A federal appellate panel on Monday rejected a lawsuit challenging New Jersey’s 18-month-old criminal-justice reform that all but eliminated money bail. It ruled there is no constitutional right for a defendant to demand the court release them from jail or without monitoring if they wish to provide cash bail. The decision further bolstered the system that the state judiciary considers a success.
The decision from the U.S. Third Circuit Court of Appeals concerns a case involving a South Jersey man arrested following a fight outside a Sicklerville tavern last year. Writing for the court, Judge Thomas L. Ambro stated that there is no “federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to nonmonetary conditions of pretrial release.”
It’s the first major federal court decision upholding the state’s change from a system of money bail to one in which most of those accused of serious crimes are released — many subject to varying degrees of monitoring — or held in jail pending trial. Begun January 1, 2017, the change was meant to make the criminal justice system fairer by ensuring that the inability to post a monetary bond did not force a person to remain imprisoned, perhaps for several years, while awaiting trial.
“This important decision confirms what bipartisan lawmakers in New Jersey have known for years: There is no reason — legal or otherwise — why the thickness of anyone’s wallet should dictate their liberty and freedom,” said Alexander Shalom, senior supervising attorney at the American Civil Liberties Union of New Jersey and a proponent of the criminal justice reform who wrote a friend of the court brief in the case.
Denied due process
The case was filed as a class action in June 2017 by Brittan Holland of Sicklerville and Lexington National Insurance Corp., a Maryland-based corporation that underwrites bail bonds. They sought an injunction against New Jersey implementing bail reform and contended both that monetary bail is a right established by the U.S. Constitution and that Holland’s due-process rights had been violated.
Holland was arrested in April 2017 and charged with second-degree aggravated assault as a result of the bar fight. Court documents allege that he caused serious bodily harm to a man he struck repeatedly in the face and head outside the bar. The Camden County Prosecutor’s Office argued that the seriousness of Holland’s actions and his prior conviction for simple assault were grounds for detaining him without bail pending trial. They relied on recommendations from an algorithm that is part of the reform that calculates whether the defendant poses a danger to others and the likelihood of his appearing for trial. Through his public defender, Holland negotiated for release with a high level of monitoring — home detention except for work and an ankle bracelet.
In initially deciding the case, U.S. District Court Judge Jerome B. Simandle had ruled — and the appellate court agreed on Monday — that Lexington does not have standing to bring the case and that Holland’s due-process rights had not been violated, nor did he have a strong likelihood to win on constitutional grounds.
Federal decision defends NJ bail reform
The Third Circuit’s 52-page decision agreed with Simandle and defends the state’s reform system, providing a history lesson on constitutional protections related to crimes and on bail. It found no constitutional requirement for monetary bail, which it called “a product of economic opportunity” and cited instances in which the use of money to secure a person’s release has been criticized as “discriminatory, arbitrary and ill-suited to ensuring a defendant’s appearance in court.” It also agreed with one of the state’s primary reasons for eliminating the requirement for bail, stating, “Monetary bail often deprived presumptively innocent defendants of their pretrial liberty, a result that surely cannot be fundamental to preserving ordered liberty.”
Additionally, Ambro wrote that New Jersey’s criminal justice reform includes “extensive safeguards” to ensure that a defendant’s due-process rights are not infringed on.
The court further rejected Holland’s contention that subjecting him to electronic monitoring violates his Fourth Amendment right to be free from unreasonable search and seizure and that it is an invasion of his privacy. Ambro wrote that the judges “do not accept as given that placing an electronic monitor on an individual and then tracking his whereabouts always constitute a search and seizure, and that home detention is a seizure.” While agreeing that an ankle bracelet is intrusive, Ambro wrote that once a person is charged with a dangerous offense, he should expect he will have less privacy from police scrutiny.
New Jersey voters overwhelmingly approved in 2014 an amendment to the state constitution ending the right to bail for all accused. The new system has led to a 24 percent drop in the state’s pretrial jail population between its inception and April 20, 2018, according to the latest data from the state judiciary.
Verdict on reform still out
In an evaluation of the first year of the program, the Administrative Office of the Courts issued a report that called the reform successful. Advocates are generally pleased, though they are awaiting further data from the courts that will be crucial to determining the full success of the program: the rate at which those released wind up showing up for their trials and confinement rates for those of different races and ethnicities.
There also remain significant differences in detention rates among the counties. In the first quarter of this year, for instance, those ranged from a low of 8.1 percent of defendants held pending trial in Hudson County to 39 percent held in Atlantic County. On average, 18 percent of those accused of indictable offenses were detained while awaiting trial.
Lawyers for Holland and Lexington did not return requests for comment and neither the state attorney general’s office nor the judiciary declined to comment on the ruling.
It is not likely to be the last word on the reform, though. At least one other high-profile case is pending at the federal level.
The mother of a man allegedly killed last year by a repeat offender who had been released to await his trial sued the state last August seeking damages for her son’s death and an end to criminal justice reform. June Rodgers contends that the end of the bail system resulted in her son’s death, because the man who allegedly shot her son 22 times had been released without bail four days earlier after his arrest for gun possession.
Another company with an interest in the bail system, Nexus Services, is bankrolling Rodger’s suit, which was announced at a press conference in Trenton attended by Duane Chapman, who once starred in the Dog the Bounty Hunter television series, and his wife Beth Chapman, president of the National Bail Bonds Association.
The bail bonds industry has been the biggest opponent of criminal justice reform, complaining that the change has financially harmed bail bondsmen across the state and removed a check on offenders — that of the bail agent keeping tabs on the person they have bonded out.
But advocates of the change, including state Supreme Court Chief Justice Stuart Rabner, said the old system was unfair because a person’s wealth, rather than how dangerous they might be, determined whether they were released or held in custody until trial. One study had found that 12 percent of those held in county jails were there because they couldn’t post bond of $2,500 or less — and more than two-thirds of those were members of minority groups.