N.J. looks to restrict bail for violent offenders

Posted: June 14, 2012

While Republican Gov. Christie and Democratic legislative leaders tussle over tax cuts and higher education reform in the remaining days before the Legislature breaks for summer, one element of Christie's agenda seems to be sailing through with little controversy: a proposal to amend the state constitution so that judges can deny bail to violent offenders.

Christie, a former federal prosecutor, wants to give New Jersey judges the ability to deny bail to a defendant who poses a danger to the community. Only New Jersey and New York state lack laws that allow judges to use a defendant's "dangerousness" as a factor when determining bail.

Supporters, who include police chiefs and prosecutors, say the change would keep violent offenders off the street before their trial, preventing them from hurting or intimidating victims or witnesses. Police hope the change would encourage more witnesses to testify, a major problem in cities like Philadelphia and Camden.

"If you lock up these [drug] dealers and murderers and people know that they're not getting back out, and witnesses know that they're not getting back out, you can start making a real difference," said State Sen. Donald Norcross, (D., Camden), who represents the crime-plagued city of Camden and is sponsoring the amendment. "This is a real game-changer in law enforcement."

Other lawyers worry that judges will feel pressured to lock up everyone accused of a violent crime, which could lead to wrongful incarceration of defendants later exonerated and cause a spike in county jail populations at a high cost to taxpayers.

"It is much easier for a judge to deny bail, particularly when a recently passed statute encourages him to do so, than it is to take even a very small risk that the defendant will harm a member of the public while awaiting trial," said Barbara Moses, a visiting professor at Seton Hall University of Law. "I worry that, if the constitutional amendment is passed, the next step will be a package of legislation that not only permits judges to deny bail to defendants charged with violent offenses but makes it very difficult for them to do anything else."

A Senate committee will hold a hearing Thursday on the proposed amendment, which has advanced out of Senate and Assembly committees. Both chambers must approve the measure with a three-fifths majority vote to put it on the ballot in November.

If voters approve the change, the Legislature will draft guidelines for judges.

Earlier this year, Christie proposed a two-pronged reform to the criminal justice system: keep more violent offenders locked up and divert more drug-addicted nonviolent offenders into treatment, rather than prison.

A bill to create a pilot program for mandatory drug treatment for nonviolent offenders is making its way through the Legislature, but it could take several years to see whether the program works. The governor anticipated at least a one-year lag in starting the program.

Christie estimates that about 4,000 nonviolent offenders could be removed from prisons and jails and put into the state's drug court treatment if his program is implemented statewide. He said he was confident that that would create more than enough room to lock up violent offenders denied bail under a revised constitution.

Unlike many other states, every person who is arrested in New Jersey is entitled to bail. New Jersey and New York are the only states that do not allow judges to deny bail on the basis of "dangerousness," according to a 2012 Texas Law Review article cowritten by Shima Baradaran, associate professor at Brigham Young University Law School.

Pennsylvania judges automatically deny bail to anyone charged with murder, as required by state law. The most that a New Jersey judge can do is set a high cash bail.

It wasn't a particular case that sparked Christie's desire to change the state's bail system, said Paul Loriquet, a spokesman for the New Jersey Attorney General's Office. But as a former U.S. attorney, Christie worked in a system that allowed judges to keep those deemed dangerous behind bars before trial. He wants state judges to have the same authority.

One out of every six offenders who is released on bail commits another crime before trial, according to a 2007 study by the Bureau of Justice Statistics. Of those who commit an additional offense, more than half are felonies, Loriquet said.

But Moses says those numbers can be misleading. The same study showed that one in five defendants who was detained before trial was acquitted or had the case dismissed.

"Denial of bail tends to be a devastating blow to a criminal defendant," she said. "Not only does it make it exponentially more difficult for him to mount an effective defense at trial; it has enormous collateral consequences (loss of employment, loss of housing, loss of custody over children, just to name a few) that often cannot be undone even if the charges are later dropped or the defendant is acquitted," she said.

If voters approve the change, lawmakers will write the enabling legislation, and a lot depends on how it's written, lawyers said.

"If they are just allowing the judges to consider the risk to the community … then that would mirror other states," Baradaran said. But if the Legislature denies judges the option of releasing a violent offender, "this would go further than many other states in denying judges discretion."

The federal system thoroughly researches a defendant before determining whether to deny bail before trial, and defendants are often released on ankle bracelets or home confinement, which is cheaper, lawyers said.

If New Jersey does not perform similar reviews and similar alternatives to pretrial incarceration, "there is a significant risk that judges would simply ‘err on the side of caution' and deny bail entirely in situations … where restrictions short of a jail cell would adequately protect the public," Moses said.

Bail bond agents oppose the measure because it would cut into their business. But they also say it's unnecessary and will cost taxpayers more than if the court issued more high cash or surety bonds.

"A surety bond is always going to be your best bet," said Beth Chapman, a bail bond agent who costars with her husband in the reality television show Dog the Bounty Hunter. "If the defendant skips court, they still have me on the hook and say, ‘Go get the freakin' guy.' …. Either they return on their own or we're going to give them a little help, because I'm not going to be eating a $10,000 bond."

Contact Joelle Farrell at 856-779-3237 or jfarrell@phillynews.com or on Twitter at @joellefarrell.

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