bail system, ushering in a paradigm shift towards a “risk assessment” framework. But before delving into the intricacies, let’s briefly outline the process. Following an arrest, the accused transitions from a suspect to a defendant and is formally charged through a criminal complaint, issued either as a summons or a warrant (indicated by the S or W on top of the document). A summons may entail processing and release, or sometimes issued via mail, whereas a warrant mandates custodial arrest, leading to a pivotal “first appearance” before a judge. If the state hasn’t filed a motion for pre-trial detention the first appearance must occur within 48 hours of your arrest and placement into custody.  First appearances even occur on Saturdays via virtual court.

During the first appearance, one of two scenarios unfolds. Ideally, the state refrains from seeking detention, facilitating the defendant’s release under various pretrial monitoring schemes, ranging from being released on your own recognizance, checking in once every two weeks, or house arrest. Conversely, the state may file a “detention motion,” signaling intent to incarcerate the defendant pending indictment and trial. If a detention motion is filed prior to the first appearance, the first appearance is adjourned to the date of the detention hearing. Crucially, defendants enjoy a constitutional right to legal representation during detention hearings, typically facilitated by the public defender’s office.

What Happens During a Detention Hearing?

A detention hearing must occur, with limited exceptions, within three days of the state’s motion, although this is subject to potential adjournments. These adjournments are commonly sought to facilitate the discovery exchange or gather mitigating evidence, or sometimes just general unpreparedness. The state and defendant are both entitled to one three-day adjournment and do not have to give a reason to the court for the adjournment. Importantly, the court cannot object or stop the adjournments.

The state usually provides limited discovery, including the Public Safety Assessment (see below), a criminal history, and police reports. As a criminal defense attorney, and depending on the underlying circumstances of the case, I will usually request an adjournment giving my clients’ family or friends the additional time to gather letters from employers, character or reference letters, or even medical information.

A defendant may only be detained pretrial if, after a hearing, the judge finds by clear and convincing evidence that no release conditions would reasonably assure the three goals of the CJR: the defendant’s appearance in court, the safety of the community, or the integrity of the criminal justice process (mostly involving witness intimidation, obstruction, etc.). Additionally, if pretrial detention is sought prior to the return of a grand jury indictment, the state must also establish probable cause that the defendant committed the offenses charge. Notably, the Criminal Justice Reform Act (CJRA) tilts towards non-monetary pretrial release, necessitating the state to substantiate the need for detention before a Superior Court Judge.

The hearing unfolds in two phases: establishing probable cause and deliberating on whether a defendant should be released and under what conditions. The state always presents its arguments first as to probable cause, usually relying upon the complaint and probable cause statement and police reports. The defendant then has two choices, whether to stipulate probable cause for the purposes of the detention hearing or argue that the state has not established probable cause and for release of the defendant. Notably, probable cause is a very low standard, and in limited circumstances it is advantageous to stipulate probable cause.

What is the Public Safety Assessment?

During the second phase of the detention hearing, the pivotal role of the Public Safety Assessment cannot be understated. This document, typically three or four pages, serves as a comprehensive profile encapsulating a defendant’s background and criminal history. For individuals devoid of prior arrests or charges, the Public Safety Assessment is relatively succinct. Conversely, a history of multiple arrests and court appearances results in a more extensive document.

At the crux of the Public Safety Assessment lie two numerical scores, prominently displayed at the top of the document – the risk assessment scores. Ranging from 1 to 6, with 6 signifying the highest risk level, these scores evaluate two critical factors: the risk of non-appearance (FTA) and the risk of reoffending, posing a threat to the community (NCA). Equally vital is the pre-trial services recommendation, also found at the top of the initial page of the Public Safety Assessment. This recommendation spans the spectrum from release on your own recognizance (ROR) to incarceration. A score of 1-1, coupled with an ROR recommendation, presents a challenge for the state to justify detention (although it does happen), while a 6-6 score complicates the defense’s argument for release. The real battleground, however, encompasses scores falling within the intermediary spectrum, such 3-4, 2-3, or even 4-5.

The Public Safety Assessment draws its data from various sources, including fingerprints, name, social security number, and SBI number, alongside offense details such as the degree of the alleged crime and whether there is a violent nature classification. It itemizes all charges, irrespective of jurisdiction, along with their respective dispositions. Of particular significance are instances of missed court appearances within the preceding two years, weighed heavily by the judge hearing the detention motion. Using this information, the state argues for detention, contending that neither monetary, non-monetary, or a combination of both measures can guarantee the three goals of the CJRA. Conversely, a criminal defense attorney leverages mitigating evidence, such as employment stability or character references, to advocate for release.

During the hearing, defendants retain the right to testify, albeit not typically recommended, and present witnesses – a rarity in practice. A defendant may also conduct cross examination of state witnesses and present their own evidence or mitigation often in the form of letters from family, friends, or employers.

The Judge’s Decision on Detention

Post-hearing, the judge will make his or her decision. The subjectivity inherent in the decision underscores the need for a seasoned criminal defense attorney who has navigated the nuances of detention hearings.  Perceptions surrounding detention outcomes vary, with prosecutors and defense attorneys often holding divergent views. This variability underscores the somewhat idiosyncratic nature of bail reform outcomes. Factors guiding judicial decisions on whether to detain a defendant include: the nature and circumstances of the offense charged; the weight of evidence against the defendant; the history and characteristics of defendant; the nature and seriousness of the danger to any other persons or the community if released; the risk of obstructing or attempting to obstruct the criminal process; and of course, the recommendation of the pretrial services found on the Public Safety Assessment.

Detention, if imposed, triggers statutory timelines, mandating indictment within 90 days or the defendant is entitled to a release hearing. A subsequent indictment triggers a 180-day period for case resolution or trial, although this is also fraught with complexities such as excludable time provisions, meaning that the detention clock can be stopped and time tolled. For instance, if you plead guilty, the clock stops. Other reasons for excludable time include: a competency hearing; diversionary program applications (drug court/recovery court); pretrial motions (motions to dismiss, suppression, etc.); continuances requested by the defendant; detention in another jurisdiction; exceptional circumstances (natural disasters, unavailability of defendant/witness); complex cases which must be established by the state; severance of co-defendants; defendant’s failure to appear; recusal of a judge; defendant’s failure to provide discovery; and a catch all of “other reasons.” In practice, contested cases frequently exceed the 180-day threshold, often driven by defense motions or diversionary program applications. If a motion results in the dismissal of the case, it is usually worth the excludable time extensions.

All this information only scratches the surface of criminal justice reform in New Jersey and the case law that has been published since its passage and implementation. Some other areas which we will discuss in later blogs include appellate review of detention decisions, reopening detention hearings, and the release hearing. Navigating New Jersey’s bail reform landscapes demand experienced criminal attorney representation. Whether negotiating release or advocating during hearings, seasoned criminal defense attorneys serve as invaluable allies, safeguarding defendant’s rights within this evolving framework.

Jeremy Lackey

Written By Jeremy Lackey

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Jeremy Lackey is a seasoned criminal attorney who served as an Assistant Prosecutor for the Burlington County Prosecutor’s Office and as a Deputy Attorney General for New Jersey Office of the Attorney General, Division of Criminal Justice, before co-founding the firm Lackey & Miller, LLC.

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