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  • James Wronko

No Right To Pre-Trial Bail In New Jersey

In January 2017, major changes to New Jersey’s bail system were implemented. New Jersey voters approved an amendment to the New Jersey constitution which eliminated the right to bail.

Before the amendment, all defendants – regardless of the severity of their accused crimes – were eligible for release on bail prior to trial.

New Jersey has changed from a commercial or resource-based system (posting cash) to a risk-based system of pre-trial release. This change was expected to have a number of advantages including that eligible defendants will be granted release, or not, based on an objective, standardized risk assessment. The risk assessment tool evaluates the likelihood of a defendant being arrested for a new crime, a new violent crime, or failing to appear in court.

Following the risk assessment, an eligible defendant may be released on his or her own recognizance; granted a non-monetary release with certain conditions; released with monetary bail only to ensure a future appearance; or released with some combination of monetary and other conditions.

In addition a defendant may not be released, but can be ordered held in jail awaiting trial. This would happen only after a motion by the State at the sole discretion of the prosecutor. The new law puts legal protections in place for defendants in the event of such a motion and a detention hearing that would follow.

These protections are supposed to include the right to be represented by counsel and to cross-examine witnesses. In these cases where a defendant’s release or detention hinges on the outcome of a detention hearing, it is going to be especially critical to have an attorney’s representation as soon as possible. However, courts are not requiring the state to present witnesses so the right of cross examination is not being enforced. Although the statute provides that defendant’s have the right to cross-examine witnesses, the Court are presently allowing the prosecutor’s to simply say what they believe the facts are.

The New Jersey appellate division has yet to rule on this issue.

Finally, defendants who are detained and not given a chance to post bail, are supposed to receive a trial in 9 months. However, there are so many exceptions that the right to a speedy trial will not be enforced. A defendant can be held for over 2 years without trial and at some point would just be released and still have to face the charges.


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