Thankfully, trends never start in New Jersey.  That’s where they go to die.  But that doesn’t mean that an outrageous and conceptually dangerous new bail law won’t manage to wreak terrible harm across the river from civilization. 

Thanks to a tip from a reader, this New Jersey Law Journal op-ed ($$) exposes how Jersey has turned its already unwieldly bail system on its head:

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.

The starting point is the NJ uses bail bondsmen to post bail with 10% collateral.  This is good for bondsmen, since they make a fee based upon the State’s forced love, but already puts defendants and their families into paying for the privilege of not becoming a guest of the State.

But the State has now shifted another burden, proof of the source of funds, onto the defendant and his family, even in the absence of any evidence to suggest that there is any issue at all. 

There is an understandable, and somewhat reasonable, argument to be made the defendants should not be allowed to use criminal proceeds to free themselves on bail.  From one angle it makes sense, since ill-gotten gains shouldn’t inure to a criminal’s benefit.  The problem, of course, is that the defendant is not yet a criminal, having been convicted of nothing, and his funds cannot yet be deemed criminal proceeds for the same reason. 

In some states, such as New York, prosecutors can make a showing that there is a likelihood that the funds used for bail are tainted, and if the judge is convinced (or just too prosecutorial-minded to question), the burden then shifts to the defendant to show that his bail money is clean.  While the burden on the state is far too low, and shifts far too easily and indeed presumptively when the crime charged involves drugs, the problem is with lax judges and not terribly bad law (just moderately bad law).

But Jersey had to be different.  By law, the burden is on the defendant to prove, without any hint whatsoever, the source of bail funds.  This goes way too far.  These are presumptively innocent people, while the law presumes them guilty by forcing them to prove where there money comes from in the first instance.  Then, it creates a whole new pile of hazards for the defendant, swearing to the truth of matters which a defendant can’t possibly know, and risking perjury in the process, or sitting in jail.

This smells of using bail as an investigative tool to ferret out untaxed income as well as criminal proceeds.  This isn’t the purpose of bail, which is limited to securing the defendant’s attendance at future court proceedings, and uses defendants as pawns in a law enforcement game.  

This new law will prove a very expensive gambit to Jersey, when the taxpayers have to cough up the money to house and feed all those defendants who can’t meet the new rules, not for nefarious reasons but because their friends aren’t inclined to get involves in this new bail process, and defendants, such as children or the mentally ill, can’t lawfully swear to the source of other people’s money.  Even the timing required to obtain the information will mean that defendants who have the legitimate resources to pay bail and complete the affidavit languish in jail until the paperwork can be completed. 

One would have hoped that Jon Corzine, Democratic seat belt criminal and near death survivor, would have been more thoughtful before signing a law like this.   This law is wrong on every level, and for a governor trying to reduce the tax burden on his citizens, this is a fool’s errand.