“The decision whether to charge by complaint-warrant rather than complaint-summons has other legally-significant consequences besides the initial incarceration of the defendant pending completion of the recommendation process conducted by the pretrial services program. A prosecutor cannot file a motion to have the defendant preventively detained pending trial unless the defendant has been charged by complaint-warrant. So too, if the defendant is charged by complaint-summons rather than complaint-warrant and thereafter commits a new crime while on pretrial release, the prosecutor cannot move pursuant to N.J.S.A. 2A:162-24 to revoke release and hold defendant preventively on that initial charge. Cf. note 30.”
“Note 30 reads “Until now, prosecutors have been precluded from seeking initial preventive detention under Article I, paragraph 11 of the New Jersey Constitution, which was interpreted to establish a “right to bail” in non-capital cases. However, courts in this State always had the authority to revoke a defendant’s release status if the defendant had been released on bail or non-monetary conditions and violated those conditions, thus forfeiting the state constitutional right to pretrial l release by his or her wrongdoing. See Steele, supra, 430 N.J. Super. at 41 (recognizing that violation of a non-monetary condition of bail designed to protect the community may trigger revocation, referring to the court’s “inherent power to confine the defendant”). The Bail Reform Law, moreover , expressly recognizes in this regard that “nothing [in the Act] would be construed to affect the court’s existing authority to revoke pretrial release prior to the effective date of those sections [that depend on the effective date of the amendment to Article I, paragraph 11 to authorize the denial of pretrial release].”
The above-referenced restrictions on the prosecution will almost certainly mean that police, pretrial services, and all parties involved with the initial decision to release on a summons or charge on a complaint-warrant, will be motivated to err on the side of the complaint-warrant in order to keep the prosecutor’s options open early on when the details of the case are unclear. The ironic end result could be that the Bail Reform Law designed to keep relatively minor offenders without money from being detained for months in the county jail will end up causing relatively petty offenders who otherwise could post bail to routinely be detained for several days and prohibited from posting the bail that they presently could.