One of the first decisions made in any criminal case involves setting bail. In New Jersey state courts, the initial bail is frequently set by a municipal court judge. This judge will decide if the defendant will be required to post bail or be released on their own recognizance. If bail is required, the judge will set the required dollar, as well as related terms and conditions. These will include, among other things, whether the defendant will be required to post the entire amount of the bail, be permitted to use a bondsman, or be allowed to post 10% of the face amount of the bail with the Court which will enable the defendant to avoid paying a fee to the bondsman and possibly allow for the recovery of the amount posted when the matter is concluded. In some cases, the judge may determine that the defendant must post the entire bail on their own. Generally speaking, municipal judges tend to set high bails. If the defendant cannot afford the bail as set by the municipal judge, s/he must remain incarcerated until an attorney can file a motion to review the bail and have it heard by a Superior Court judge who will determine if it is appropriate under the circumstances.
For over two years, Jonathan Lippman, New York State’s Chief Judge, has been advocating for changes to New York’s bail statute, which was enacted in 1970. Some of his suggestions, driven by his concern that many people remain incarcerated while their case is pending simply because they cannot afford the bail set in their case and are therefore penalized for being poor, are noteworthy and merit consideration by New Jersey and other jurisdictions.
New York’s situation is probably similar to that in other states. Approximately 50,000 people jailed each year in New York City cannot afford the initial bail set in their case. More than half of these defendants remain incarcerated while their case is pending. Four out of 10 Rikers Island defendants are in jail because they cannot afford their bail.
Having inmates, particularly those charged with low-level offenses, remain in jail is problematic for several reasons. First, it costs money to house someone in jail. Further, the state is responsible for the defendant while they are incarcerated. Additionally, people who remain in jail fall behind on rent and other obligations, get fired, or sacrifice educational opportunities. Finally, keeping defendants charged with relatively minor offenses in jail simply because they cannot afford to pay a bail raises issues of fairness and even-handed treatment by the criminal justice system.
Judge Lippman proposed establishing an automatic review of all bail determinations within 10 days of the initial setting of bail to see if the amount should be reduced. He also suggested having judges periodically review the strength of the case against the defendant, as well as the district attorney’s readiness for trial. Bail may then be lowered or eliminated if the case has weakened. He also proposed using electronic supervision by means of bracelets linked to smartphones as a bail alternative. Finally, the New York statute allows for nine different kinds of bail bonds, including the use of a credit card to post bail in certain instances. New York State judges typically require bail to be paid in cash, or by means of a bail bond. Judge Lippman wants to see judges use some of the other alternatives.
Given the monetary and social costs associated with incarceration, and particularly in cases involving low-level offenders with minimal or no criminal record, Judge Lippman’s suggested reforms make sense for New York and other states and merit serious consideration.