New Jersey’s Bail Reform: What to Expect in 2017

It’s Coming: New Jersey Bail Reform

New Jersey has been making headlines recently after passing comprehensive bail reform legislation that will change how criminal defendants await their trials. The constitutional amendment, which will go into effect Jan. 1, 2017, allows judges to deny bail to high-risk offenders and release low-risk offenders from jail using a non-monetary system.

The Reform Explained

The bill originated in the Senate and was later amended to also allow for the pre-trial release of low-risk defendants and the establishment of an alternative bail system. In final reading, the bill (S946/A1910) passed the Senate 29-to-5 and the General Assembly 53-to-7 with nine abstentions in the summer of 2014. New Jersey voters enacted the law that autumn by passing — 891,373-to-550,698 — a general election poll question.

Before the amendment, all defendants — regardless of the severity of their accused crimes — were eligible for bail due to a 2007 repeal of the death penalty that nullified the only legal exception.

A significant part of the reform shifts the qualitative elements of bail from money to risk. In the former bail system, how much money a defendant had determined whether or not they would await trial in jail. Under the reform, judges will determine how long a defendant is in jail based on their risk. Risk will be determined based on factors like the severity of the crime, the defendant’s criminal history, if he or she poses a threat to the community if released and the person’s likelihood to hinder the legal process if released.

Low-risk defendants allowed release will complete bail through an alternative system. Examples of the non-monetary bail include remaining in the custody of a court-designated supervisor, maintaining employment, maintaining an educational program and regularly participating in a pre-trial program.

Although jail costs are expected to go down, the state will need to hire more judges and law enforcement officials — an estimated cost increase of more than $20 million — to facilitate the new workload. Court filing fees have already been raised in preparation for the added expense.

Although it won’t be in full-effect until next year, three judicial districts — Passaic County and the Camden and Morris/Sussex districts — will participate in a pilot program of the reform starting in March 2016.

National Bail Reform

On a national scale, bail reform has become a hot topic as increasingly more groups and politicians criticize the cash bail system for how it disproportionately affects the poor and African American populations. The recent high-profile cases of Trayvon Martin, Michael Brown, Eric Garner and Kalief Browder have helped turned the public’s gaze toward injustices in the criminal justice system.

Politicians wary of increasing budget constraints have also been talking of making changes to the costly criminal justice system most of America employs now. New Jersey is one of just a few states including Virginia, Delaware, Colorado, West Virginia and Hawaii spearheading the movement to change the way they approach bail.

Reform Supporters

The old cash bail system has many critics, and consequently many key lawmakers have spoken out in support of the reform. Some of the new law’s biggest praise came from New Jersey Supreme Court Chief Justice Stuart Rabner, who called the legislation the most significant criminal justice reform measure the state has enacted in years, and American Bar Association President and New Jersey attorney Paulette Brown, who said the reform was “fresh thinking” and an example for other states to follow.

The attorneys at Rosenberg | Perry & Associates have supported the bail reform from the beginning; we believe the new system will have a dramatic impact on New Jersey’s criminal justice system.

The vast majority of incarcerated individuals in New Jersey are awaiting trial, not serving a sentence. Many are accused of relatively minor nonviolent crimes and bail is typically set low, however not everyone can afford to pay the amount. This system has disproportionately affected those with limited financial means.

Many who do choose to pay bail do so to avoid spending time in prison, rather than making decisions about whether or not to pursue their constitutional right to trial based on consideration of the evidence. These defendants often feel they are forced to choose between their freedom and going to trial. This isn’t fair or just.