“Monetary bail remains an available option under the Bail Reform Law, but only as a last resort when the court finds that release on non-monetary conditions will not reasonably assure the defendant’s appearance in court when required. N.J .S.A. 2A:162-17(c). The law makes clear that monetary bail must not be imposed for the purpose of preventing the defendant’s release. Ibid. Furthermore, the statute provides that monetary bail can be used only to discourage flight; it may not be used to assure the safety of any other person or the community or to assure that the defendant will not obstruct or attempt to obstruct the criminal justice process. Ibid. Thus, if a prosecutor determines in accordance with this Directive that non-monetary conditions will not reasonably assure the protection of the safety of any other person or the community and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, a prosecutor shall not seek imposition of monetary bail, but rather shall seek pretrial detention in accordance with Section 7 of this Directive.
The Bail Reform Law is intended to end New Jersey’s historical reliance upon monetary bail, replacing the current resource-based pretrial release system with a risk-based system. See Section 1.2. There may, however, be cases where monetary bail is authorized and appropriate. In some limited situations, it may be possible to discourage flight by setting monetary bail at an amount that the defendant can afford to post but could not afford to forfeit. To ensure that monetary bail is used only to incentivize a defendant to appear in court and is not sought for the purpose of preventing a defendant’s release, a prosecutor shall not seek imposition of monetary bail without having information to indicate that the defendant has assets that could be used to post the requested amount of monetary bail. A prosecutor shall not seek imposition of monetary bail in an amount that the defendant cannot afford to satisfy.”
There is nothing new about the requirement that monetary bail cannot be used to prevent a defendant’s release. This has been the law in NJ for decades and has routinely been ignored by judges and prosecutors. It will be interesting to see how often pretrial detention hearing are requested and how lengthy and complicated the hearings become. It would seem that routinely conducting testimonial pretrial detention hearings will be a drain on the justice system’s resources which is once again antithetical to the principle purposes of the Bail Reform Law. Similarly, it will be interesting to see the extent to which pretrial release conditions are challenged and the nature of such hearings, i.e. will they typically be decided with or without testimony. It is expected that prosecutors will fall back on the default position that these are Directives and not binding law in the evet monetary bail is set in an amount that a defendant can not afford.
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