Bail Reform and Domestic Violence

In 2017, the Criminal Justice Reform Act went into place in New Jersey to address bail reform and encourage a speedier trial. The biggest change was to bail, which will allow dangerous criminals who are charged with non-capital crimes to be held without bail after arrest. Additionally, the Act addresses and widely eliminates the use of monetary bail, which has had a discriminatory effect on defendants in poverty due to their inability to pay even small amounts of bail.

Instead of this monetary system, the NJ bail reform law requires a risk-based approach. This requires courts to look at a number of factors when determining bail, such as whether a defendant will flee, commit new criminal activity, or obstruct justice by intimidating witnesses or even victims. According to the Attorney General, the new system is designed to stop the wealthy and dangerous criminals from being able to pay their way out of jail, while nonviolent, but poor offenders, have to stay. The hope is that this system will reduce the number of prisoners, as well as the cost to taxpayers to house them.

The NJ bail reform law has also made it abundantly clear how the process should be when recommending bail (or not) for a defendant. First, if the state wants to seek pretrial detention, they must file a complaint-warrant, instead of a complaint-summons. Upon arrest, the presumption is that there should be no preventive detention after arrest, unless the defendant is charged with murder or is facing a term of life imprisonment. Then, the burden is on the prosecution to show why detention should be required in each case, based on the risk the defendant presents to the community at large, himself, or to the justice system (by fleeing). After the warrant is issued, a defendant is taken to county jail, where they are held for up to 48 hours, when they will have their first appearance to determine whether the defendant should be detained or released. The prosecution has to show, by clear and convincing evidence, that no other conditions for release will be able to reasonably secure the defendant’s appearance in court and protect the safety of the community. The bill has also created a computer program which assesses the risk of defendants, including a failure-to-appear scale, predicting the likelihood of whether the defendant will fail to appear in court; a new criminal activity scale which will determine whether the defendant will commit new crimes, and a new violent criminal activity, which tells the judge if defendants are likely to engage not just in crimes, but violent crimes, if released. This new facet in the NJ bail reform laws will increase consistency in decisions for those defendants who are detained and who are released.

This law applies to every defendant arrested, even those who are arrested under the ‘mandatory arrest’ provision of the domestic violence act of New Jersey. Police officers are required to arrest a suspect if the victim exhibits signs of an injury stemming from an act of domestic violence, if there is probable cause to believe that terms of a previously ordered no contact order has been violated, if a warrant is already in effect, or if there is probable cause to believe that a weapon has been involved in committing an act of domestic violence. In spite of this mandatory factor, it appears that a complaint-warrant will not necessarily be issued on every case where mandatory arrests from domestic violence occur. This is due to the fact that the Attorney General guidelines have additional factors on top of the ‘mandatory arrest’ factors that delineate between the summons-complaint and the warrant-complaint. However, any crime or offense involving domestic violence will be eligible for detention, given that the risks for obstructing justice by tampering with witnesses and victims are high. Some practitioners believe that, practically speaking, a complaint-summons will only be issued in cases where the state is not seeking any no-contact provisions. In other words, a defendant who was mandatorily arrested under the domestic violence provisions will almost always face pretrial detention unless the victim has not stated that he or she does not want a no contact provision. For now, it seems that in practice, most defendants accused of violating the domestic violence provisions under the mandatory arrest clause will at least have to face a hearing to determine whether or not they should be detained pre-trial.

Some critics of the NJ bail reform laws are prosecutors, who recently suffered a blow when the NJ Supreme Court determined that prosecutors must turn over more evidence up front, like witness statements, when determining whether to detain someone pretrial. Prosecutors have lamented first the difficulty in providing this evidence, as well as worrying that revealing so much evidence before trial could undermine ongoing, related investigations and lead to witness intimidation. The court disagreed, reminding the state that it can always file for protective orders in cases where they think releasing such evidence would jeopardize the safety of witnesses and victims. Other critics are worried about the costs associated with this, requiring more police officers to check in on defendants, as well as keeping courts open more often to meet the requirement to have a hearing within 48 hours of detention – even over the weekends.

It is still early in the life of the law, but compared to this time last year, there are currently nearly 2,400 fewer people in New Jersey jails awaiting trial. But law enforcement officials have mixed feelings on the matter, citing problems with the computer system which does not account for actions done when the defendant is a minor, even if violent. For the most part, however, those involved in the justice system are willing to wait and see the effects of the NJ bail reform laws, and are encouraged by the fact that the system is far more objective. It opens up conversations about risks, versus simply releasing or detaining people based on their ability to pay. For victims of domestic violence, there are certainly some concerns about whether or not the defendants will be dangerous enough for the system to remain in place, although prosecutors have the ability to bring a case for their pretrial detention in matters of mandatory arrest.

If you have any questions or concerns about the effect of the new NJ bail reform provisions and domestic violence, call the Law Offices Peter Van Aulen at 201-845-7400 for a consultation.