Election day, 2014. On the ballot for New Jersey voters, is a public question regarding bail reform. The question will ask if New Jersey’s Constitution should be amended to allow judges to deny bail to certain dangerous offenders. This is an absurd proposition, unnecessary, Unconstitutional, and will lead to not only additional litigation to an already overburdened criminal justice system, but will also waste the time of legislators who, ultimately, will have to spend time re-tooling their efforts.
The Eighth Amendment to the United States Constitution, is located conveniently in that list of unalienable rights we affectionately refer to as the Bill of Rights. The Bill of Rights guarantees certain God given rights (or human rights, if you prefer), that may not be denied to citizens. Authored largely by James Madison, and ratified in 1791, these amendments were added to assuage the fears of the Antifederalists who hesitated to once again concentrate power in a central government. These rights were included to stand as safeguards for the personal freedoms we hold dear, and limit the government’s power over ‘We The People’. They aren’t merely suggestions, but rather boiler plate upon which our ideals of what it means to be free Americans, stand. The Eighth Amendment prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishment. These clauses have been interpreted by the Supreme Court of the United States, to apply to the states as well. It is widely accepted that while a state Constitution or state laws may grant greater freedoms than those guaranteed in the US Constitution, they may not further restrict those freedoms.
Bail is governed by a whole set of regulations under Rule 7:4-1 – Right to Bail Before Conviction. Bail is set by a superior court judge, according to a statutorily proscribed bail Schedule, which limits and guides judges in the setting of bail for offenses, largely based on the seriousness of the charges. For example, murder is a schedule 1 crime (schedule 1 crimes being the most serious), and the bail may not be set lower than $250,000, and can go as high as $1,000,000. The schedule also prohibits a 10% posting option for this most serious offense, which means the full bail must be posted to secure release from jail. In one of my previous posts, I discussed how I file bail reduction motions for purposes of lowering a client’s bail. When that happens, a judge must carefully review facts as provided by the defense attorney, as well as the prosecutor, pursuant to factors enumerated in State v. Johnson, 61 N.J. 351, A.2d 245 (1972), which a judge must consider in determining the appropriateness of lowering bail. So here, where there are applications made in the superior court to lower a defendant’s bail, a case is carefully reviewed to determine if the defendant in question is a flight risk, and to what extent if any, that they may be a danger to the community. The prosecutor may also make a bail source inquiry, to ensure that the funds used to post bail are not derived from an illegal source. The inability of an individual to post bail for themselves or someone else with funds from a lawful source, will result in an objection by the prosecutor, and the judge will prohibit those funds from being used for bail.
There have been various unsupported assertions made in furtherance of the effort to reform the bail process. The first false claim, is that the bail process is unregulated, and because of that dangerous defendants are easily getting out of jail and wreaking havoc on the community at large. As discussed above, nothing could be further from the truth. A criminal defendant must appear before a superior court judge at least once to have his bail set, and frequently multiple times if he is attempting to have his bail lowered. It is up to the defendant to convince a judge, who may request proof, that he is not a flight risk, and not a danger to the community. The prosecutor has an opportunity to review the financials of the person posting to ensure an absence of criminality. Additionally, judges may place further restrictions on bail, such as house arrest, wearing electronic ankle monitors, and checking in with probation officers. Failure to comply with these restrictions could lead to the revocation of the bail, a warrant being issued, and the defendant being taken into custody. These remedies are in place to deal with non-compliant defendants out on bail, and work quite well. Another assertion which has been made, is that the bail bond industry is reckless, and they post high bail for extremely dangerous individuals on low installment payment plans. This is a highly unrealistic assessment of the bail industry at large. Bail bond companies are in business to make money. If they offer payment plans, the bail is secured with real property the vast majority of the time, or co-signed by individuals who have been financially vetted by the bond company, and guarantee the bail. If a defendant absconds and skips town, the bond company is liable for the entire amount of the bail, and if we are talking about schedule 1 offenses, they could be out anywhere from $250,000 to $1,000,000. It has been my experience as a New Jersey criminal defense attorney, that bail companies take great care in assessing the risk of posting for defendants. A loss that large could easily put a bond company out of business. If a bail company is posting a very high bail for a serious offense, that means their fee for doing so will be a large one. They don’t typically offer low installment payment plans for very high bail, as it could take a decade to collect a fee in the tens of thousands of dollars. I assure you, they want their money as fast as possible, otherwise any risk associated with posting simply isn’t worth it.
The Ninth Circuit Court recently struck down as Unconstitutional, an overly restrictive bail measure in Arizona. That court stated that denying bail without a narrowly tailored, compelling state interest, impermissibly infringed on arrestee’s liberty interests. The court acknowledged that ensuring that defendants appeared at trial was indeed a compelling interest, but the Arizona law was too broad. Applying the logic of the Ninth Circuit, New Jersey’s bail reform would fail for two of the three reasons espoused by the court. There is no evidence on the record that the proposed bail reform addresses an acute problem (there are no findings, studies, statistics, or evidence that this is a frequent and pronounced problem). And, a “no bail” law is Constitutionally unsound, “because it employs an over broad, irrebuttable presumption, rather than an individualized hearing to determine if a particular arrestee poses an unmanageable flight risk.” Lopez-Valenzuela v. Arpaio, No. 11-16487, slip op. (9th Cir. Oct. 15, 2014) (en banc). Oh yes, a state Constitutional amendment like the one New Jersey is proposing, not based on ascertainable statistics, but rather on subjective perception and notions of “social justice”, which simultaneously excludes the type of careful review that present bail regulations afford defendants, judges, and prosecutors, and walks right into the over broad “irrebuttable presumption” as discussed by the Ninth Circuit, is surely doomed for litigation, and ultimately for failure. Someone call the ACLU!
And why a Constitutional Amendment? Why not fine tune existing laws with legislation? Actually, why not enforce the current regulations more carefully before even deciding whether they need fine tuning, because with all of the regulations and safeguards available, if dangerous defendants accused of schedule 1 crimes are easily getting out of jail, someone is surely asleep at the switch (and I’m not talking about the bail/bondsmen). I’m not saying that bad things can’t happen with the present system. I’m not saying bad things don’t happen with the present system. I do submit however, that the kind of harm legislators are seeking to prevent by bail reform is happening in rare instances, and could be even further reduced by more careful application of the present laws. It is certainly happening far less frequently than the narrative which is pushing bail reform would have you believe. As I said, bad things happen, but no legislation will ever be able to prevent 100% of the harm, 100% of the time. To think otherwise is highly unrealistic. It is unfortunate that I feel compelled to condemn the proposal wholesale, as aspects of the contemplated bail reform are positive, and offer to make obtaining bail easier for “no risk” offenders charged with non-violent crimes. Changes to current statutes, which address these issues, could easily be handled legislatively. Why a Constitutional amendment? It seems a bit absolutist, if you ask me, and it surely has one designed purpose: To more tightly control defendants and bail (freedom), and make it almost impossible to change the system with mere legislation once it has been implemented. New Jersey has a citizen control fetish, and demonstrates this time, and time again. We pass law after law, based on knee-jerk reaction. Our illustrious legislators in Trenton do love to pass “feel good” legislation which doesn’t actually accomplish anything substantive, but makes them look like they are addressing the problems of our state. These types of laws frequently have three things in common: Very little legal or Constitutional analysis goes into their construction, and are frequently based on a desired social agenda without regard to individual rights. They frequently require additional funding to work (which, in New Jersey usually translates into tax hikes), and they tend to curb the freedoms of the citizens in the Garden State, while simultaneously increasing the regulatory powers of our state government. As a result, our state has become over legislated, over regulated, over taxed, and a less pleasant place to live. This is yet another example…
Additional Resources:
Simon: NJ Bail Reform Ballot Question – A Definite ‘Yes’ Vote, Times of Trenton, November 03, 2014
N.J. Bail Reform Efforts Welcome, New Jersey Law Journal, August 29, 2014
9 Cir: Arizona’s No Bail Law Unconstitutional, Crimigration, October 16, 2014