How New Jersey’s Bail Reform Can Hurt Veterans
THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL
In January 2017, New Jersey’s State Legislature passed a bail reform bill replacing the traditional system with one that would consider a defendant’s flight risk and public safety in the decision to detain or release.
As part of the new legislation, defendants undergo a mandatory public safety assessment (PSA). The PSA score, based on the defendant’s age, offense, prior convictions, and past failure to appear in court, is used to determine the risk of releasing the defendant before trial. A judge then considers the PSA score and decides whether the defendant will be detained until trial or released.
Unfortunately, the new reform bill can negatively impact our nation’s veterans, whose offenses often stem from untreated or undertreated PTSD, severe depression, or even prescription drug abuse, as they often develop opiate addictions as a result of combat-related injuries. In obtaining a PSA score, factors such a current treatment for mental illnesses are often not considered. Furthermore, the assessment often magnifies non-violent offenses that lack evidence to the degree of violent crimes.
Consider the case of one of our clients, a highly decorated veteran who was detained on a theft charge. As a 9/11 First Responder and Soldier in Iraq, he took part in over 150 combat missions. After his service, however, the veteran suffered from Post-Traumatic Stress Disorder, for which he received little or no help from the U.S. military.
The manifestation of the veteran’s PTSD destroyed his relationship with his long-term girlfriend, which whom he shared a son. He was accused of harassing her, and she ultimately filed a restraining order against him. Additionally, untreated symptoms of PTSD ultimately resulted in a car accident that left him badly hurt and addicted to pain medication. He was soon arrested for a theft charge stemming from his addiction.
Desperate for help, he checked himself into a long-term, inpatient drug treatment program for help. The program allowed him to recover from the symptoms of PTSD and began to repair his relationship with his girlfriend. The veteran’s proactive steps towards recovery illustrated his desire for treatment and better health. However, while an inpatient in this program, the veteran was unable to attend a court date with regard to a mere allegation of domestic violence.
On completion of the program, the veteran was arrested on a bench warrant and denied release due to his missed court appearance, previous abuse of opioids, and harassment. However, the court failed to acknowledge the proactive steps the veteran took towards recover for PTSD and addiction, and the inpatient drug treatment program he was enrolled in. The DU Statute also elevated the harassment charges against the veteran to a violent crime, despite harassment being a nonviolent offense under New Jersey law.
Though there were no charges – and no evidence – of any violent act(s) committed by this veteran against his ex-girlfriend, under the new bail reform law it is not necessary for a defendant to have committed an act of violence in order to be detained. Harassment and stalking are considered predicate acts of domestic violence for which the law authorizes the detention:
A prosecutor may file a motion with the court at any time, including any time before or after an eligible defendant’s release pursuant to section 3 of P.L.2014, c. 31 ( C.2A:162-17 ), seeking the pretrial detention of an eligible defendant for:
Restraining orders are often filed without any actual evidence of wrongdoing. In the absence of any history of violent acts detention is unjust because it raises the level of non-violent acts to the level of violent acts, and allows for the detention of defendants who would otherwise have been released.
Detaining veterans who commit non-violent offenses while releasing violent offenders creates an unfair situation that is contrary to the spirit of the reform bill. Furthermore, as the PSA is meant to weigh the likelihood that the defendant will commit another crime while awaiting trial, it is particularly unjust to the veteran in our example above. His charges stem from addiction, and since he voluntarily checked into a drug treatment program, the chances that he will commit another crime are greatly reduced.
For bail reform to be successful in rectifying unfairness, the pretrial detention hearing process needs to be further refined. Most importantly, the mental health of our veterans needs to be a priority – both before PTSD and mental health problems cause personal and legal issues, and afterwards.
N.J.S.A. 2A:162-16 Detaining eligible defendant during preparation of risk assessment prior to trial.
a. An eligible defendant, following the issuance of a complaint-warrant pursuant to the conditions set forth under subsection c. of this section, shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessment with recommendations on conditions of release pursuant to section 11 of P.L.2014, c.31 (C.2A:162-25) and for the court to issue a pretrial release decision.
b. (1) Except as otherwise provided under sections 4 and 5 of P.L.2014, c.31 (C.2A:162-18 and C.2A:162-19), the court, pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17), shall make a pretrial release decision for the eligible defendant without unnecessary delay, but in no case later than 48 hours after the eligible defendant’s commitment to jail. The court shall consider the Pretrial Services Program’s risk assessment and recommendations on conditions of release before making any pretrial release decision for the eligible defendant.
(2)After considering all the circumstances, the Pretrial Services Program’s risk assessment and recommendations on conditions of release, and any information that may be provided by a prosecutor or the eligible defendant, the court shall order that the eligible defendant be:
(a)released on the eligible defendant’s own recognizance or on execution of an unsecured appearance bond; or
(b)released on a non-monetary condition or conditions, with the condition or conditions being the least restrictive condition or combination of conditions that the court determines will reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process; or
(c)released on monetary bail, other than an unsecured appearance bond, to reasonably assure the eligible defendant’s appearance in court when required, or a combination of monetary bail and non-monetary conditions, to reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process; or
(d)detained in jail, upon motion of the prosecutor, pending a pretrial detention hearing pursuant to sections 4 and 5 of P.L.2014, c.31 (C.2A:162-18 and C.2A:162-19).
c.A law enforcement officer shall not apply for a complaint-warrant except in accordance with guidelines issued by the Attorney General, and a court may not issue a complaint-warrant except as may be authorized by the Rules of Court.
d. (1) A defendant who is charged on a complaint-summons shall be released from custody and shall not be subject to the provisions of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.).
(2) (a) If a defendant who was released from custody after being charged on a complaint-summons pursuant to paragraph (1) of this subsection is subsequently arrested on a warrant for failure to appear in court when required, that defendant shall be eligible for release on personal recognizance or release on bail by sufficient sureties at the discretion of the court. If monetary bail was not set when an arrest warrant for the defendant was issued, the defendant shall have monetary bail set without unnecessary delay, but in no case later than 12 hours after arrest. Pursuant to the Rules of Court, if the defendant is unable to post monetary bail, the defendant shall have that bail reviewed promptly and may file an application with the court seeking a bail reduction, which shall be heard in an expedited manner.
(b)If the defendant fails to post the required monetary bail set by the court pursuant to this paragraph, the defendant may not be detained on the charge or charges contained in the complaint-summons beyond the maximum term of incarceration or term of probation supervision for the offense or offenses charged.