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The Law Office of Thomas H. Martin Esq.Serving New Jersey With Integrity And Commitment

Being arrested and charged with a crime is one of the most stressful things that a person can go through.   In addition to a record, a conviction can result in fines or jail time and affect you driver’s license or job. The criminal justice system can be intimidating. You may feel confused and overwhelmed. A New Jersey criminal defense attorney can walk you through the process and protect your rights. Thomas H. Martin Esq. is committed to getting you the best result possible, either through a plea agreement or trial. Mr. Martin is a criminal defense attorney experienced in handling all types of criminal cases, ranging from traffic offenses and low-level misdemeanors to major felonies.  He goes to court all the time and routinely deals with the prosecutors and judges in New Jersey.

With years of experience trying cases in New Jersey, he will work with you to prepare your case for trial, and he will be there to answer any questions or concerns that may arise during the handeling of your casel.   Thomas H. Martin Esq. will provide you with competent advice regarding all available options so that you can make informed decisions regarding how your case will be handled.

When you are going up against the State of New Jersey you need experienced legal counsel. Regardless of whether you are facing an indictable criminal charge in the Superior Court, a drug charge in Municipal Court, a DWI, or even a simple motor vehicle charge you want to have the best possible result. Thomas H. Martin has been helping people face the most difficult of situations for years. Contact Thomas H. Martin at (732) 431-2224 to arrainge a free consultation.

 

Bail

Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If a bondsman is used and a surety bond has been obtained, the fee for that bond is the fee for the insurance policy purchased and is not refundable.

In some countries granting bail is common. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Legislatures may also set out certain crimes to be not bailable, such as capital crimes.

 

United States

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence, those that had not already done so enacted their own versions of bail law.

Section 9 of Virginia‘s 1776 Constitution states “excessive bail ought not to be required…” In 1785, the following was added, “Those shall be let to bail who are apprehended for any crime not punishable in life or limb…But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail.” Section 29 of the Pennsylvania Constitution of 1776 states that “Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate.”

The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution, on which Samuel Livermore commented, “The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail…?” The Supreme Court has never decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.[12]

The Sixth Amendment to the Constitution, like the English Habeas Corpus Act of 1679, requires that a suspect must “be informed of the nature and cause of the accusation” and thus enabling a suspect to demand bail if accused of a bailable offense.

 

Judiciary Act of 1789

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge‘s discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.

The Judiciary Act states, “Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.”

 

Bail Reform Act of 1966

In 1966, Congress enacted the Bail Reform Act of 1966, which states that a non-capital defendant is to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect’s danger to the community, only in capital cases or after conviction is the judge authorized to do so.

The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.

The Judicial Council committee recommended that, even in non-capital cases, a person’s dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.

 

Current federal law

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.

18 U.S.C. § 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.

The Supreme Court upheld the 1984 bail law’s pretrial detention provisions in the 1987 case of United States v. Salerno.

 

State laws

Bail laws vary somewhat from state to state, as is typical of U.S. jurisprudence. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Recently, some states have enacted statutes modelled on federal law that permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.

Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule.[13] These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.[14]

In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less. In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.[15]

 

Forms

In the United States there are several forms of bail used, these vary from jurisdiction, but the common forms of bail include:

  1. Recognizance – when an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an unsecured appearance bond or release on one’s own recognizance.[16]
  2. Citation Release also known as Cite Out – This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.[16]
  3. Surety Bond – by a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by abail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially jurisdictions that prohibit bail bondsmen, may demand a certain amount of the total bail (typically 10%) be given to the court, which, unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. This is also known as surety on the bond. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond. In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee’s return to court.[16]
  4. Property Bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.[16]
  5. Immigration Bond – used when the defendant that been arrested is an illegal alien. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE). The typical cost associated with this specialty bond is often fifteen to twenty percent of the original bond amount.[17]
  6. Cash – typically “cash-only,” where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.[18]
  7. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.
  • Conditions of release – many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.
  • Protective order also called an ‘order of protection’- one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.

Controversy

A series of reports by National Public Radio in January 2010 criticized practices in many jurisdictions, which limit funding for pre-trial release programs and result in many poor defendants being held in jail because they cannot afford bail. The series reports that because of the cost differential between pre-trial release (using house arrest, ankle monitor, periodic check-ins, or without monitoring) and detention in jail, this results in billions of dollars of spending and jail overcrowding, which does not significantly increase the chances of a defendant appearing for trial. It also attributed the constriction of resources for what supporters feel are cost-effective pre-trial release programs to lobbyists for bail bondsmen. The series also reported that bondsmen benefit from laws or practices that do not require them to pay the government a substantial fraction of the actual bail forfeited when defendants fail to show, creating a lack of incentive for bondsmen to compel their customers to appear in court. The series also documented cases where the inability to make bail pressured detainees to plead guilty, and had a negative impact on their economic circumstances, compared with those detainees who could afford bail.[19]

There has been a response to the argument that poor defendants cannot get out of jail on bail because they cannot afford it. In the state of New Jersey, like many states throughout the country, a defendant can secure a bail bond by agreeing to pay the fee, which is normally ten percent of the bond amount over time. Throughout the industry this is commonly referred to as a payment plan. In theory, this may seem like a good idea; however, if a defendant fails to make a payment, the bail bond company does not have the right to revoke the bail that was set by a judge. This allows a defendant to be released on bail without ever paying the premium owed to the bail bond company.

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