In general, the legitimate concern of the court with regard to setting bail is to ensure that the defendant will appear in court when required. State v. Johnson, 61 N.J. 361 (1972). More specifically, bail pending appeal shall be granted “if it appears that the case involves a substantial question which should be determined by the appellate court and that the safety of any person or of the community will not be seriously threatened if the defendant remains at large.” R.2:9-4.
The same considerations applicable to pre-conviction bail motions are also applicable to motions for bail pending appeal. The applicable case law is as follows.
Our courts embrace a long-standing policy against unnecessary sureties. R. 3:26-l(a). Excessive bail shall not be required. N.J. Const. Art. I, ¶ 12. A number of factors must be considered in fixing a bail figure. State v. Johnson, 61 N.J. 351, 364 (1972).
First to be considered is the seriousness of the crime charged and the apparent likelihood of conviction. Id. Second, courts are to consider the defendant’s criminal record and previous record on bail. Id. at 364-65. Third, courts are to consider the defendant’s reputation and mental condition. Id. at 365. The fourth and fifth considerations are his length of residence in the community and his family ties. The sixth factor to consider is his record of employment. Seventh, courts are to consider the identity of responsible members of the community who would vouch for the defendant’s reliability. The eighth consideration is any other factor indicative of the defendant’s mode of life, ties to the community, or bearing on the risk of failure to appear.
Although those elements should be considered, trial courts should not lose constitutional perspective. The amount of bail should not be excessive — even though the controlling test is not the defendant’s financial capacity. His indigence also requires consideration. An excessive bail requirement should not be utilized as a means of confining the accused until trial. Id. In reaching the amount of bail, the constitutional right to bail and the presumption of innocence cannot be overlooked.
Our Supreme Court recognizes:
“[the] strong indication revealed by studies that an accused who has been detained in jail between his arraignment and the final adjudication of his case is more likely to receive a criminal conviction or jail sentence than an accused who has been free on bail. The correlation between the pre-trial status (jail or bail)and the severity of the sentence after conviction has been described as ‘extraordinary,’ the jailed defendant being two or three times more likely to receive a prison sentence.” Johnson, at 361 n.6.
