Bail Reform: Unfair Advantage for Wealthy Defendants

There may be cases where the prosecutor determines that the risk(s) posed by the defendant upon release can be adequately managed only by some form of monitoring or intervention service that is not provided by the pretrial services program or otherwise is not available to mitigate the risk(s). By way of example, a defendant’s criminal activity that is related to his or her addiction (e.g., robberies or residential burglaries committed to acquire funds to support the defendant’s drug dependency) might be interrupted by participating in a court-ordered treatment program, as shown by the proven success of New Jersey’s Drug Court Program, which provides treatment opportunities and incentives to break the vicious cycle of addiction and crime. See N.J.S.A. 2A: 162-17(b)(2)(i) (pretrial release conditions might include that the defendant “undergo available . . . treatment . . . for drug or alcohol dependency”) (emphasis added to note that the Legislature recognized that pretrial treatment might not be available). See also subsection 6.2.4. As a matter of reasonable statutory interpretation and sound public policy, a defendant should not be deemed to be immune from pretrial detention because unavailable release conditions in theory might have been sufficient to manage the identified risk(s) posed by defendant’s release pending trial.

In such cases, if the prosecutor determines in accordance with the other provisions of Section 7 of this Directive to seek pretrial detention, the prosecutor shall argue at the pretrial detention hearing that, for practical and legal purposes, no condition or combination of conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that defendant will not obstruct or attempt to obstruct the criminal justice process. In other words, the prosecutor shall argue that pretrial detention is authorized under the Bail Reform Law if the risk(s) posed by defendant’s release will remain serious and unabated due to the practical unavailability of a release condition that otherwise might have mitigated  the risk(s).

Nothing in this subsection shall be construed as creating a presumption to seek pretrial detention. Rather, this subsection provides uniform guidance to prosecutors on how to address a defense argument that pretrial detention cannot be ordered as a matter of law if any condition expressly authorized by N.J.S.A. 2A: 162-17(b) would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that defendant will not obstruct or attempt to obstruct the criminal justice process, even when that condition is not actually available. See also Section 13 (provisions to ensure uniform interpretation of the Bail Reform Law by prosecutors).”

Thus, wealthy defendants will retain a distinct advantage, notwithstanding the goals of bail reform. They will be able to fund their own drug treatment and thereby secure release when programs for indigents are unavailable. This is a lose-lose situation for everyone except those in law enforcement seeking detention, as the cost of housing non-violent offenders in jails is far greater than the cost of providing for their drug treatment programs.