BREAKING: Third Circuit Tap Dances to Uphold Challenge to NJ Bail Reform Act

U.S. Court of Appeals for the Third Circuit upholds challenge to New Jersey’s Bail Laws by engaging in a legal tap dance – paving the way for additional challenges and a potential trip to the U.S. Supreme Court.

July 9, 2018

– Jeff Clayton, Executive Director


It’s been a generation since Courts began considering the constitutionality of preventative detention statutes, detention without bail, long thought unconstitutional in our system of government.

The U.S. Supreme Court ultimately upheld a system of risk-based preventative detention as constitutional in the landmark case of U.S. v. Salerno in 1987.  Few states followed the lead of the federal system or Washington D.C. system where the posting of a financial condition of bail, whether it be cash, property, or surety, was generally allowed.  Some even expanded preventative detention to other classes of crimes.

In the case of Holland v. Rosen, Plaintiff Brittan Holland argued that he has right to bail under the Eighth Amendment to the Federal Constitution.

On July 9, 2018, a panel of the U.S. Court of Appeals for the Third Circuit upheld the District Court’s decision, but did so resting on a key distinction.  Holland plead the right to have the court consider the posting of a cash or surety bond as a potential less restrictive form of release than he obtained, including electronic monitoring, house arrest, and other restrictions.

The Third Circuit Court of Appeals noted the constitution provides a right to a personal surety, a point that Holland didn’t raise:

Thus personal surety bail may be characterized as a form of monetary bail, in that the surety agreed to pay a sum of money if the defendant failed to appear. But Holland does not argue the Amendment provides a right to personal surety bail; rather, he asserts the Amendment provides a right to pretrial release secured by cash bail or corporate surety bond. 

The question is…what does a “personal surety right” in this context mean?  It means that a system of pledges of forfeiture proceeds by third parties who agree to do it without compensation is what Holland has a right to under the Eighth Amendment, but that he cannot then secure the posting of the same amount of pledge of bail himself or by means of a third party licensed and regulated in the State of New Jersey to do so even if it was not required to be posted up front.

In fact, New Jersey has not denied access to licensed bail bonding agents or third-parties and they continue to accept the bonds, and also accept cash for bail.  Thus, we do not think New Jersey’s new system has somehow resurrected the previously abolished personal surety distinction.

It will be interesting to see how this distinction plays out given that the fact that the Supreme Court has ruled that contracts for indemnity at bail were allowable as a means for defendants to get out of jail and were not void as against public policy.  This would include contracts for compensated sureties or for indemnification of personal sureties.  The late Professor Daniel Freed in fact called this a “watershed” decision in American History, caused by essentially societal movement which it made difficult for those from other places, cultures, and traditions to have personal friends who would vouch for them without contracts of indemnity or profit.

Of course, the Third Circuit notes that the Supreme Court has recognized that indemnity contracts for bail are allowable by citing Leary v. United States, but they ignore a key portion of the opinion, written by Justice Oliver Wendell Holmes, Jr.:

But bail no longer is the mundium, although a trace of the old relation remains in the right to arrest. The distinction between bail and suretyship is pretty nearly forgotten. The interest to produce the body of the principal in court is impersonal and wholly pecuniary. If, as in this case, the bond was for $40,000, that sum was the measure of the interest on anybody’s part, and it did not matter to the government what person ultimately felt the loss, so long as it had the obligation it was content to take.

Here, the State of New Jersey has allowed for contracts for indemnity for bail, as in Leary similar to the State of New York, and the State Constitution requires consideration of monetary bail prior to detention (“no amount of monetary bail” is sufficient in order to order detention with no bail).

So, the question is if there is a right to bail as defined as a personal surety under the Eighth Amendment and how that applies here, other than a right to bail by direct means or by the hiring of a surety bonding company licensed to post bonds in the State of New Jersey.  Plus, we wonder how a similar Plaintiff like Holland would fare based on making a claim under the State Constitution, which directly requires consideration of “monetary bail” prior to detention becoming constitutionally allowable.

Regarding claims of intrusions of liberties prohibited by the Fourth Amendment, a centerpiece of New Jersey’s bail reforms, imposing supervision and a mixed basket of restrictive non-monetary and electronic conditions, the Court declined to give a victory to Holland because he stipulated to the release conditions.  As we have pointed out, this was because the State threatened to file a motion for preventative detention and so Holland had to make the deal or else face detention.  He made a deal with a gun to his head, like many defendants are doing in New Jersey right now.  Unfortunately, that coerced decision as it turns out was fatal to his claim.

But, the Third Circuit recognized that it is not considering the argument that “the State’s interest in home detention and electronic monitoring is unreasonable absent a heightened showing of dangerousness because it was not raised to the District Court.”  This will likely be another avenue for challenge to New Jersey’s system not raised in Holland.

The U.S. Court of Appeals for the Third Circuit and District Court are co-conspirators in allowing the State of New Jersey to continue to cook the numbers to make things look rosy, when in fact bail reform has had little impact in terms of any metrics available.

Perhaps if extended discovery is ever had in this case, Paul Clement and his team will be able to find out.  The Court notes the reduction in the jail population in the opinion, but fails to note it fell more on a percentage basis the year the before bail reform, due to other factors like dramatic reforms in drug laws which are driving reductions across the entire system.

No one has yet presented what happened since January, 2017 in terms of a couple of key issues: (1) is the new system better in terms of racial outcomes driving by the Arnold risk algorithm, preventative detention, and use of non-monetary conditions; (2) are people showing up for court at greater numbers; and, (3) are crimes while on bail lower.  For that, the Third Circuit, District Court, and State of New Jersey have no answers.

Finally, we would assert that the D.C. and Federal systems, where bail has largely been eliminated were upheld a generation ago.  While the U.S. Supreme Court may get this case, authored by two Clinton and one Obama nominated judges, we think the constitutional litigation over the risk-based system, behavior prediction, electronic conditions as excessive bail or violation of rights to liberty or privacy is only just beginning.

As New Jersey continues the march of bail reform, every other state to consider it other than New Mexico has rejected the no-money bail system approved by voters in 2014. Instead, states are looking at meaningful changes to address regulation and due process in an effort to reform their systems – something we have played a key role in. There is simply too much at stake to gamble with public safety and criminal accountability.

At this point, we will await word as to whether the Plaintiffs intend to appeal to the U.S. Supreme Court or, noting that this was a preliminary injunction, opt to go through discovery and later to trial in the District Court.


New Jersey Courts Attempt to Tweet Their Way to Bail Reform Success

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