New Jersey Attorney General Christopher Porrino

A challenge to New Jersey’s bail-reform measures reached a critical phase on Tuesday as a federal judge in Camden heard arguments on an insurance company’s bid for a preliminary injunction against implementation of bail reform in New Jersey.

The Criminal Justice Reform Act, which has come under constitutional challenge from Lexington National Insurance Corp., which has contended its surety business has dwindled under the new law, and Brittan Holland, a Sicklerville man who was placed on home detention and ordered to wear a monitoring device after he was charged with assault. The suit was brought on behalf of a class of people who are unable to get cash bail under the act, which went into effect Jan. 1. Paul Clement, who served as U.S. solicitor general under President George W. Bush, and now is with Kirkland & Ellis in Washington, is on the team representing the plaintiffs.

Defendants in the suit are Attorney General Christopher Porrino, Camden County Prosecutor Mary Eva Colalillo and Kelly Rosen, a Superior Court of New Jersey employee in Camden who enforced the act against Holland.

To support their bid for a temporary injunction, the plaintiffs asserted that they are likely to succeed on the merits and that plaintiffs will suffer irreparable harm without injunctive relief. “This case turns on first principles of constitutional law. There is no more basic constitutional protection than the right of ordinary, law-abiding citizens to be free of government custody, detention or other forms of physical restraint,” they said.

But the state said a preliminary injunction is not warranted because Holland is unlikely to succeed on the merits and that the federal court should abstain from interfering with his ongoing state prosecution.

The suit, Holland v. Rosen, filed on June 14 in federal court in Camden, is not the only challenge to bail reform in New Jersey. On July 31, a Cumberland County family filed a constitutional challenge to the system in federal court on behalf of Christian Rodgers, 26, of Millville, who was allegedly shot and killed by a man who was released from custody under auspices of the new system. Rodgers’ family have joined forces with television personality Duane Chapman, better known as “Dog the Bounty Hunter,” to oppose New Jersey’s bail revamp.

In the Holland case, the plaintiff was charged with aggravated assault after he got in an argument about the Philadelphia Eagles at Joe’s Tavern in Winslow. According to the state, Holland’s victim suffered multiple facial fractures in the assault, and he fled the scene but was found at home wearing clothing covered in fresh blood.

The Camden County Prosecutor’s Office moved to seek pretrial detention due to the severity of the attack and Holland’s prior conviction for simple assault, the state said. Holland was represented by a public defender when he negotiated the pretrial detention terms, and he accepted the terms in an appearance before a Superior Court judge, the state said. He was placed on house arrest and ordered to wear a monitoring device on his ankle instead of posting bail. He is required to report to pretrial services every two weeks.

Holland says he is deprived of the ability to shop for groceries or to spend time taking his son to baseball practice. In addition, he endures pain and discomfort from the bulky device on his ankle, must sit next to an outlet for multiple hours a day to charge the monitor, cannot swim in a pool, and suffers social stigma if he exposes his ankle bracelet in public.

The plaintiffs have no quarrel with the state’s objective of reducing the number of detained defendants who cannot afford bail, according to their complaint.

“But the state can achieve that goal while offering both monetary bail and other conditions, as appropriate,” the complaint states.

Lexington National, based in Cockeysville, Maryland, says on its website, “bail is our only business and we have years of retail bail experience.” It writes in the complaint, “the CJRA largely eliminates the business of commercial sureties like plaintiff Lexington National, which help criminal defendants obtain their pre-trial freedom without infringing on their civil liberties.”

The suit brings counts for denying the right to bail, in violation of the Eighth and Fourteenth Amendments; deprivation of liberty without due process, in violation of the Fourteenth Amendment; and unreasonable search and seizure, in violation of the Fourth and Fourteenth Amendments. It seeks a declaration that the CJRA violates the constitutional rights of Holland and the other class members, as well as preliminary and permanent injunctions against its enforcement, as well as compensatory damages and costs of suit.

The state, on behalf of the defendants, has filed a motion to dismiss in lieu of an answer. The state argues that Holland and the insurance company lack standing to bring claims against the defendants. Holland lacks standing because imposition of bail would not redress his alleged injury—a court would still be free to impose nonmonetary pretrial release conditions, the state said. And Lexington National lacks standing because it doesn’t have a particularized injury of its own, as opposed to an abstract injury shared by all bail bondsmen in New Jersey, the state said.

Lexington National’s invocation of third-party standing fails “because it cannot allege a constitutionally protected legal entitlement to offer bail to criminal defendants and because it cannot allege the type of close and confidential relationship between it and its clients that possibly could justify third-party standing,” the state said. In addition, Holland’s criminal proceeding in state court is ongoing, and he could raise his constitutional challenge to his pretrial release conditions there, the state said. The complaint “fails to state a claim upon which relief can be granted because a criminal defendant does not have a constitutional right to the ‘option’ of cash bail,” the state argues.

Cash bail does not protect public safety, and it has a demonstrated history of harmful, discriminatory impact, the ACLU-New Jersey said in an amicus curiae brief it submitted along with the national ACLU, the National Association for the Advancement of Colored People-New Jersey Conference, the Latino Action Network and the Drug Policy Alliance.

The Attorney General’s Office declined to comment on the case. Clement and his co-counsel, Michael Williams, did not return calls.