Is paying money to get out of jail if you’re charged with a crime your right as an American citizen?

Arguments will take place in U.S. District Court in Camden on Tuesday in a class-action lawsuit that aims to force New Jersey to use commercial bail bond companies, claiming the ability to buy one’s way out of jail is a right guaranteed by the U.S. Constitution.

The lawsuit is in response to bail reforms that kicked in at the beginning of this year in New Jersey. The reforms largely do away with bail, and allow judges to use a points formula and their own judgment to determine whether someone poses a risk to commit another crime or flee before a trial takes place.

Advocates say the reforms level the playing field — that the decision over whether a defendant will be released is based on public safety, not how much the defendant can afford to pay.

According to Alexander Shalom, the senior staff attorney with the American Civil Liberties Union of New Jersey, in this case the bail bond industry is arguing the Eighth Amendment to the U.S. constitution "doesn’t simply prohibit excessive bails, but it creates a positive right to bail in every case where you aren’t being detained.” Shalom and the ACLU oppose that position.

The case being heard Tuesday involves a challenge to conditions placed on a criminal defendant, Brittan Holland, who was alleged involved in a bar fight and was then released with the stipulation he could only be at work or at home. Je had to wear a GPS monitor, he had to check in with a pre-trial services officer once a week and he could not have contact with the alleged victim.

The suit, filed by Holland and the Lexington National Insurance Corporation, argues that Holland is presumed innocent "under bedrock principles of American law" — and that "like all innocent people, he is preemptively entitled to liberty from any pre-trial restraint."

It says the "vast majority" of state constitutions, including New Jersey's, have historically allowed defendants the option of bail.

And it says in Holland's case in particular, a judge gave him a "modern-day scarlet letter" when he was ordered to where the monitoring bracelet, with no option through a bail system to avoid one.

“What the bail bond industry is saying is, 'No, no, he should have a right to buy his way out of supervision, to buy a right to not see a pre-trial services officer and to buy a right to avoid GPS monitoring,' and I think that’s counter to common sense and counter to public safety,” Shalom said.

Shalom described this argument as crazy, and said no court has upheld this kind of position.

“This case is about the right of New Jersey and, frankly, other states who are looking to New Jersey as a model, to set a system of pre-trial release that rejects the use of money,” he said.

The intention, he said, is “to set a system that finds that money doesn’t correlate to helping public safety and therefore says we are going to find a better way.”

Shalom describes the bail reform laws that took effect earlier this year as a transformative change.

“What we used to have was a system that made decisions about whether you were in jail or out of jail while waiting for trial based on how thick your wallet was,” he said. “That didn’t make sense because it kept poor people who weren’t a risk to public safety in jail, and it released rich people even if they were a risk to public safety.”

He said the new system takes the resources question out of the equation and instead looks at risk — the risk you won’t show up for your trial, the risk you'll tamper with witnesses, the risk you pose to public safety.

Shalom said bail reform is being challenged by the bail bond industry because it has dramatically hurt its business, but “our courts and frankly our prosecutors have recognized that money bail doesn’t make us safer, money bail has very little correlation to whether people show up in court.”

He also pointed out the bail bond industry has argued the new system presents a dire danger to the community but that has not been the case. Celebrity bounty hunter Dwayne "Dog" Champman made that argument when he recently visited New Jersey 101.5's Bill Spadea, after announcing he'd help sue Gov. Chris Christie over the bail reforms.

Chapman argues the bail reforms put dangerous people back on the street — including Jules Black, a 30-year-old Vineland resident released without bail on a weapons charge just days before he allegedly shot and killed Christian Rodgers.

But, Shalom said, preliminary State Police data for 2017 shows violent crime is down.

Shalom noted it’s not clear how long it will take the court to rule on a request for a preliminary injunction to be issued in the case. That would negate the new bail reform laws while the case was being presented

An email request for comment on the case from Jeff Clayton, the executive director of the American Bail Coalition, was not answered.

You can contact reporter David Matthau at David.Matthau@townsquaremedia.com

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