Six weeks in, N.J. bail overhaul faces legal questions and a funding challenge

New Jersey scrapped cash bail at the beginning of the year and switched to a risk-based model to determine whether a criminal defendant should be confined to jail before trial.

The major change to the state’s criminal justice system faced some of its first challenges this week, as officials work out the legal and financial kinks.

Unfunded mandate?

The state Association of Counties has called the new system an unconstitutional unfunded state mandate that forces county governments to spend more than $35 million on personnel and courthouse improvements.

The Council on Local Mandates will hear oral arguments Wednesday on a motion by the state to dismiss the association’s challenge.

In December, the council denied the association’s request for a preliminary injunction to stop the law from taking effect.

“I still am optimistic that we’ll be successful on the merits, in that those costs were not initially contemplated by the Legislature as the legislation was making its way onto the governor’s desk and before the voters back in 2014,” said John Donnadio, the association’s executive director.

The group understands that nullifying the bail reform law would create a crisis, Donnadio said, so counties are trying to convince the state to pay for implementing it.

The group is also suggesting other changes to ease the financial burden on counties, such as an increase in court fees, a hiring freeze on prosecutors, and video conferencing on holidays and weekends (which some New Jersey districts already do).

Detention hearings

Bail hearings were eliminated along with cash bail, but now criminal defendants must appear at pretrial detention hearings, where a judge determines if the defendant will be detained or released before trial.

Two cases currently under consideration in the state appeals court question whether prosecutors should have to produce witnesses — such as the arresting officer — to testify at these detention hearings.

No witnesses were required at bail hearings in the past, and they are not currently required at detention hearings, but criminal defense advocates said it would add fairness to the process.

“If the officer’s on the witness stand, he could be asked some basic questions to flesh out the exact details of what he claims he saw. And if he did that and, and it was sufficient, it would make it easier for the judge to say it’s probable cause,” said state public defender Joe Krakora.

Proponents also claimed the stakes are higher for defendants under the new pretrial system. Previously many defendants could post bail for their release, but now many people accused of crimes will be detained until trial with no option of getting out.

County prosecutors and the state attorney general’s office countered that forcing witnesses to testify would turn these detention hearings into “mini trials” and slow down the judicial process.

In a separate case last week, a New Jersey judge ruled that defendants were entitled to see evidence prosecutors use to argue that those defendants should be detained before trial.