Federal Court Victory: Limits on Cash Bail Are Constitutional

July 9, 2018

Suit by insurance industry sought to force NJ to use monetary bail

NEWARK - The American Civil Liberties Union of New Jersey (ACLU-NJ) applauds today’s decision by the Court of Appeals for the Third Circuit affirming the constitutionality of New Jersey’s landmark Criminal Justice Reform Act (CJRA), which went into effect in January 2017.

The class-action lawsuit, Brittan B. Holland, et al. v. Kelly Rosen, et al. (PDF), sought to force New Jersey judges to consider monetary bail on equal footing with non-monetary conditions of release and claimed the ability to buy one’s way out of jail and out of conditions of pretrial release is a constitutional right. That is not so, the court ruled.

“This important decision confirms what bipartisan lawmakers in New Jersey have known for years: there is no reason -- legal or otherwise -- why the thickness of anyone’s wallet should dictate their liberty and freedom,” said Alexander Shalom, Senior Supervising Attorney at the ACLU-NJ.

The ACLU-NJ, joined by the National ACLU, the Drug Policy Alliance, Latino Action Network and National Association for the Advancement of Colored People (NAACP) New Jersey State Conference, submitted a friend-of-the-court brief before the court. Shalom, who has argued each of the seven CJRA cases heard by the New Jersey Supreme Court, also presented oral arguments before the Third Circuit in this case.

The plaintiffs included Lexington National Insurance Corp., a Florida company based in Maryland that does business with the bail-bond industry. The bail bond industry has worked to upend the successful New Jersey reforms and prevent other jurisdictions from following in the state’s footsteps.

The key question in the Holland case was “whether there is a federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions of pretrial release,” the court wrote in its 52-page decision.

“Our answer is no,” the court wrote. “Thus we affirm the District Court’s comprehensive and well-reasoned ruling.”

In coming to its decision, the Court examined the history of money bail and commercial bail bonds. It held that: “Monetary bail often deprived presumptively innocent defendants of their pretrial liberty, a result that surely cannot be fundamental to preserving ordered liberty.”

The CJRA largely did away with money bail in favor of a risk-based assessment system that assesses whether someone charged with a crime is a flight risk or a danger to the community. New Jersey’s pretrial jail population fell 24 percent between its inception and April 30, 2018.

Holland, accused of second-degree aggravated assault for his role in an April bar fight, was released subject to home detention and electronic monitoring. His release conditions were based on a risk-assessment protocol implemented by CJRA.

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