You’ve been arrested. The cops tried to interrogate you, but you’re too smart for that. You gave them nothing, and asked for an attorney. You’re processed, thrown in a cell, and told you’ll be brought before a judge to have your bail set. Now that the exciting part is over, you have a little bit of time to think. What happens if the judge sets a high bail and I can’t afford to post it? What can an attorney do to help me at this point? These are good questions, and knowing the answers is very important, because my first priority is getting you out of jail, and understanding how bail and bail motions work can help ease your anxiety at this stage of the process.
The Eighth Amendment to the Constitution (contained in the Bill of Rights) guarantees us the right to reasonable bail. Bail is a financial guarantee in the form of money, or some other security such as a bail bond, given to the court to secure a defendant’s release from jail. It ensures he will reappear in court voluntarily to answer to the charges. Bail is returned at the conclusion of the case no matter how it is resolved, as long as a defendant appears for each and every scheduled court date. If a client fails to appear for court, he will forfeit his bail, a warrant will be issued for his arrest, and he will be taken into custody once again. If a defendant willfully runs away to avoid the charges, he will likely be charged with an additional criminal offense, 2C:29-7 Bail Jumping. Bail is set, according to a schedule which guides a judge in determining how high to set it. Generally speaking, the more serious the charge, the higher the bail. A judge may set full cash bail, which will require a defendant to post the entire amount in order to be released. Or, a judge an give a defendant a 10% option, whereby a defendant only has to post 10% of his bail, but would become financially liable to pay the whole amount if he fails to appear in court.
Bail set according to the schedule is too high for the vast majority of people. Sometimes in desperation defendants blow all their money trying to cover a high bail, and leave none to hire a quality private criminal defense attorney. This is poor planning. Though they have secured their temporary freedom, those individuals usually find themselves going right back to jail because they were unable to retain a good lawyer who could secure their freedom long term, and that is what really counts. Jail isn’t pleasant, I recognize that. It’s jail! However, if potential clients can take my advice, and be just a little bit patient in the beginning, they can frequently have the best of both worlds; release from jail and an experienced criminal defense lawyer. When a client retains me, the first thing I do is check their bail status, and file a bail reduction motion. In most counties in New Jersey, bail reduction motions must be filed at the beginning of the week, and are scheduled for a hearing at the end of the week. Those couple of days in-between filing and hearing are where my client’s must be patient and bite the bullet. Bail motions allow me to argue that bail should be lowered based on certain factors from the case, State v. Johnson, 61 N.J. 351, A.2d 245 (1972). Those factors are: 1. The seriousness of the charge, and the likelihood of conviction. 2. A defendant’s criminal record (or lack thereof). 3. A defendant’s reputation in the immunity, as well as his mental health. 4. The length of time a defendant his lived in the community. 5. A defendant’s family ties. 6. Employment status. 7. Whether there are members of the community to vouch for defendant’s reliability. 8. Any other factors that bear on the likelihood of a defendant appearing in court. These factors are designed to guide a judge in assessing whether a defendant is a “good risk” for release on bail. By strongly arguing these factors in my client’s favor, I’m frequently able to convince a judge to lower bail to a manageable level, or at least to a level that a defendant or his family can afford the services of a bail bond company. A bail company charges a fee to post a bond in order to secure a defendant’s release. The fee is based on a percentage of the bond.
By following this game plan, a defendant can stretch whatever funds he’s able to allocate for his case, retain a private criminal defense attorney, as well as secure his freedom immediately and long term.