By Michael Hill
Correspondent
This is bail reform in action in New Jersey, in an Essex County court room.
Under the reform, a judge ultimately decides the charge, which takes some discretion away from police. Two choices: a summons or a warrant. With a summons, a defendant is free to go but must come back for court dates. Warrants are for indictable, more serious crimes and the defendant goes to jail but must have a court hearing within 48 hours. New Jersey’s Chief Justice Stuart Rabner wants the hearings to take place within 24 hours.
Judge Sybil Elias is weighing whether to free or detain a man who appears in the county jail by closed circuit. Notice, there is no mention of money for bail because the new system eliminates that. Instead, it uses information — such as convictions, not arrests, not socio-economic factors — punched into a computer. The trial court administrator will give each defendant a score of 1 to 6 for risk of re-offending and risk of skipping court.
“And it really is a more fair way to determine who should be incarcerated pending a trial,” said Essex Vicinage Trial Court Administrator Amy DePaul.
What if someone has a long sheet of arrests?
“Well you know, our system of justice is that you are innocent until proven guilty. So, we’re not looking at arrests,” DePaul said.
Even if a defendant has a high score, prosecutors must ask for a detention hearing within three to five days and must present clear and convincing evidence to detain someone before a grand jury hearing in 90 days or a speedy trial in 180 days after a grand jury indicts.
“It’s a high standard — clear and convincing evidence. The prosecutor has to show that there is no monitoring or conditions of monitoring or you know mix of them that will be enough to keep this person from re-offending or from skipping out on court,” DePaul said.
If the prosecution fails the clear and convincing test, then the court can release the defendant. New to the system, the court can order electronic monitoring and more. Essex had nine cases Monday under the new system. Seven defendants were released — five of them with different levels of monitoring, two on their own recognizance, two set for clear and convincing hearings on Thursday.
Bill Fitzsimmons is the Essex public defender.
“I don’t think there is anything worse, from the point of view from a criminal defense attorney, than having someone who you suspect might be, you know, more apt to plead guilty simply because they can’t make their bail or they’re being held in custody,” he said.
Under this new system, by law, bail can still be set in some cases, to make sure someone comes back to court for their hearings, but not for re-offending. If someone has a high score for re-offending, he or she is likely to stay detained.