Defendants Forced to Await Trial in Jail Without Sufficient Proof, ACLU-NJ argues

The ACLU of New Jersey argued today in the Appellate Division that prosecutors have to produce a witness with some knowledge of the case before someone accused of a crime can be held without bail, in accordance with New Jersey law. Prosecutors in two counties, Camden and Hudson, relied solely on an affidavit that provided a bare-bones account of the arrest as justification to hold people awaiting trial in jail, when the law calls for prosecutors to make a stronger case based in evidence.

A third defendant, who opted for a plea bargain before the case could be heard today, was given probation — showing the absurdity of forcing him to await trial in jail when the alleged crime itself was not severe enough to warrant incarceration, the ACLU-NJ said.

The ACLU-NJ contended today before the appeals court that unless the prosecutors can present evidence that can be subjected to adversarial testing, the law requires the defendants to await trial outside of jail.

“Detention before trial is the exception, and not the rule, especially in New Jersey, where money and detention are disfavored,” said ACLU-NJ Senior Staff Attorney Alexander Shalom, who argued before the Appellate Division today. “Holding someone who is presumed innocent prior to trial is only appropriate in extraordinary circumstances, and the State must demonstrate why that person cannot be safely monitored at home. Due process demands that whatever proof the State offers be testable, and in these cases, it is clearly not.”

The ACLU-NJ’s friend-of-the-court brief explains that in the two cases heard today, the prosecutors did not even explain the circumstances of the offenses charged, much less the extraordinary circumstances that necessitate holding the defendants in jail while awaiting trial.

In 2014, voters approved a constitutional amendment to reform pretrial justice in New Jersey by replacing a system of money bail with fairer, risk-based bail and by putting in place more robust speedy trial protections. The law went into effect on Jan. 1, 2017. Since then, only a handful of monetary bails have been issued in New Jersey. The ACLU-NJ appeared as a friend of the court last month in the case of another defendant who was denied discovery in his detention hearing. The Appellate Division ruled in favor the defendant; the State is appealing that case to the Supreme Court.

“We’re challenging the processes that allow the detention of people who are awaiting trial in jail without providing a meaningful opportunity to contest the State’s allegations,” Shalom said. “No one thinks detention hearings should be mini-trials, but they cannot be rubber stamps either.”

The briefs in the cases can be read at the ACLU-NJ’s pretrial justice page.