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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Saturday, March 26, 2011

Purpose of Bail

Purpose of Bail

The purpose of bail is to ensure that a defendant appears for all court events, both pre-trial and trial. Its purpose is not to punish nor is it to detain a person pre-trial to assure he doesn't commit another crime (preventative detention). State v. Johnson, 61 N.J. 351, 364 (1972); State v. Fann, 239 N.J. Super. 507 (Law Div. 1990). Additionally, the Court has said that the constitutional right to bail must not be unduly burdened, i.e., that excessive bail should not be utilized as a means of confining the accused until trial. State v. Johnson, supra, 61 N.J. at, 364-365.

c. Authority to Set Bail

A Superior Court judge may set bail for a person charged with any offense. Bail for any offense except murder, kidnapping, manslaughter, aggravated manslaughter, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, a person arrested in any extradition proceeding or a person arrested under N.J.S.A. 2C:29-9b for violating a restraining order may be set by any other judge, or in the absence of a judge, by a Municipal Court administrator or deputy court administrator. In most cases, bail is set initially in Municipal Court by a Municipal Court judge. See R. 3:26-2(2). 9

d. Factors to Consider when Setting Bail in a non-capital case.

In State v. Johnson, supra, 61 N.J. at 364-365 the Court identified a number of factors that must be considered in fixing bail

1. The seriousness of the crime charged against the defendant, the apparent

likelihood of conviction, and the extent of the punishment prescribed by

the legislature.

2. The defendant's criminal record, if any, and previous record on bail, if


3. The defendant’s reputation and mental condition.

4. The length of the defendant’s residence in the community.

5. The defendant’s family ties and relationships.

6. The defendant’s employment status, record of employment, and financial condition.

7. The identity of responsible members of the community who would vouch for the defendant's reliability.

8. Any other factors indicating defendant's mode of life, or ties to the

community, or bearing on the risk of failure to appear.

See also R. 3:26-1, which lists background, residence, employment, family status, the general policy against unnecessary sureties and detention as factors to consider when setting bail. R. 3:26-1 also allows the court to R.O.R. defendants and impose terms or conditions necessary to protect persons in the community.