Hail Mary Lawsuit in NJ is about Bail Industry Profits, Not Safety

Daniel J. Dew Jul 11, 2017

As bail reform proposals gain momentum across the country, the bail bond industry has been under the gun and bail agents—like Dog the Bounty Hunter—are looking to protect their profits. Bail reform advocates have been challenging the constitutionality of cash bail in court for years, but now the bail industry itself has filed suit to oppose New Jersey’s new bail initiatives.

The lamentable New Jersey lawsuit is, at best, a stretch, and meritless, at worst.

When criminal defendants await trial, most courts require them to pay a refundable bail bond to the court to help ensure that defendants appear for trial. Those without the financial resources to post the bond either remain in jail until trial, or pay 10 percent of the bond to a bail agent in exchange for the agent posting the remainder. Thus, low-income individuals accused—but not yet tried or convicted—of non-violent crimes sit in jail simply because they lack the money for bail, while wealthier defendants accused of more dangerous crimes are often free to return home on bond before trial.

Bail reform advocates have long-argued that such a system is inherently unfair, and New Jersey has recently enacted new laws that significantly changed the state’s bail bond regime. 

New Jersey’s historic bail reform has moved away from traditional cash bail and is instead relying on scientific assessment tools designed to help judges determine whether a defendant should be released into the community pending trial. When pre-trial release is deemed safe and appropriate, New Jersey courts may impose conditions on release such as electronic monitoring and periodic check-ins. New Jersey points to research showing that risk assessment tools and release conditions are better at ensuring public safety and getting defendants to appear for trial.

The bail bond industry has opposed New Jersey’s reform effort, filing suit in federal court claiming that the right to cash bail is inherent in the Constitution’s Eighth Amendment and that some pre-trial release conditions violate the accused’s Fourteenth Amendment due process rights.

The Eighth Amendment to the U.S. Constitution succinctly states that “excessive bail shall not be required . . . .” Lawyers for the bail industry contend that this prohibition presupposes an underlying “right” to bail. Unfortunately for the plaintiffs, the Supreme Court has never held that there is a constitutional right to bail. In fact, as the bail bond lobby itself has conceded, courts may deny bail when no amount of money will protect the community or ensure that a defendant appears for trial. Such a concession suggests that bail is not an affirmative right for the accused.

On the contrary, the High Court’s bail cases regarding statutory bail schemes have all held that when the legislature has made bail available a court may not look beyond the factors, considerations, amounts, or conditions that the legislature has prescribed for setting bail. In United States v. Solerno, for example, the Supreme Court explained that the Eighth Amendment does not restrict the factors that the legislature may allow courts to consider when setting bail—only that bail must be set to “ensure the stated goal[s], and no more.” Thus, Solerno views the constitutional limits on excessive bail as limits on the judiciary, not the legislature.

In New Jersey, the legislature appears to have determined that cash bail does little or nothing to protect the community and ensure that criminal defendants appear for trial, and has therefore changed the state’s pretrial release system. Under the Supreme Court’s jurisprudence, the New Jersey legislature’s determination should withstand constitutional scrutiny, and so as long as New Jersey judges act within the new statutory framework, federal courts will be unlikely to rule that the new system violates the Eighth Amendment.

The challenge to New Jersey’s bail reform also argues that non-monetary conditions of an accused’s pre-trial release—e.g., electronic monitoring and court check-ins—restrict a defendant’s liberty before conviction and thus violate the constitutional right to due process. This argument is bound to lose. In Solerno, the Supreme Court held that pretrial detention is a permissible public safety regulation and not a punishment that violates due process. Thus, if pretrial lock-up is constitutionally permissible for ensuring public safety, then liberty restrictions less restrictive than jail cells—such as ankle bracelets and court appearances—will likely be ruled constitutional as well.  

Given the likelihood that the constitutional challenge to New Jersey’s new pretrial regime will fail, a ruling in New Jersey’s favor upholding the state’s reforms should encourage other states to pursue similar reforms and rely less on inherently unfair, ineffective cash bail systems.

Daniel J. Dew is a legal fellow at The Buckeye Institute’s Legal Center and an expert in criminal justice reform.