TRENTON — A small but powerful state oversight body is slated to hear arguments Wednesday in a fight over whether New Jersey’s massive bail system overhaul is unconstitutional.
The Council on Local Mandates, which has the power to strike down laws if it determines they don’t meet the New Jersey constitution’s “state mandate, state pay” requirement, is weighing a challenge to the sweeping changes that took effect in January.
The new system virtually eliminated cash bail in the state, replacing it with a risk assessment that helps judges weigh whether a defendant presents a danger to the community or is likely to flee the state.
The fight comes as criminal justice reform advocates are hailing New Jersey as a national model and some local law enforcement agencies are publicly complaining about the release of offenders they argue should have been thrown in jail.
The issue before the council, however, is limited to whether the overhaul has created an unfunded mandate.
The New Jersey Association of Counties claims in court documents the new system creates additional costs without setting up an adequate way to pay for them, giving county governments few options besides raising property taxes.
How much will bail reform cost?
The complaint specifically challenges two new requirements: that risk assessments on those arrested be performed within 48 hours, and that prosecutors work to bring cases to trial more quickly.
But the state Attorney General’s Office, which is fighting the counties’ challenge, argued in court papers that because the overhaul was the result of a constitutional amendment passed by a two-thirds majority New Jersey voters, it gave state lawmakers the power to set up the new system.
It’s unclear how much the reforms will cost taxpayers. Last year, Gov. Chris Christie, one of the bail overhaul’s staunch supporters, ordered Attorney General Christopher Porrino to study and issue a report on how much it would cost county prosecutors and police.
Months later, Porrino’s office found that because the new rules give prosecutors different options for staffing changes and other logistics, it was impossible to give the overhaul a price tag.
The Council on Local Mandates rejected a request from the counties late last year to put the brakes on implementing bail reform while it weighed the constitutional question.
On Wednesday, the council will hear oral arguments during a hearing at the Statehouse Annex in Trenton.
The January bail overhaul created a seismic shift in the state’s court system, and if the council opts to overturn the changes it could present another major disruption. The council is an independent entity and its decisions are not subject to appeal.
Its head, retired judge John A. Sweeney, is appointed by the state Supreme Court and its other members by the governor and various legislative leaders, nearly all of whom have publicly supported the new system.
S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.
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