correct size blogOn Monday, a Federal Appeals Court upheld New Jersey’s recently enacted bail reforms, in Holland v. Rosen.  Last year’s Constitutional amendment and the associated Criminal Justice Reform Act, changed the State’s pretrial release system from cash-based bail system to public safety assessment model.  Under the changes, the newly created Pretrial Services would perform public safety assessment where each of the eligible defendants would receive a score relating to their risk of failing to appear and for new criminal activity.  Not all defendants are eligible under the new reform, only those accused of committing less serious and nonviolent offenses.

Using the risk score, defendants are given conditions for pretrial release that do not include cash bail.  These conditions include reporting once a month by phone or in person to Pretrial Services, and for some electronic monitoring and/or home detention.  Each defendant is afforded a pretrial release hearing before a judge which must occur within 48 hours of their arrest.  At this hearing, the prosecutor may request the defendant by held regardless of the outcome of the risk assessment if they have good cause to believe the defendant is a flight risk or is likely to commit additional violent crimes if released.

In Holland, the defendant was arrested and charged with assault after a fight at a bar.  Under the guidelines of the new pretrial release standards, his release was conditioned on electronic monitoring through an ankle bracelet and was confined to his house only able to leave for work purposes.  The defendant argued that the new bail reform law violated the U.S. Constitution’s Excessive Bail Clause because the new pretrial release conditions were too strict, and further argued that the Constitution provides a right to cash bail.  The defendant sought a preliminary injunction which would have precluded further use of the bail reform portions of the Criminal Justice Reform Act until a trial on the Constitutional merits could be held.

The Appeals Court upheld the lower court’s denial of the injunction, finding that there is no substantive right to cash bail and because of this the defendant is unlikely to succeed on the merits of his case, a requirement necessary before a court will grant an injunction.  This ruling allows the new pretrial release structure to remain in place and the analysis found within the holding acts as a shield for additional Constitutional based attacks on the Criminal Justice Reform Act.

While it may not seem apparent there is a municipal impact to this ruling.  Under the Criminal Justice Reform Act, each defendant is entitled to a detention hearing and is entitled to representation at the hearing.  When the defendant cannot afford representation an attorney is provided for them, this means the public defender.   When the charge is based on a disorderly persons offense the municipal public defender under certain circumstances has been tasked with providing representation at the Superior Court level.   Although the League was able to secure some relief to this requirement (see here) there are still some occasions where the municipal public defender must travel to the Superior Court to defend an individual.  Had the Federal Appeals Court ruled differently and imposed an injunction this requirement on municipal public defenders would have been alleviated as well, at least until a decision was made on the merits.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org,609-695-3481 x137.