Jail or Bail? Voters to Decide This November If Judges Choose

TRENTON – It’s fair to state Garden State legislators weren’t thrilled having to swap shorts and T-shirts for suits and ties July 31 when they were summoned into special joint session by Gov. Chris Christie. What the Senate passed that day, 31-0, and the General Assembly did Aug. 4, 66-0-8, may have wide-reaching effects for citizens faced with bail or jail.
Before that happens, voters would have to approve, in the upcoming November election, an amendment to the state Constitution.
Focus of the joint session was to vote on two bills, including a constitutional amendment that would allow, under certain circumstances, pretrial detention of those deemed dangerous to public safety in criminal cases, to be held without bail. It would afford judges the latitude to allow those of meager means, who may not have money for bail and not deemed a risk to safety or flight, to be released while awaiting trial.
The governor had hoped both houses would pass the measures so he could sign them into law, but the Senate took action while the General Assembly waited four days longer.
In the Assembly, Speaker Vincent Prieto reportedly said members had questions. One member expressed the sentiment that because the governor considered it an emergency he did not think it was, and felt there was no race to get the bill passed.
In the lower house, Assemblyman Robert Andrzejczak (D-1st) was one of three primary sponsors of ACR-177, a companion to the Senate bill. Other sponsors included Vincent Mazzeo (D-2nd) and Timothy Eustace (D-38th).
“As it stands now, parts of our constitution are outdated due to recent changes in the law while other parts require a modernization to reflect the realities of current-day society,” stated Andrzejczak in a release after passage. “These changes would protect both the public and those that are truly innocent while improving our overall criminal justice system.”
“This constitutional amendment is about protecting our families,” stated Mazzeo. “No longer would those accused of violent crimes be eligible to roam our streets while awaiting trial, free to continue the cycle of violence and interfere with investigations. This smart approach to overhaulilng our criminal judicial system will boost the integrity of our courts, and that’s a win for New Jersey residents,” he stated.
While eliminating the upfront right to bail, the proposed amendment would still make all persons eligible for pretrial release from jail by either bail or another means. However, an individual’s release could be denied by the court based upon concerns that a jailed person, if released: would not return to court when required; would be a threat to the safety of another person or the community; or would obstruct or attempt to obstruct the criminal justice process.
As passed the ballot question’s wording would be:
“Do you approve amending the Constitution to allow a court to order pretrial detention of a person in a criminal case? This would change the current constitutional right to bail.
“The change to the Constitution would mean that a court order that a person remain in jail prior to trial, even without a change for the person to post bail, in some situations.
“The amendment also removes language in the Constitution about bail eligibility for death penalty cases. The death penalty no longer exists in New Jersey.”
The proposed interpretive statement states that the Constitution requires a court to grant bail to a jailed person in a criminal case before trial. If the person posts bail, the person is released from jail pending trial.
The amendment would give a court the option of ordering a person to remain in jail in some situations. The court could order such detention based upon concerns that the person, if released, will not return to court; is a threat to the safety of another person or the community; or will obstruct or attempt to obstruct the criminal justice process.
The amendment authorizes the Legislature to pass laws concerning pretrial release and pretrial detention. The amendment would take effect Jan. 1, 2017 to allow any new laws to be enacted and their requirements established.
The amendment would also remove language in the Constitution about bail eligibility for death penalty cases, since the state no longer has a death penalty.
Christie cited failures of the present system of persons who posted bail, then, when freed, committed more heinous crimes. Such would be less likely to happen if the amendment passes in November.
Among cases Christie cited was a family at home in Trenton when persons, free on bail, entered their home, held a gun to their 8-month-old child, and said if they did not give them what they demanded, they would put the child in the oven.
That said Christie, “is the result of a broken system.”
He also cited “thousands of broken families” whose bread-winners lost their jobs and homes because they committed a minor crime, and did not have the ability to post bail. Hence, they languished in jail awaiting trial, he said.
The proposed amendment states, “…Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person of the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.”
“This is not easy to get done,” said Christie.
“I do not believe that anybody in this room on either side of the aisle ever thought they would see the ACLU standing with me on something that I support. Yet here we are today. Miracles do happen.
“Let us not let this opportunity to seize the actions that we need to seize from this type of collaboration pass by the wayside. By the way, there will always be people who will want more time. There will always be people who will say ‘Give us another six months to study it. Set up another commission. Set up another committee. Have six more meetings,’” said Christie.
“There comes a moment when it’s time to act. And I believe that I have been patient. Two and a half years of conversation and discussion, it seems to me is sufficient. The support that we have broadly across this state is evidence of the fact that we have worked hard and together to come up with a compromise that is not a partisan issue. It’s not even a bipartisan issue. It is a nonpartisan issue. It is time for us to act,” Christie stated before the joint session.
Earlier this year, March 20, the Supreme Court Committee released its report by the Joint Committee on Criminal Justice. One of its recommendations dealt with the way bail is administered and for the enactment of a speedy trial law.
That committee was established by Chief Justice Stuart Rabner in June 2013. Among its members were judges, prosecutors, public defenders, private counsel, court administrators as well as staff from the Legislature and Governor’s Office.
“The committee confronted some very difficult problems relating to the current bail system and delays in bringing criminal cases to trial,” stated Rabner. “It is telling that nearly all of the committee’s recommendations, which include far-reaching proposals—have the unanimous support of judges, prosecutors, and defense counsel,” he continued.
Among recommendations at the time:
Supervised pretrial release:
New Jersey’s current system of pretrial release is largely dependent upon a defendant’s financial resources. Defendants who are unable to post bail are incarcerated before trial, which can have significant consequences. Poor and minority defendants are more likely to be affected.
The New Jersey Constitution guarantees all defendants the right to bail. Judges have no authority to detain even the most violent and dangerous defendants if they can afford to post the amount of bail set.
The current resource-based system presents problems at both ends of the system: some people are held on less serious crimes, with little risk of flight, only because they cannot pay relatively minor amounts of bail; others who pose a significant threat to the community and a substantial risk of flight must be released if they can afford to post bail.
The committee recommends a statutory change from the present “resource-based” system to a “risk-based” system. Under a risk-based approach, judges rely on objective factors to assess the level of risk an individual defendant poses and then impose appropriate conditions of pretrial release.
Pretrial service officers are needed to monitor compliance with nonmonetary conditions of release and supervise defendants who are released pretrial.
Preventive Detention
For certain defendants, no combination of release conditions can reasonably ensure either the safety of the community or their appearance in court. A system of preventive detention would permit judges to consider those questions and decide whether to detain or release a defendant pretrial.
The recommendations for a risk-based system of bail and pretrial detention, are interdependent and should not be considered individually. The recommendations call for both constitutional and statutory amendments.
Speedy Trial
The New Jersey and U.S. Constitutions provide the right to a speedy trial. Under New Jersey law, there are no specific timeframes to determine when that right has been violated.
Defendants sometimes wait years between arrest and trial. Particularly for defendants who are incarcerated pretrial, those delays can cause serious, practical problems and affect how their cases proceed.
Incarcerated defendants are more likely to receive less attractive plea offers, to plead guilty if they have already served a significant amount of time in jail, and to receive longer sentences.
The committee recommends that the Legislature adopt a speedy trial act that sets forth specific timeframes in which defendants must be indicted and brought to trial. Recommendations…provide detailed proposals for incarcerated defendants and defendants who are released.
Resources
The committee’s recommendations for bail reform, preventive detention, and a speedy trial act are historic in their scope.
The proposed recommendations require pretrial supervision of defendants who are released and sufficient numbers of judges, prosecutors, and public defenders to handle cases and trials more expeditiously.
The proposed changes depend on the collaborative effort and full commitment of all three branches of government and the allocation of sufficient resources to succeed.
Other recommendations
The committee proposes a series of changes to improve case management and the movement of cases through the courts.
The recommendations include changes in procedures for pre-indictment court activities such as first appearances, appointment of counsel, and other matters.
A final series of recommendations addresses post-indictment activities and is intended to reduce the amount of time to resolve a case.