Legislation is in gear that would allow release of nonviolent criminal defendants on nonmonetary bail conditions, which proponents claim would slash jail costs while ensuring court appearances.
A bill introduced Monday by Sen. Raymond Lesniak, D-Union, S-2874, would let judges order a defendant's release "subject to the least restrictive conditions … as an alternative to setting bail."
Those conditions could include:
• Supervision by a designated person who agrees to report violations and reasonably ensure the defendant's presence in court.
• Mandatory reporting to law enforcement or a court-designated agency.
• Maintenance of or search for employment.
• Restrictions on travel, personal associations and living arrangements.
• Prohibitions on contact with purported victims or witnesses.
• Restrictions on firearms possession, and alcohol and drug use.
• Other conditions "the court determines is reasonably necessary to assure the appearance."
The legislation provides for the Supreme Court to adopt new rules and for judiciary officials to issue directives, though it does not indicate how monitoring would be administered or funded.
Defendants would be ineligible if charged with first- and second-degree crimes subject to statutory bail restrictions under N.J.S.A. 2A:162-12, including violent crimes, theft by extortion, endangering child welfare, corruption or influencing of a jury, burglary, eluding police, weapons offenses, recruiting gang members, racketeering and some drug-related offenses.
Judges would have to revoke bail if the defendant violated the conditions or lied to the court, and the defendant would no longer be eligible for pretrial release. In the event of a violation, a bail hearing would be required within 12 hours of arrest.
The bill, referred to the Senate Law and Public Safety Committee, is co-sponsored by Sen. Sandra Cunningham, D-Hudson.
Another bill, A-2056, introduced on June 7, has similar language but includes provisions that would add bail restrictions for violent offenders. That measure's primary sponsor is Assemblyman John Burzichelli, D-Gloucester.
Judges have been authorized to impose reasonable bail conditions at least since State v. Johnson, 61 N.J. 351 (1972), says Darren Gelber, president of the Association of Criminal Defense Lawyers of New Jersey.
Those conditions could include drug tests and surrender of the defendant's driver's license.
But exercise of that authority is "very haphazard and not very uniform across the state," says Gelber, a partner with Wilentz, Goldman & Spitzer in Woodbridge.
The legislation "would be very different" and is "certainly a step away from the default position" that money should drive the process, he says.
Aside from being costly, prolonged pretrial incarceration can lead to guilty pleas, even if the defendant thinks he or she isn't guilty, Gelber adds.
"I fear that it's a more common occurrence than court officials realize," he says. "A prime motivating factor for people pleading guilty is that they're going to get to go home that day."
Any measure intended to decrease jail populations is viewed favorably by the ACDL-NJ, but the legislation raises some questions, chiefly who will be responsible for pretrial monitoring, Gelber says.
The Drug Policy Alliance, which has called for bail reform, has concerns, too.
It is pushing officials for more comprehensive bail reform, including creation of a state pretrial monitoring agency, standardized risk assessments immediately after arrest and a phasing out of for-profit bail bond operations that drive the monetary system, says Roseanne Scotti, head of the organization's New Jersey chapter.
"Even if we had pretrial services, you'd still be saving money," Scotti says, adding that monitoring costs are a fraction of jail costs. "There's still some … logistics to work out, but it certainly can be done."
An alliance-commissioned study, released in March, found that county jails house about 15,000 inmates on average, most of whom are awaiting trial. At the time of the study, pretrial detainees had been in custody an average of 314 days, more than half were held on nonviolent charges and 40 percent had the option to post bail but couldn't afford to, according to the report.
Chief Justice Stuart Rabner cited that report in his May 17 remarks to the New Jersey State Bar Association, when he announced formation of the Joint Committee on Criminal Justice, which will examine bail reform and other issues.
"What it means is that some inmates who are unable to make even modest bails are held in custody pretrial — potentially for extended periods of time," Rabner said. "That's not a healthy practice for a system of justice, and it needs our attention[.]"
Gov. Chris Christie, too, has urged a bail system mirroring that used in federal courts, which have an extensive pretrial services program.
The governor also has called for a constitutional amendment that would foreclose bail for those charged with some violent crimes. Such measures have been introduced in the Legislature, with both Republican and Democratic sponsorship.