State bail reform mandate stirs controversy

UNION COUNTY, NJ — Municipalities throughout the state are being asked to provide representation for certain defendants in Superior Court as part of new bail-reform policies that went into effect in January.

Defendants provided with this representation include some indigent offenders accused of a disorderly persons crimes or domestic violence offenses.

The mandate to send municipal prosecutors to Superior Court was put into place to speed up a defendant’s first court appearance and to centralize the proceedings.

Under the new system, many of those charged with crimes will be going to county jail — instead of the municipal lockup — and a defendant now must make their first appearance in court within 48 hours of his incarceration. The new public defender mandate was implemented in order to make this new court timetable possible.

According to the New Jersey League of Municipalities, Judge Glenn Grant, acting director of the state Administrative Office of the Courts, has advised county assignment judges to decide how such domestic violence defendants would be represented at detention hearings and that the vast majority of these county assignment judges have ordered municipal public defenders to provide representation for indigent defendants in superior court.

The major overhaul of New Jersey’s bail rules were set up in order to establish non-monetary bail alternatives for individuals unable to afford bail while awaiting their trials. The new rules are supposed to speed up pretrial procedures and nearly eliminate monetary payment of bail.

The new bail rules will now determine pretrial incarceration based on the risk in releasing a defendant, rather than whether a defendant can post bail, and courts will also be required to meet tighter deadlines for bringing a defendant to trial. It also calls for new technologies that would speed up proceedings, such as videoconferencing for court appearances and the electronic filing of criminal complaints.

The requirements stem from legislation signed in August 2014 by Gov. Chris Christie and a state constitutional amendment approved by voters several months later, which aimed to change a system that many said worked against poor defendants, regardless of how minor their crimes.

The NJLM is taking issue with the mandate, calling it a “collateral” and “unintended consequence” of the new bail-reform rules.

Michael Darcy, executive director of the NJLM, said the mandate could indirectly affect municipal budgets and place an increased financial burden on taxpayers.

“The two issues are related,” Darcy told LocalSource last week in a phone interview. “It’s kind of one of those unintended consequences. Defendants need to be processed quickly now. It used to be that in Municipal Court, if someone was brought in for a domestic violence charge, since the detention hearing was at the county level, the county public defender took over. Now in domestic violence cases, municipal defenders will have to come to Superior Court.”

In a Feb. 22 open letter to mayors across the state, Darcy warned New Jersey’s mayors of the possible consequences of the new mandate.

“We have learned that New Jersey municipalities are being asked, for the first time and in contravention of long established practice, to provide representation for certain defendants in Superior Court,” Darcy wrote. “This appears to be a collateral, unintended issue related to bail reform.”

In the letter, Darcy stated that the NJLM had reached out to Grant, asking for his help in addressing this issue.

“The problem directly affects municipal public defenders, but unless remedied, it could indirectly affect your budget and your property taxpayers,” Darcy stated. “We understand that Judge Grant has advised county assignment judges to decide how such domestic violence defendants would be represented at detention hearings. It seems that the vast majority of county assignment judges, in turn, have ordered the municipal public defenders to provide representation for indigent defendants.”

Part of the NJLM’s argument against the mandate is the requirement that a part-time municipal public defender must prepare a defense and to travel, on short notice, to the county seat.

“Financial issues aside, the assignment of these matters to municipal public defenders is both improper and impractical,” Darcy wrote. “The municipal public defender is contracted to represent an indigent defendant in Municipal Court, not the Superior Court. If a defendant is convicted in the Municipal Court and appeals, the job of the municipal public defender is over. The local public defender does not appear in Superior Court on the matter. We believe it is then handled by the Office of the Public Defender, and that is how these matters should be handled as well.”

Darcy also noted in the letter that the NJLM advised Grant that, “it is impractical to require a sole practitioner, who goes to Municipal Court at most once per week, and sometimes once per month, to be available, on short notice, to attend these hearings,” and that the state public defender “has an office in each courthouse and can attend these hearings on a moment’s notice,” noting that this is what municipal prosecutors are doing.

“The county prosecutor handles the matter and the municipal prosecutor is not required to be in court on short notice,” wrote Darcy. “Unless help is provided by the judiciary, we will be forced to turn to the legislature for funding or cap relief. We will keep you advised of any future developments and we will request your active assistance, if further steps prove necessary.”

But Grant told LocalSource that municipal defenders are not legally to stay solely in the Municipal Courts, and that the NJLM’s letter may suggest otherwise.
“The letter suggests that the responsibility should be with the county’s public defender’s office,” Grant told LocalSource in a March 3 phone call. “This is not legally mandated. The judiciary can’t say that they have to do it this way.”

According to Grant, the mandate will serve to expedite and centralize the process as part of bail reform.

Grant also reiterated that the mandate only applies to those who are indigent and accused of municipal charges — lesser charges — and not Superior Court charges, which are for more serious offenses.

“This expedites the process,” Grant said. “The municipality has to provide public defenders immediately. The constitutional process by which we operate our system says that they get representation.”

Union County Assignment Judge Karen Cassidy did not respond to Local Source’s requests for comment as of press time.

According to John Donnadio, executive director of the New Jersey Association of Counties, the mandate may be addressing an issue with manpower.

“I think it’s a manpower issue and the court system is struggling,” Donnadio told LocalSource in a phone interview last week. “This is falling on the backs of municipalities. I don’t think they’ve fully figured out how it’s supposed to work yet.”

Darcy said that he is concerned that the new mandate will set a precedent when it comes to those accused of other crimes.

“Once the precedent has been set, the court can make this the new procedure going forward,” Darcy said. “That’s our concern. I’ve posed the question as to
why, if superior court has public defenders all the time, why do this? This doesn’t seem to make sense to drag out municipal defenders. There may be a better way to deal with this, so we’re asking Judge Grant to reconsider.”

According to Grant, the state will be providing training on pretrial detention procedures to public defenders in the northern, central and southern portions of the state.

“These are not new cases,” Grant said. “The obligation has not changed. We asked assignment judges in each county to come up with the best strategy or plan with regards to addressing the issues.”

Regarding the letter put forth by the NJLM, Grant said, “There appears to be some misconstruing of the obligation.”

In a Feb. 15 letter to Grant, Darcy asked that the issue be reconsidered.
“We ask you to direct the county assignment judges to relieve local public defenders, and local property taxpayers, of this unprecedented policy,” Darcy said.