How pre- trial release (a.k.a. bail) is determined in New Jersey?  If a person is facing a long prison sentence, what factors will a New Jersey Judge use to determine release or detention 

New Jersey Pre-Trial Procedure

Unlike Pennsylvania and most States, New Jersey maintains a cashless bail system.  While other States set a specific cash or bond amount which a person must post to obtain release pending the final outcome at trial or a plea the Garden State’s bail system is no longer based on money but on risk factors to determine if a person should be held in custody prior to trial.

If a prosecutor in New Jersey is seeking pre-trial detention, he or she must file a motion before a court orders the accused person’s release based on New Jersey’s new bail reform guidelines pursuant to 2A: 162-17.  If you are following the very tragic story of John and Matthew Gaudreau in Salem County, this is an example of case where the State has filed a motion to detain the defendant.   

If this motion isn’t filed, a court, no later than 48 hours after a person is taken into custody, should release the accused individual on their personal recognizance or on the execution of an unsecured appearance bond, after considering the pre-trial services risk assessment and any other information available to the court.

The New Jersey Pre-Trial Detention Proceeding – 2 Part Analysis

When the prosecutor files such a motion as in the Gaudreau case, there is a rebuttable presumption that no amount of monetary bail, non-monetary conditions, or a combination will ensure that this person appears for trial, or that this person presents a danger to the community.

It is important to keep in mind that once a motion is filed for detention, there is a two prong analysis which the court must go through in order to determine if detention is appropriate. First, the court must determine if probable cause exists to find that the eligible defendant committed a predicate offense under 2A: 162-19 which would include crimes of violence, illegal drugs, and firearms offenses (Graves Act).  There appears to be no issue with regards to probable cause in the Gaudreau cases.

If Probable cause is establish the second part of the analysis is whether the prosecution can establish by clear and convincing evidence that a defendant should be detained. The prosecution must show following and the Court is permitted to assign different weight to each factor.  Here are the factors:

• The defendant’s release would pose a risk to the community 
• The defendant is a flight risk (no contacts within the state or out of state contacts)
• No amount of bail or other conditions would ensure the defendant’s appearance in court 
• The defendant would obstruct the criminal justice process 

There is presumption that the defendant is entitled to release but the prosecution can overcome the presumption that no amount of monetary bail or conditions to ensure that the Defendant doesn’t appear for trial or is a danger to the community

Defense Attorneys and Public Safety Assessment (PSA)

A defendant is entitled to counsel at these hearings.  In addition to defense argument that the prosecution has not overcome the presumption, the Defendant is entitled to Public Safety Assessment (PSA).  While this PSA can help the defense, it can also aid the prosecution if it determines that the defendant is a high risk for fleeing or a danger to the community.  The PSA score will be based on prior criminal history, contacts to the community (employment, residence) and the nature current offense. 

Even if the PSA recommends releasing the Defendant, the Judge doesn’t have to follow it.  Even if a person has no prior criminal history and has led an otherwise law abiding life, a judge can still find that detention is appropriate and necessary.  Ultimately, the decision to detain or release falls on the judge.  If the judge does find in favor of the State, the Defense is permitted to file an appeal within 7 days.