Council on Local Mandates Faces Stiff Test on Bail Reform Query

Back in 1995, New Jersey voters added a new paragraph 5 to article VIII, section 2, of the New Jersey Constitution, prohibiting “unfunded” local mandates. As we pointed out then (“Unfunded Local Mandates,” December 3, 2001), this amendment created the Council on Local Mandates (http://www.state.nj.us/localmandates/). The council is unique in that its decisions are not judicially reviewable, and it may void statutes and administrative regulations imposing unfunded mandates on local government.

Fast forward to 2014, when the voters also amended our state constitution to provide for substantial criminal justice and bail reform. This amendment removed the constitutional requirement of bail in article I, paragraph 11, (not present in the federal constitution) and substituted the following language: “All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.” This amendment has been implemented by a number of specific requirements with which local law enforcement officials must comply. Consequently, after lengthy negotiations, the New Jersey Association of Counties, representing at least nine counties, has filed a complaint with the council. Many of the new criminal justice reform requirements are said to be unfunded mandates. If the council were to so rule, it would undo the entire statutory criminal justice reform initiative. The state has made a counterargument that housing, feeding, and guarding many fewer indigent pretrial defendants will result in major savings to be offset against the new requirements. These are matters that will have to be sorted out in the proceedings before the council.