S847

An Act concerning bail and conditions of pretrial release and supplementing Titles 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. The court may order the detention of a defendant charged with a crime of the first degree before trial if, after a hearing pursuant to the provisions of subsection b. of this section, the court is clearly convinced that no amount of sureties, non-monetary conditions of pretrial release or combination of sureties and conditions would assure the defendant’s appearance as required, protect the safety of any person or of the community, or prevent the defendant from obstructing or attempting to obstruct the criminal justice process.

b. Upon motion of the prosecutor, the court shall hold a hearing to determine whether to order the detention of a defendant before trial charged with a crime of the first degree pursuant to subsection a. of this section. The hearing shall be held immediately upon the defendant’s first appearance before the court unless the court orders a continuance. Unless expanded by the court for good cause, a continuance may not exceed five days, not including any intermediate Saturday, Sunday, or legal holiday. The defendant shall be detained during a continuance.

The defendant shall be afforded the right to be accompanied and represented by counsel, an opportunity to testify, to present witnesses, and to cross-examine witnesses who appear at the hearing. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. The facts the court uses to support a finding pursuant to subsection a. of this section that no amount of sureties, non-monetary conditions of pretrial release or combination of sureties and conditions would assure the defendant’s appearance as required, protect the safety of any person or of the community, or prevent the defendant from obstructing or attempting to obstruct the criminal justice process, shall be supported by clear and convincing evidence.

c. The court shall, in determining whether no amount of sureties, non-monetary conditions of pretrial release or combination of sureties and conditions would assure the defendant’s appearance as required, protect the safety of any person or of the community, or prevent the defendant from obstructing or attempting to obstruct the criminal justice process, take into account the available information concerning:

(1) the nature and circumstances of the offense charged;

(2) the weight of the evidence against the defendant;

(3) the history and characteristics of the defendant, including:

(a) the defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;

(b) whether, at the time of the current offense or arrest, the defendant was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence;

(c) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release; and

(d) the nature and the seriousness of the risk that the defendant will obstruct or attempt to obstruct justice, or threaten, injure or intimidate, a prospective witness.

d. In a detention order issued under subsection a. of this section, the court shall:

(1) include written findings of fact and a written statement of the reasons for the detention; and

(2) direct that the defendant be afforded reasonable opportunity for private consultation with counsel.

The court may, by subsequent order, permit the temporary release of the defendant, in the custody of a law enforcement officer or another appropriate person, to the extent that the court determines such release to be necessary for preparation of the defendant’s defense or for another compelling reason.

e. A defendant shall have the right to appeal an order of detention before trial to the Appellate Division of the Superior Court, which may make a determination as to whether an amount of sureties, non-monetary conditions of pretrial release or combination of sureties and conditions would assure the defendant’s appearance as required, protect the safety of any person or of the community, or prevent the defendant from obstructing or attempting to obstruct the criminal justice process. An appeal filed under this subsection shall be heard and decided no later than 30 days following the initial order of detention.

f. Nothing in this section shall be construed as modifying or limiting the presumption of innocence.

2. a. For the purposes of this section, a non-violent offense means an offense that is not enumerated as a crime with bail restrictions as defined in subsection a. of section 1 of P.L.1994, c.144 (C.2A:162-12).

b. If a court determines that releasing a person charged with a non-violent offense as defined in subsection a. of this section will not reasonably assure the appearance of the person as required for trial, the court may order the pretrial release of that person subject to the least restrictive conditions, or combination of conditions as an alternative to: pretrial detention, release on recognizance, or release on full cash, surety bond or a bail bond.

The court may order the following least restrictive conditions, or combination of conditions, which may include that the person:

(1) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the court that the person will appear for trial as required;

(2) maintain employment, or, if unemployed, actively seek employment;

(3) maintain or commence an educational program;
(4) abide by specified restrictions on personal associations, place of abode, or travel;

(5) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

(6) report on a regular basis to a designated law enforcement agency, or other agency as determined by the court;

(7) comply with a specified curfew;

(8) refrain from possessing a firearm, destructive device, or other dangerous weapon;

(9) refrain from the excessive use of alcohol, or the use of any controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 without a prescription provided by a licensed medical practitioner;

(10) undergo an available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;

(11) return to custody of a law enforcement agency or other entity as determined by the court for specified hours following release for employment, schooling, or other limited purposes; and

(12) satisfy any other condition that the court determines is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.

c. The court may revoke at any time a person’s eligibility for pretrial release subject to a condition or combination of conditions under subsection b. of this section as an alternative to bail. If any defendant violates the terms of release under the pretrial release conditions or provides false or misleading information to the court regarding his eligibility or compliance with the conditions, the person’s eligibility for pretrial release as an alternative to bail shall be terminated immediately. Upon arrest for any such violation, the person shall be returned to custody and shall appear before a court for a bail hearing within 12 hours following the arrest.

3. The Supreme Court may adopt Rules of Court and the Administrative Director of the Courts may issue directives to effectuate the purposes of this act.

4. This act shall take effect immediately but section 1 shall remain inoperative until the enactment of an amendment to Article I, paragraph 11 of the New Jersey Constitution authorizing the courts to deny pretrial release to defendants charged with certain first degree crimes. The Supreme Court of New Jersey may take such anticipatory action as may be necessary to effectuate the provisions of this act.

STATEMENT

This bill implements an amendment to the New Jersey State Constitution which modifies the constitutional right to bail and authorizes courts to deny pretrial release of certain violent offenders. The bill would remain inoperative until the enactment of an amendment to Article I, paragraph 11 of the New Jersey State Constitution authorizing the courts to deny pretrial release to certain defendants charged with first degree crimes.

Under the bill, a court may order the detention of a defendant before trial, if that defendant is charged a crime of the first degree. Specifically, a court may order pretrial detention if the court determines that no amount of bail, non-monetary conditions of pretrial release or combination of bail and conditions would assure that a defendant charged with a crime of the first degree would appear for trial. A court may also deny pretrial release in order to protect the safety of any person or the community, or to prevent the defendant from obstructing or attempting to obstruct the criminal justice process.

The criteria and procedure to be followed by a court in denying pretrial release are outlined under the provisions of the bill. Upon motion of the prosecutor, the court is to hold a hearing to determine whether to order the detention of the defendant.

The bill requires that the bail hearing is to be held immediately upon the defendant’s first appearance before the court unless the court orders a continuance. Unless expanded by the court for good cause, a continuance may not exceed five days. During the hearing, a defendant is afforded an opportunity to testify, to present witnesses, and to cross-examine witnesses who appear at the hearing. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts used by a court to support a finding to deny pretrial release are to be supported by clear and convincing evidence.

In determining whether to deny pretrial release, the bill requires a court to take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, and certain criteria regarding the history and characteristics of the defendant which are enumerated under the bill.

The bill requires that a detention order issued by the court include findings of fact and a written statement of the reasons for the detention. The order must also direct that the defendant be afforded reasonable opportunity for private consultation with counsel. The court may, by subsequent order, permit the temporary release of the defendant, in the custody of a law enforcement officer or another appropriate person, to the extent that the court determines that pretrial release is necessary for preparation of the defendant’s defense or for another compelling reason.

The bill affords a defendant the right to appeal an order of detention before trial to the Appellate Division of the Superior Court. An appeal filed by the defendant is required to be heard and decided no later than 30 days following the initial order of detention.

In addition, this bill provides a court with alternatives to setting bail for defendants charged with non-violent offenses to ensure the defendant appears for trial. The bill allows a court to release a defendant who fulfills pretrial conditions as an alternative to bail. The court may order one or a combination of conditions requiring that a defendant:

(2) maintain employment, or, if unemployed, actively seek employment;

(3) maintain or commence an educational program;
(4) abide by specified restrictions on personal associations, place of abode, or travel;

(5) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

(6) report on a regular basis to a designated law enforcement agency, or other agency as determined by the court;

(7) comply with a specified curfew;

(8) refrain from possessing a firearm, destructive device, or other dangerous weapon;

(9) refrain from the excessive use of alcohol, or the use of any controlled dangerous substance or controlled substance analog without a prescription provided by a licensed medical practitioner;

(10) undergo an available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;

(11) return to custody of a law enforcement agency or other entity as determined by the court for specified hours following release for employment, schooling, or other limited purposes; and

(12) satisfy any other condition that the court determines is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.

The bill provides that a court may revoke at any time a defendant’s eligibility for pretrial release subject to conditions as an alternative to bail. If any defendant violates the terms of release under the pretrial release conditions or provides false or misleading information to the court regarding the person’s eligibility or compliance with the conditions, the person’s eligibility for pretrial release as an alternative to bail is terminated immediately. Upon arrest, the bill requires that the defendant be returned to custody and appear before a court for a bail hearing within 12 hours following the arrest.