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State v. Fann

Decided: January 18, 1990.


Haines, A.j.s.c.


This opinion considers bail procedures in criminal cases. It holds that the fixing of bail is a "critical stage" in a criminal prosecution which requires courts to honor defendants' constitutional rights to counsel, to appear in person and to due process.

Anthony Fann is charged with aggravated assault, possession of a knife for an unlawful purpose and possession of a weapon by a convicted person. He has been indicted. Bail was set at the time of his arrest. This court, at the time of Fann's first appearance, set bail at $25,000, with surety, denying a ten

percent cash arrangement. Three bail reduction motions have been filed on his behalf. The first motion, heard on June 9, 1989, was denied. A second motion, heard on August 18, 1989, resulted in a reduction of bail to $5,000 with full surety. A further motion, heard on October 6, 1989, resulted in a denial of any further reduction. He is in jail.

Terry Jerome Johnson is charged with unlawful possession of a weapon and theft, a disorderly persons offense. The indictable possession charge has been downgraded and returned to a municipal court for final action. Trial is pending. This court fixed initial bail at $5,000 with surety and denied permission for a cash payment of ten percent. Later, on review, bail was reduced to $1,000 with a ten percent cash payment allowed. He has been unable to make bail and is confined in the Burlington County Jail. No bail reduction motions have been made on his behalf.*fn1

Counsel for defendants moves to reduce their bail, raising various procedural questions in that connection.

The State argues that the issues involved here are moot because both defendants are represented by counsel at the present time, have had their bail reviewed and have the capacity to bring motions for further review. These arguments, however, overlook the fact that defendants are in jail and have been unable to post the bail set by the courts. Since they have the right to file motions for further bail review, as they have, they are entitled to raise questions relating to the review process as it has affected their present bail requirements and as it affects their motion. Consequently, the issues are not moot.

A. The Purpose of Bail.

The purpose of bail is to guarantee the appearance of defendant in court for trial and pretrial events. It is not to be used

for punishment; high bail is not to be used as a device to eliminate any supposed risk of further criminal activity -- so-called "preventive detention." State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972). In Johnson, the Supreme Court said:

Historically . . . in New Jersey the right of the individual to bail before trial is a fundamental one. [at 355, 294 A.2d 245]

Expressed in pragmatic terms this right to bail means that the accused has the right to pretrial liberty on such bond in such amount as in the judgment of the trial court under the circumstances of the case will insure his appearance at the trial. If, however, the court is satisfied from the evidence presented on the application for bail that regardless of the amount of bail fixed, the accused if released will probably flee to avoid trial, bail may be denied. [at 359-360, 294 A.2d 245]

The A.B.A. Standards Relating to Pretrial Release (Rev.1985) 10-5.3 provide in part:

The sole purpose of monetary conditions is to assure the defendant's appearance. Monetary conditions should not be set to punish or frighten the defendant, to placate public opinion, or to prevent anticipated criminal conduct.

Standard 10-5.4 provides rules for preventive detention, thus suggesting its permissible use. Our courts have not sanctioned its use and it is not a consideration here.

B. The Significance of Bail.

The right to bail is a constitutional right. Our Constitution (1947), Art. 1, pars. 11 and 12 provides:

No person shall, after acquittal, be tried for the same offense. All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.

Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual punishments shall not be inflicted.

The right to bail was established first by statute and later incorporated in our 1844 and 1947 Constitutions. Johnson, supra, 61 N.J. at 354, 294 A.2d 245.

The Eighth Amendment of the United States Constitution provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

R. 3:26-1 refers to "the general policy against unnecessary sureties and detention."

Johnson noted that: "As of 1970 the Constitutions of 37 States by language similar to ours had established such a right to bail in non-capital cases." 61 N.J. at 355, 294 A.2d 245. Also that "the framers [of the various Constitutions] obviously regarded the right to bail as imperatively present. It was considered that pretrial release on non-capital charges was a fundamental right founded in freedom and human dignity, reflected in the everpresent presumption of innocence, and requiring firm articulation in the Constitutions." Id. at 360, 294 A.2d 245.

The presumption of innocence, a basic presumption in our system of criminal law, is a paramount consideration when fixing bail, perhaps somewhat diminished by the requirement that probable cause be present before an arrest is permitted. In Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951), the Court stated that "the presumption of innocence . . . would lose its meaning" if there were no right to bail. In Johnson the Supreme Court said: "To deny bail . . . is to punish an accused before conviction, and to ignore the presumption of innocence which attends every citizen charged with crime. . . ." 61 N.J. at 355-356, 294 A.2d 245. An important consideration is the need for trial preparation; pretrial release "permits the unhampered preparation of a defense. . . ." Stack, 342 U.S. at 4, 72 S. Ct. at 3.

The American Bar Association, in the introduction to its Standards Relating to Pretrial Release (Approved Draft 1968)

at 2-3, underlined the significance of bail from the standpoint of a defendant:

The consequences of pretrial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defense. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. Moreover, there is strong evidence that a defendant's failure to secure pretrial release has an adverse effect on the outcome of his case. Studies in Philadelphia, the District of Columbia and New York all indicate that the conviction rate for jailed defendants materially exceeds that of bailed defendants. For example, of defendants charged with grand larceny forty-three percent of those on bail pending trial were convicted while seventy-two percent of those in jail were convicted. [Citation omitted] In terms of the sentence imposed on convicted persons, the bailed defendant is far more likely to receive probation; his jailed counterpart, having been unable to demonstrate his reliability under supervision, more frequently goes to prison. [Citation omitted] Of course some of the factors, such as strong evidence of guilt or a long criminal record, that lead to high bail and hence detention, will also cause a court to find the defendant guilty and to sentence him to prison rather than to give him probation. But a recent study which attempted to hold other causative factors constant indicates that there is a strong relationship between detention and unfavorable disposition. [Citation omitted]

The Johnson court pointed to similar consequences:

Others opposing the idea point to the strong indication revealed by studies that an accused who has been detailed in jail between his arraignment and the final adjudication of his case is more likely to receive a criminal conviction or jail sentence than an accused who has been free on bail. Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.Rev. 641 (1964). The correlation between the pretrial status (jail or bail) and the severity of the sentence after conviction has been described as "extraordinary," the jailed defendant being two or three times more likely to receive a prison sentence. Foote, The Coming Constitutional Crisis in Bail, supra, 113 U.Pa.L.Rev. at 960. [61 N.J. at 361, n. 6, 294 A.2d 245]

The Foote article, cited in Johnson, points to the "shocking discrepancy which disadvantages the poor in our administration of criminal justice," referring primarily to bail practices. Foote, op. cit, supra at 960. Studies, Foote reports, establish three things which are "bound to pose most serious constitutional questions":

First, it has been established that pretrial imprisonment of the poor solely as a result of their poverty, under harsher conditions than those applied to

convicted prisoners, so pervades our system that for a majority of defendants accused of anything more serious than petty crimes, the bail system operates effectively to deny rather than to facilitate liberty pending trial.

Second, it is also apparent that but for their poverty a substantial proportion of these jailed indigent defendants would never suffer any imprisonment because, after serving their pretrial jail term, they are either not convicted or the disposition of their cases does not include imprisonment.

Third, there is an extraordinary correlation between pretrial status (jail or bail) and the severity of the sentence after conviction, the jailed defendant being two or three times more likely to receive a prison sentence. The last finding raises 0 difficult problems of evaluation, for some other variable may be an important factor in causing both the pretrial jail status and the more severe sentence, although the most recent study shows that the ratio holds constant even when some of the more obvious variables are controlled. [ Ibid.]

C. Bail Procedures.

Our rules provide little procedural guidance for courts addressing bail matters. The only ...

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