Across the street from the courthouses on South Broad Street and North Clinton
Avenue are businesses whose services no one wants to have to use, but that are
an integral part of the state’s criminal justice system.
Bail bond agents are in the business of helping people who face criminal
charges stay out of jail during the months or even years that can pass before
their cases are decided — a period during which the justice system presumes
they are innocent until proven guilty.
New Jersey’s constitution guarantees everyone the right to bail, except
defendants in death penalty cases. But in an effort to prevent arrestees from
committing more crimes while they await trial, Gov. Chris Christie, a former
federal prosecutor, has proposed amending the constitution to allow state
judges to impose preventive detention without bail for repeat violent
offenders, a power judges in federal cases already have.
The change “aims to provide our courts with the ability to keep dangerous
offenders in jail and off community streets rather than give them an
opportunity to commit further acts of violence, intimidate witnesses until the
time of their trial,” Christie said last week during a news conference attended
by state Attorney General Jeffrey Chiesa, Mercer County Prosecutor Joe Bocchini
and five other county prosecutors.
The proposal immediately drew protests from the bail industry, which stands to
lose business, and from defense attorneys who argue the change would create
millions in new costs for the state, strip citizens of their rights and further
degrade a court system that already struggles to efficiently process cases.
“If you want to make Guantanamo Bay the state of the law in New Jersey, follow
the governor’s lead,” said Jack Furlong, a Ewing defense attorney who
represents bail bond firms. “Otherwise, look for some more reasonable response
to the problem.”
EMULATING THE SYSTEM
In arguing for his proposal, Christie cited a 2007 study by the Bureau of
Justice Statistics that found that about 1 in 6 defendants released while
awaiting trial was arrested for new offenses, and of that number, more than 1/2
were arrested on felony charges.
“Revising our bail procedures and allowing judges to consider certain factors,
such as the dangerousness of the offender to the community before being
released back into society, is just a simple common sense reform that is long
overdue in this state,” Christie said.
One objection is the potential cost of deciding which arrestees are too
dangerous to release. The federal system uses pretrial services officers, or
PSOs, who research defendants’ backgrounds and advise judges, and in some cases
monitor defendants who have been released with ankle bracelets or other
Furlong argued that matching the manpower requirements of the federal model
would require a massive reorganization of the courts at enormous cost to the
“The federal model has a caseload of 15 to 1, so there is one PSO for every 15
persons out on pretrial release,” said Furlong, who represents ABC Bail Bonds,
which operates storefront bail bond businesses on South Broad Street and North
Clinton Avenue. “If you introduce that into the state system, you would be
creating an entire new bureaucracy.”
Christie did not give details on how prisoners would be evaluated for continued
detention. He said he did not expect the state to make much use of the kind of
supervision provided by federal pretrial services officers.
“Right now we don’t use bracelets and house arrests. That’s what pretrial
services spends most of its time doing,” he said during the news conference.
“That’s what we’ll have to consider in the enabling legislation going forward.
But, what I envision is that we’re just going to have a lot more people
Furlong also argued that, since New Jersey courts see many more defendants than
the federal courts do, the state would have to triple its number of beds for
pretrial detainees. Christie said he hoped to avoid crowding or higher costs
through his companion proposal to release nonviolent drug offenders into rehab
“If we’re successful at putting that program forward, that’ll clear a lot of
space out for violent offenders to be held,” the governor said.
As he stood with the governor during the news conference, Bocchini threw his
support behind Christie’s argument.
“The violent offenders, those numbers I don’t think are going to be as high as
the numbers who will be able to be removed from the prisons and correctional
facilities for drug rehab,” Bocchini said. “At the same time, the numbers of
violent offenders will go up in light of a judge being able to remand them
until the time of trial.”
A CONSTITUTIONAL ISSUE
The U.S. Supreme Court has ruled that the Constitution’s ban on “excessive
bail” does not grant federal defendants an absolute right to bail. But New
Jersey’s constitution is less equivocal, stating that “all persons” are
bailable except in death penalty cases.
Furlong said current court rules on imposing bail on violent suspects and
repeat offenders already function properly by imposing high bails that must be
paid in cash.
“I have, currently, 3 clients sitting in jail charged with non-capital offenses
and their bails are set in excess of $1 million. I can’t get them out if it was
lowered to $900,000,” he said. “These guys are not walking around with large
sums of money in their pocket.”
The current system is already so effective at holding people by setting high,
cash-restricted bail amounts that, in some cases, defendants have done more
jail time awaiting trial than they would likely be sentenced to after trial,
according to Barbara Moses, visiting clinical professor at Seton Hall
University School of Law.
The same 2007 study Christie cited Tuesday found that one in five detained
defendants had his or her case dismissed or was acquitted.
And the study found that the suspect groups judges would target under the new
laws are not necessarily the most likely to offend again. Drug-trafficking
defendants had higher predicted rates of misconduct than more violent suspects
charged with murder or rape.
“Denial of bail tends to be a devastating blow to any criminal defendant,”
Moses said. “Not only does it make it exponentially more difficult for him to
mount an effective defense at trial; it has enormous collateral consequences —
loss of employment, loss of custody over minor children, etc. — that often
cannot be undone even if the charges are later dropped or the defendant is
QUESTIONING THE INTENT
Christie has framed the reforms as designed to promote public safety, but
Furlong argued that fully funding state courts to allow quicker trials and
properly funding recession-wracked police departments would have a more
profound effect on public safety than the proposed reforms.
Critics say the state should focus on speeding up the judicial process, rather
than finding new ways to keep people in jail. Christie said that, separate to
the reforms, the state is always trying to improve turnaround times of cases.
“It’s something that prosecutors and people in criminal justice are working on
all the time, so I don’t see us at this point having speedy trial issues across
the state. I haven’t heard complaints about that,” he said. “But that’s
something we always have to keep an eye on, not only because of requirements we
have here inside the state, but federal constitutional provisions that
guarantee a speedy trial as well.”
Moses said other states that have adopted reforms similar to those floated by
Christie have encountered unintended consequences for the fair administration
“In states that permit pretrial detention without bail — or that allow judges
to set bail so high that impoverished defendants cannot possibly post it —
defendants are often presented with plea bargains which require them to plead
guilty to charges that they believe are unwarranted in return for relatively
short sentences, perhaps equivalent to the time they have already served while
awaiting trial,” she said.
“Many defendants take those plea bargains in order to get out of jail,
notwithstanding the sometimes draconian long-term consequences of having that
criminal conviction on their record,” Moses said.
Even Bocchini, who supports the reforms, said there is no evidence that
pretrial detentions would prevent crime.
“I don’t think this has been put out there as a deterrent to crime, because, if
someone is going to commit a crime, they worry about getting arrested,”
Bocchini said. “But once they are arrested, the deed is already done.”
(source: The Times of Trenton)