Bail Reform: Bail Source Hearings

by | Jan 18, 2017 | Blog, Criminal Law, Law Reform and Amendments

Fred Sisto Brick LawyerThe Bail Reform Law does not repeal other statutory provisions that authorize, or in some cases require, a court to conduct a monetary bail source or sufficiency inquiry on application of the prosecutor  to determine, inter alia, “defendant’s interest in ensuring that the bail is not forfeited.” See N.J.S.A. 2A: 162-13. Nothing in this Directive shall be construed to limit a prosecutor’s authority to examine the source and bona tides of the assets used to post monetary bail, or to argue that the manner in which a monetary bail condition actually was satisfied fails to provide adequate incentive for the defendant to appear when required.

Prosecutors should consider that if there is reason to believe that the defendant is inclined to abscond from the jurisdiction of a criminal court, the defendant also might be inclined to forfeit a monetary bail bond premium and default on any debt owed to a surety company. A flight-prone defendant prepared to flaunt the authority of the criminal judicial system, in other words, may be just as likely to flaunt a bail bond company’s authority to enforce a civil debt. Thus, if a defendant’s motivation to flee is sufficient to warrant imposition of monetary bail under the new statutory framework, the defendant might not have sufficient interest in ensuring that the surety company’s bond is not forfeited.

Accordingly, if the prosecutor has reason to believe that a defendant has satisfied a monetary bail condition by means of a bond posted by a surety company, or by posting money obtained from another, whether by gift or any form of loan, the prosecutor shall ask the court to conduct a monetary bail source/sufficiency inquiry pursuant to N.J.S.A.2A:162-13,unless the County Prosecutor or First Assistant Prosecutor, or the Director of the Division of Criminal Justice or a Deputy Director in cases prosecuted by the Division, determines that such an inquiry is not needed to determine whether the defendant has an adequate interest in ensuring that monetary bail is not forfeited.”

Presently, bail source hearings tend to be very time-consuming and are only requested in cases like first degree drug distributions, where the defendant is accused of making significant elicit cash profits than s/he is then attempting to use to secure release. This directive would seem to encourage such hearings in any case in which a bondsman is used.