It has been reported that New Jersey leads the nation in bail reform, this the result of the Bail Reform Act (N.J. Pub Law 2014, Ch. 31), approved in August 2014 and authorized by a constitutional amendment which had been approved by the voters in 2014. In the past, bail in New Jersey could be denied only in “capital offenses when the proof is evident or presumption great.” (Art. I, par. 11). Persons charged with other types of offenses were entitled to bail on “sufficient sureties,” which could not be “excessive.” (Art. I, par. 11 and 12). Bail was set based on factors that included the risk of non-appearance, the likelihood of conviction, criminal record and the potential sentence. The result of the former system was that thousands of people languished in custody before trial only because they could not afford to raise the required bail.

Now, persons charged with criminal offenses are generally released without bail. Some are held on preventive detention, and others subject to conditions of pretrial release. Under the new act, the issue of pretrial release is based principally on the judge’s assessment of the level of risk for the defendant after considering such factors as age, prior record and the charges against him or her. The person may then be released on conditions imposed by the judge without the need to post a monetary bail. A recent Wall Street Journal article said that from January through Nov. 13, 2017, judges in our state required far fewer people to post bail as contrasted with the situation prior to the new act, where far greater numbers of persons were required to do so.  The article also indicated that “…the Pretrial Justice Institute, a national non-profit that studies bail practices, gave New Jersey an ‘A’ for its pretrial system, a grade it gave no other state in the country.”

Our new system is not necessarily perfect. Some might argue that there is a possibility that more crimes will be committed because the absence of a bail requirement will result in more people being released from jail. That risk, if it exists, is the risk that the Legislature exchanged for a just bail system. And even if only one crime comes to pass, critics of the bail system will contend that it is flawed. However, on balance, it seems beyond reasonable question that our new system of bail has been vastly improved. As 2018 begins, we express the hope that bail reform in our state will continue to advance its objective to diminish the injustice caused when people are forced to remain in custody only because they lack the financial resources to post bail.