Bail Reform in New Jersey

March 1, 2017

If you or someone you know has been locked up and charged with a criminal offense under the New Jersey Criminal Code, we can assist them at their bail hearing, help them get removed from jail, and prepare them for their court appearances.  

There have been massive reforms in New Jersey to rules governing bail and pretrial release. If you have been charged with a criminal offense in New Jersey, the determination of bail is a critical step in your case.

In New Jersey, prior to January 1, 2017, the bail process was usually set at a dollar amount coinciding with the severity of the crime or denied by a judge. The amended New Jersey bail reform bill “the New Jersey Bail Reform and Speed Trial Act” has replaced the dollar amount or monetary release system (asking for the defendant to post a set amount of money) and replaced with a non-monetary risk assessment.

What is this risk assessment and how does it function in court? Judges are required to use a digital risk tool during a Risk Assessment Hearing that will analyze all aspects of your case.

During the Risk Assessment Hearing, which is the first hearing held at least 48 hours after an arrest, the judge will consider multiple factors in assessing whether to permit a release. Among other factors used by the Judge during the Risk Assessment Hearing, the risk tool is computer assesses a defendant’s behavior, type of alleged crime, criminal history, and their age. With all the information in the system, the risk tool produces a risk score which, provides guidance on the risk of granting bail to that specific defendant. The information is designed to help the judge determine where there is risk that (a) the defendant will skip their court date (b) the defendant will commit another crime or (c) the defendant will commit a violent crime. Armed with this knowledge, judges can make their decisions in conjunction with the tool’s analysis.

Prosecutors will be present at this Risk Assessment Hearing and may present arguments for why bail should not be granted or why pretrial release is not warranted. If a prosecutor wants to argue for detainment and denial of bail the court will grant 72 hours to the State to hold a plenary hearing on the issue of bail. During this hearing the State has the burden of proving by clear and convincing evidence why the suspect should be subject to pretrial dentition and denied bail. Prosecutors apply for pretrial detention during the risk assessment hearing in a myriad of cases, including violent first- and second-degree offenses enumerated under the No Early Release Act, crimes involving a firearm under the Graves Act, and crimes involving domestic violence. More generally, New Jersey Prosecutors may lobby for denial of bail and pretrial confinement in any case where the prosecutor believes there is a serious risk that the defendant will flee, will pose a danger to specific persons or the community, or will attempt to obstruct justice or threaten, injure or intimidate a victim, witness or juror.

In addition to the timeline requirements, prosecutors must also provide extensive discovery to the defense. A New Jersey Appellate Division also recently held in State v. Robinson, the first case dealing with the new bail reform law, that Prosecutors can’t only supply a probable cause affidavit and preliminary investigative report. The New Jersey Appellate Division stated that the prosecution must provide the defense with any documentary evidence, specifically exculpatory evidence.   

To recap the new bail reform law creates a general presumption against preventive detention after arrest, quickens the time for a hearing, and strengths the discovery requirements that the prosecution must to provide to the defense. Having a legal defense team and retaining a seasoned criminal defense attorney at your bail hearing to review discovery and challenge the prosecutor is essential to ensuring your release.