“A prosecutor shall not request a court to impose monetary bail pursuant to N.J.S.A. 2A: 162- 17(c) except as may be authorized pursuant to this Section. Consistent with the statutory framework that relegates monetary bail as the last option for pretrial release conditions relating to flight risk, there shall be a presumption against seeking monetary bail that can be overcome only in accordance with the process and criteria set forth in subsection 6.3.3.
In determining whether to overcome the presumption against requesting imposition of monetary bail, a prosecutor shall consider only those facts and circumstances that have a material bearing on the risk that the defendant if released would not appear in court when required. Facts relevant only to the risk that defendant might commit new criminal activity, other than the offense of bail jumping in violation of N.J.S.A. 2C:29-7, or might commit a violent crime or obstruct or attempt to obstruct the criminal process, shall not be considered in deciding whether to overcome the presumption against seeking monetary bail established in this Section.
Note, however, that some case-specific facts, such as a defendant’s affiliation with a gang, may be relevant both to the risk of flight and the risk of violence and/or witness intimidation. See note 10. Prosecutors, therefore, should be analytically precise in specifying the facts and circumstances relied upon to support the determination that defendant poses a flight risk, that this risk cannot be addressed adequately by imposing non-monetary release conditions, but could be managed if the court were to impose a monetary bail condition. See also Section 7.5 (prosecutor seeking pretrial detention must specify which of the distinct risks addressed in the Bail Reform Law would be posed if the defendant were to be released).
A prosecutor may request the imposition of monetary bail only if 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: (1) imposition of monetary bail as a condition of the defendant’s release is authorized by the Bail Reform Law, (2) no non-monetary release condition or combination of conditions would be sufficient to reasonably assure the defendant’s appearance in court when required, (3) the defendant is reasonably believed to have financial assets that will allow him or her to post monetary bail in the amount requested by the prosecutor without having to purchase a bond from a surety company or to obtain a loan, and (4) imposition of monetary bail set at the amount requested would, subject to the provisions of subsection 6.3.4, make it unnecessary for the prosecutor to seek pretrial detention.”
It is anticipated that although the poor may spend less time in jail for non-violent offenses as a result of bail reform, the wealthy will still be able to buy their way out of jail. Since monetary bail can still be imposed “if it would make it unnecessary to seek pretrial detention”, wealthy defendants will be more than willing to propose a monetary bail, especially when the use of bail bondsman is disfavored, thus saving defendants money on fees to the bondsman. The benefit to the prosecutor is that it allows them to both save face when they do not see pretrial release, while allowing them to avoid the work associated with a pretrial detention hearing.
