Bail Reform: Release Conditions

“When a complaint-warrant is issued pursuant to this Directive, the defendant shall be transported to the county jail as soon as practicable, considering the need to conduct investigative activities (e.g., interview of defendant, witness identification procedures requiring defendant’s presence or participation) and the availability of transport resources and the operating hours during which the pretrial services program is preparing recommendations as to release conditions in accordance with N.J.S.A. 2A:162-16.

Rule 3:2-1(c) provides that when a complaint-summons is issued “all available investigative reports shall be forwarded by law enforcement to the prosecutor within 48 hours.” And it provides that when a complaint-warrant is issued “all available investigative reports shall be forwarded by law enforcement to the prosecutor immediately upon issuance of the complaint.”

These provisions tie in with the previously mentioned concerns about law enforcement’s new found ability to detain suspects for days while pretrial services determines the appropriate conditions for release and Miranda. The guideline makes it clear that a defendant can delay his or her transfer to the county jail and maintain their status outside of the inmate population by agreeing to be interviewed as opposed to invoking their constitutional right to silence.

Additionally, the directive’s provision for the speedy transfer of all investigative reports to the county prosecutor is conveniently modified by the term “available”, thus providing an incentive for law enforcement to delay in writing their reports because a lack of information provided to the prosecutor and/or pretrial services will lead to a prolonged detention. Moreover, if prosecutors can argue for additional bail conditions “out of an abundance of caution” while they await the required reports, law enforcement’s inaction will provide an additional basis to impose restrictions on a suspect’s liberty that would otherwise be unnecessary. This is yet another example of law enforcement wanting to have their proverbial cake and eat it too by arguing that the pretrial assessment should be followed when it suits their desires, while allowing them to delay the production of the assessment when it will produce an undesired result like releasing a suspect on a summons.