A Change in the Guidelines of ArrestCriminal Defense

As of January 1, 2017 a new set of protocols will be put in place in the Courts of the State of New Jersey regarding Criminal Defense cases. When the police make an arrest, the new guidelines require the police to follow certain legal guidelines during and after the arrest process. This process of arrest is finalized when the arrested person is no longer free to leave the police station. The Police will now consult with a County Prosecutor and make a decision as to whether an individual will be release on their own recognizance, have some form of restriction upon release or the State will attempt to hold the individual in custody.

The Old Way of Getting of Getting Locked Up

This replaces the old bail system where a large portion of those arrested were required to post bail to secure their release. In the current system a bail was either set at arrest or in the next several days by a municipal court judge. This system merely relied upon a criminal defendant’s prior record, ties to the community and flight risk (whether this person might grab the next flight out of the country). There was a bail set in almost every case. In a considerable number of cases the bail was an amount that neither the Defendant nor his or her loved ones could afford, thus the person remained in jail.

During this process, the only question was if the bail would include a 10% option where the defendant’s family or friends could get their money back at the end of the case as long as the defendant appeared. Without that 10% option, the only way to secure the Defendant’s release was through a bail bondsman. While the bondsman could secure the Defendant’s release, the people signing and paying for the Defendant were responsible to the bail bondsman for a considerable amount of money regardless of the outcome of the case.   The worst situation was where the Judge set a cash only bail which more times than not resulted in a person remaining in custody.

The New Approach

The incoming criminal defense reform is looking to change this old system of bail. The new system is an attempt to find the least restrictive way to secure a defendant’s release and subsequent appearance in Court. The statute must be liberally construed to effectuate its main purpose of relying on non-monetary pretrial release to reasonably assure (1) the defendant’s appearance in court when required, (2) the protection of the safety of any other person or the community, and (3) that the defendant will not obstruct or attempt to obstruct the criminal justice process (the “Three Goals”).

Should the prosecutor make a request for the defendant to be held, than the court would require a hearing to hold that defendant.  This hearing is an opportunity for the Defendant to hear the evidence he would be facing at a trial. Even if a person were not released right away, the bail system will become the last resort in the new system.

After someone is arrested, the first step is the defendant must be temporarily detained to allow the Pretrial Services Program (PSP) to prepare a risk assessment with recommendations on release conditions and for the court to issue a pretrial release decision. An unfortunate consequence of this assessment is that every person arrested on a warrant complaint must be processed through their County Jail.

If the prosecutor does not make a motion for a pretrial detention, then the court must make a pretrial release decision within 48 hours after the defendant has been jailed. During this time, the court must consider the PSP’s risk assessment before making any release decision. Obviously the assistance of a knowledgeable criminal defense attorney for this process is very important. A successful meeting with Pretrial Services is the difference between release and facing the prospect of a detention review hearing with a Superior Court Judge.

After reviewing the situation, the PSP’s risk assessment and any information that may be provided by a prosecutor or the defendant’s attorney, the court must order that the defendant be released.

Should the Judge order the Defendant’s release there are several options; on recognizance (ROR) or on execution of an unsecured appearance bond (basically assuring the Court that the Defendant will appear), released on the least restrictive non-monetary condition(s) that the court determines will reasonably assure that the Three Goals are met; released on monetary bail (only to reasonably assure the defendant’s appearance in court), or a combination of monetary bail and non-monetary condition(s) (to reasonably assure that the Three Goals are met).

If these are not met, than the defendant will be detained in jail, upon motion of the prosecutor, until a pretrial detention hearing can be made.   The court must make a pretrial release decision “without unnecessary delay” or within 48 hours after the defendant has been jailed. Finally, whether in custody or on release, all Defendants will have a pre-indictment or Early Disposition court date approximately 30 days after arrest. Retaining an attorney has always been an integral part of the process of pretrial release. With the new criminal reform, retaining an attorney upon arrest has become even more important.

If you, or someone close to you, is arrested and booked, then it is a good time to retain an attorney. A lawyer can help negotiate the terms of your release and help you understand the charges against you. This is especially important with this new process of Pre-Trial Release, which can be a slippery slope, if unadvised. Get started today with a  legal evaluation of your case as soon as possible.