Prior to the 2014 constitutional amendment, article 1, paragraph 11 of the New Jersey Constitution provided for the right to bail except for capital offenses when the proof was “evident or presumption great.” The New Jersey Constitution also had, and continues to have, a separate provision, like the Eighth Amendment to the federal Constitution, prohibiting “excessive bail.” (art. 1, par. 12). In November 2014, the voters approved an amendment to article 1, paragraph 11 to permit pretrial preventative detention and to reduce reliance on money bail. When a defendant was ordered to home confinement pending trial, he and a bonding company sought to enjoin the program as a violation of the federal Constitution. In Holland v. Rosen, the Third Circuit affirmed the district court's denial of a preliminary injunction.

Before the constitutional amendment and subsequent legislation (see N.J.S.A. 2A:162-15 et seq; R. 3:25, 3:26), our system of pretrial release was essentially based on the ability to post bail. With exceptions driven by rule changes, the system was “money based.” Although defendants could be required to post property or cash, most were released on bail posted by a bondsman who deposited 10 percent and received its return at the termination of proceedings. Recent reforms place more focus and emphasis on alternatives to money bail. Defendants who pose a risk of flight or non-appearance, a danger to public safety, or obstruction of the prosecution or law enforcement, may now be detained after a hearing. Those held only because they cannot afford to post bail are not. The terms of release are determined after a risk assessment and provide for flexibility including personal recognizance, adhering to non-monetary conditions, attendance to drug treatment or a monitored program, or other conditions which can have a monetary component.

Before this bail reform, defendants in New Jersey had no need to use the federal constitution in an endeavor to secure pretrial release; New Jersey provided greater protection. Defendants who previously would have afforded to be released on bail may now be bound by restrictions prohibiting or limiting their freedom of movement before trial. So the federal constitution became a friend, and bail bondsmen joined the fight against the alternative conditions of pretrial release that were putting them out of business. That is, until July 9, when the Third Circuit held that the Eighth Amendment does not require the posting of cash bail or a surety bond. According to Holland, the Eighth Amendment does not provide a right to make a cash deposit or to obtain a corporate surety bond to secure pretrial release. The conditions on Holland were were not shown to be so “excessive” so as to justify a constitutional challenge. No substantive due process right to post cash or a surety bond is implicated in the absence of a “historical basis” to support that alternative, and statutory safeguards protect procedural due process. The court also held that there was no perceived “less restrictive means” Fourth Amendment violation. The Third Circuit therefore affirmed the denial of a preliminary injunction prohibiting implementation of bail reform in New Jersey.

Thanks to Holland, New Jersey bail reform appears to be with us without interruption. We only hope that the speedy trial component will be successful, so those in jail or otherwise restrained do not languish without trial, and those at liberty do not experience further delays.