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NJ Courts Wrestling With Bail Reform

New Jersey recently passed historic bail reform legislation. Lawmakers were concerned that the law of pre-trial detention (bail) unfairly favored those who could afford to post bail and simultaneously punished those who could not. In their eyes, this was unjust. So, bail reform was born.

Those lawmakers did away with the old “bail” and adopted a new approach: the “pre-trial detention hearing.” The Courts are still trying to figure out what exactly that means.

New Jersey is moving in the direction of keeping more people awaiting trial for criminal charges out of jail. The law now, in fact, favors a presumption that unless a person is a flight-risk or a danger to their community they should not be behind bars. Rather, they should be free to go on with their normal lives until they are actually convicted of a crime.

The detention hearing is the prosecutor’s opportunity to make its case that a person is a flight-risk or a danger to their community. Beyond that, much remains unclear.

The Courts are still fleshing out what these hearings actually entail, what prosecutors have to bring to the table here to make their case, and what opportunities to counter-back must be given to the defense.

A recent case held, “The Act provides limited guidance regarding the procedures the court must employ at a pre-trial detention hearing.” (State of New Jersey v. Amed Ingram; March 1, 2017). So begins the Court’s analysis of whether the rights of a local area man were violated at a pre-trial detention hearing, where he was Ordered held without the state producing witnesses that could be cross-examined by the defense.

The Court, for example, held in the above case that prosecutors did NOT have to call witnesses to make its case. It was enough to show that Defendant had skipped 5 prior court appearances, and was unlikely to appear for trial if released.

However, in another case that recently went all the way up to the New Jersey Supreme Court, the Court decided that before a detention hearing prosecutors must show defense counsel all evidence in their possession that could later be introduced at trial.

What if the accused wants to present his own witness at the detention hearing, to testify that he is not a flight risk or a danger to his community? Is the court required to hear Defendant’s witness? The Courts have still left this door opened, and not ruled directly on this point.

The law is so new. As a result, no one can really say for sure how it’s going to shape up. Bail bondsmen hate it. Prosecutors say it is making it impossible for them to do their jobs. Already there is some pushback, and some hints that all the provisions of bail reform might not be here to stay.

The only thing we know for sure right now is that the law is changing. It’s changing quickly. Careful attention is needed to watch where it’s going. Prosecutors also inform that many of the defendants who have been released on bail conditions have broken those conditions. Prosecutors are forced to go to Court requesting warrants for broken pre-trial release conditions.

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