On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Halpern, Larner and King. The opinion of the court was delivered by King, J.A.D.
The issue in this case is the relationship between R. 3:26-5 entitled "Justification of Sureties" and the 10% cash bail program permitted by R. 3:26-4(a).
Effective September 10, 1973 the Supreme Court amended R. 3:26-4(a) to provide:
In any county, with the approval of the Assignment Judge, a program may be instituted for the deposit in court of cash in the amount of 10 percent of the amount of bail fixed.
To date, 11 counties have adopted a 10% cash bail program.
The 1973 rule amendment followed the Supreme Court's experimental authorization of a 10% cash bail program in Atlantic County in 1971. Forman, "Atlantic County Ten Percent Cash Bail Project," 1 Crim. Just. Q. 185 (1973). The objective of this experiment was to try to "eliminate the punitive and often-times abuse-laden corporate surety bond system." Id. The program was motivated by the success of similar efforts in Cook County, Illinois, and the District of Columbia.
No specific guidelines were set down by our Supreme Court when R. 3:26-4(a) was amended in 1973. Then Assignment Judge Horn of Atlantic County had previously set forth procedures which he developed when the pilot program was started in February 1972. Forman, supra at 192. Judge Horn's letter order implementing the program states: "Under this system bail will be set as has been heretofore. Once the amount is set, however, the defendant shall be permitted to post directly an amount of ten percent of the bail, and shall execute a recognizance bond for the full amount." The procedures also contain an option for defendant to post a freehold or property bond, if he desires. The procedures provide that upon the deposit of 10% of the bail, and the execution of the bail bond, the accused shall be released from custody. When the conditions of the bail bond are performed the 10% cash deposit is to be returned to the accused or the person who posted it. Id. at 193-194.
Following the success of Atlantic County's pilot project, and the September 1973 amendment to R. 3:26-4(a), ten counties have adopted their own programs. Each of these counties has adopted essentially similar procedures for the operation of the 10% cash bail program. To date the Supreme Court has not adopted formalized procedures for the program.
This court has recently considered the program. We held that under this program the total amount of bail must be set at a reasonable amount, without regard to the availability of the 10% cash bail program. We reversed a trial judge who set the total amount of bail with an eye towards whether the 10% cash amount was adequate to insure the defendant's appearance, saying:
It is abundantly clear that bail was fixed with the predetermined intent that the 10% cash amount was the motivating force, not the $30,000 actually fixed. This approach is contrary to the Supreme Court's intent in adopting R. 3:26-4(a). The rule contemplates bail to be fixed in such reasonable amount as will ensure defendant's appearance at all stages of the proceedings until final determination of the matter. The 10% cash deposit program, as it is now operative, is not to be utilized in lieu of reasonable bail. Rather it is to empower the trial judge, in counties where the program has been approved by the assignment judge, to permit the posting of 10% "of the amount of bail fixed". This would avoid the necessity of paying for a surety bond and enable a defendant to get back his deposit on compliance with the terms of the recognizance. [ State v. McNeil , 154 N.J. Super. 479, 481 (App. Div. 1977)]
With this background we turn to the question posed by this case arising from Hudson County, which adopted the program in August 1973, ...