Being arrested is overwhelming. You may not know why you are being detained or when you will be charged. Holding you too long without charging you could even be a violation of your rights.
In fact, if you are not charged within 48 hours of your arrest, you almost always must be released. A person cannot be held indefinitely. If you or a loved one is being held in jail without being charged or without bail, you need to speak with a criminal lawyer right away.
What is Bail?
We need to start here as many people have misconceptions about what bail is, probably from seeing so many police procedural shows on TV that do not realistically portray the process. “Bail” is an amount of money people who have been arrested must pay to be released from jail.
Courts issue these dollar amounts to discourage people from fleeing the area. If you are arrested, pay bail, then do not show up in court, you will be on the hook for the full bail amount, plus many other legal issues.
The other reason for bail is to allow defendants to be free before their trial. This makes it easier for them to work with their legal team to build their case and their defense. It also provides them some comfort being able to sleep in their own bed and spend time with family and friends.
After you are arrested, you will be in police custody before being formally charged with a crime. As discussed above, if you are not charged within a short time period, you most likely will be freed. This does not mean police cannot arrest you again, especially if they get more evidence. Being released simply means that, once released, you will not have to stay in jail.
If you are charged while in jail, you will go before a judge who will review the facts of your case as the prosecution states them. They will make a determination of the bail amount. This amount varies depending on the crime you are charged with, and judges have some discretion based on the individual circumstances of the case. If you are not provided the amount of your bail, your rights may be violated.
Bail Reform and Speedy Trial Act
In 2017, the way bail works in New Jersey changed. The Bail Reform and Speedy Trial Act (Act) eliminated cash bail. For many defendants, cash bail meant they would remain in jail because they could not afford to pay the sometimes-exorbitant amounts.
The Act was intended to help reduce the unnecessarily large prison population and to attempt to only keep people held in jail who were serious offenders. Prosecutors may request a detention hearing to hold a defendant but, in most cases, defendants are released.
Under the Act, defendants must be released or charged within 48 hours of their arrest. If a defendant is detained and charged, they must go to trial within 180 days.
The Act specifies that all defendants, except those facing a crime that holds a penalty of life in prison, are entitled to a presumption of release. This means that, except for the most serious crimes, anyone arrested and charged with a crime is entitled to receive a bail amount that, if they can post, allows them the chance to go home while they await trial.
Here is how it works:
- Police and prosecutors gather evidence. The police will have investigated the crime and provided all their evidence to the prosecutor. It is then up to the prosecutor as to whether they want to request a warrant from a judge. Ultimately, a prosecutor needs to look at the case objectively to determine if there is enough evidence to support a criminal charge.
- A warrant is issued. If the prosecutor believes there is enough evidence, they will take that information to a judge. If the judge agrees, they will issue a warrant for your arrest. In some minor criminal cases, a judge may issue a summons, giving you the chance to appear in court without being arrested. If a warrant is issued, however, the police will try to find you and arrest you.
- You attend first appearance. After you have been arrested, or shown up to court on your own, you will go before a judge or magistrate within 48 hours. If the prosecutor is not charging you with a crime, the judge must release you. This is when the prosecutor will make a motion for detention if they think you should not be released.
- Motion for detention is filed. If the prosecutor files this motion at your first appearance, a subsequent hearing must be scheduled within five business days to determine whether you should be held in jail or if a bail amount will be set.
- The court renders a decision on whether to release you or keep you in jail. There are several outcomes to the hearing on the prosecutor’s motion for detention. You could be released on your own recognizance, which means that the court trusts you to return to court at the next hearing or trial. You could be released into house arrest or some type of monitored release. You could be detained and stay in jail knowing that the prosecutor must charge you within 90 days and your trial must happen within 180.
So: what factors will a court look to when determining if you should be held or released? Courts use several factors, discussed below, to determine if you are a risk to commit a new crime or not show up in court at the next hearing.
- Courts consider your age when you were arrested. The younger you are, the more likely it is that you will be released.
- Courts look at the nature of the crime you are currently charged with or facing. The more serious the crime, the more likely it is that a judge will not release you or will set a high bail.
- Courts review any prior convictions you may have. If you have prior felonies, you can expect to stay in jail or face a high bail. If you have misdemeanor convictions, you may be able to be released, but it will depend on the nature of those crimes.
- Courts look at whether you have prior violent convictions. If you do, it is likely the court will set a high bail or grant a prosecutor’s motion for detention.
- Courts consider whether you have failed to appear in the past. If you have failed to appear to a court hearing in the past two years, courts will not look favorably on this. If you have failed to appear at a court hearing more than two years ago, that will not be good, but it may not be as bad as within the last two years. Courts will also consider the nature of the crimes for which you failed to appear in court.
- Courts will factor the sentence you received in prior convictions as well. They will consider this along with the amount of time between your release from those convictions and the time of your arrest for this new crime. The shorter the time period, the more likely you are to face detention or high bail.
The Freehold Criminal Lawyers at Ellis Law Protect Your Rights
Being held in jail can be a traumatic experience. When you are held without bail, that adds to your anxiety. However, sitting in jail for too long may be a violation of your rights. Speak with the experienced Freehold criminal lawyers at Ellis Law. Contact us today at 732-308-0200 or contact us online to schedule your free consultation with our seasoned team. We proudly serve our neighbors in Freehold, East Brunswick, Toms River, Middletown, Jersey City, Neptune, Hudson County, Union County, Essex County, and Ocean County, as well as Brooklyn and New York, New York.