New Bail Law's Enormous Burden

By Mitchell Ignatoff
New Jersey Law Journal
June 13, 2008

New Jersey's new bail law, designed to learn the source of the money being posted, has troubling implications for defendants.

Before the law was signed by Gov. Jon Corzine on Jan. 4, the accused's family and friends paid a bondsman 10 percent of the bail, the bail was posted and the accused was released from jail. The prosecutor always had a right to ask a judge to hold a hearing as to the source of the bail, but that was rare.

The new law, N.J.S.A. 2A:162-13 and 14, applies to certain crimes, such as murder, manslaughter, sexual assault, drug offenses and eluding the police. It requires the accused to provide a statement under oath about the source of the bail money. That statement must include the accused's employment history, the names and addresses of the people who contributed to the bail, the amount, the nature and timing of the contribution, and the relationship between the accused to the people providing the funds. Bail cannot be approved until the form is completed.

This puts an enormous burden on the accused. For example, often your adult child or friend has no idea where the money comes from; he or she has to rely on others and is forced by this law to swear to the truth of the source of funds. The accused will be held in jail until told by friends or parents where the money came from. This could be quite some time because only an attorney can visit the jail all the time.

More important, the accused must swear to the truth of something of which he or she has no personal knowledge. What if the information provided on the form is wrong? That raises a risk of prosecution for perjury. Moreover, would you want your son, daughter, spouse or friend to sign something under oath that he or she may not know from first-hand knowledge is true? This is even more important because he or she already has been charged with a crime.

And what if information is omitted from his or her job history? What if he or she was fired because of under-age drinking? Or took cash under the table without paying taxes? Is the accused risking prosecution by being forced to tell on himself or herself?? Under the Fifth Amendment, the accused has a right not to say anything. But to get out of jail, he or she must complete the form provided by the prosecutor. This clearly violates the Fifth Amendment right. As an attorney, I would advise my client not to complete the form. But then he or she would be stuck in jail.

The reason for this law is to prevent use of unlawfully obtained money or property for bail. But what is the connection between the accused eluding the police and using unlawfully obtained money to make bail? Or the accused committing sexual assault and using unlawfully obtained money for bail? Perhaps in drug cases there could be some suspicion that the money is from drug sales, but in cases involving eluding? Or sexual assault?

It seems to me that the state should have probable cause to believe that the money used for bail is from unlawful sources before it can go searching by having your child or friend fill out a form. Completing the form is the same as requiring answers to written questions under oath without Miranda warnings or advice of counsel. This is extremely coercive especially because bail cannot be posted until the form is filled out. I have to wonder what they were smoking in Trenton when they passed this law. ¦

Ignatoff, a certified criminal trial attorney, is a solo in Middlesex.