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CRIMINAL LAWYER IN BERGEN AND PASSAIC COUNTIES: BAIL FORFEITURE AND THE BAIL REMITTITUR GUIDELINES
(Article 1 of 2)
When a defendant who has been released from jail under a bail recognizance fails to perform a condition of the bail arrangement, the court can require a forfeiture of the bail. Once the court issues an order of forfeiture, the surety (Surety), who is the person or entity that posted the bail, will have seventy-five days to request the court to set the forfeiture aside. Thereafter, all or part of the bail can be returned or remitted to the Surety “in the interest of justice.” The Surety, usually a bail bond company, will have the burden of proving its entitlement to a remittance. The decision to remit the bail and the amount of remission is vested in the trial judge’s “equitable discretion . . . to be exercised in the public interest.”
The factors to be used to determine whether a remittitance should be authorized and the amount of the remittitance was established in 1973 in a case titled State v. Hyers. Those factors are:
(a) whether the applicant is a commercial bondsman; (b) the bondman’s supervision, if any, of defendant during the time of his release; (c) the bondman’s efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the state because of the absence of defendant; (f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.
In 2004, a number of cases were decided by New Jersey’s Appellate Division of the Superior Court that prompted and an administrative agency of the court to create the Bail Remittur Guidelines. (Guidelines). There are two “overarching” policy considerations of the Guidelines. The first is to motivate a Surety to take immediate and active steps to capture a fugitive. The second is to provide some comfort to a Surety to know that, if certain steps are taken, a portion of the forfeited bail money can be returned and, in that way, there will be little or no impairment of an accused’s constitutional right to be free on bail because of a Surety’s reluctance to post bail.
The Guidelines identify three remission schedules. These schedules are influenced by a number of factual considerations, including: (a) the defendant’s continued status as a fugitive; (b) the length of time the defendant remained a fugitive; (c) the defendant’s post-bail criminal activity; (d) the Surety’s pre-forfeiture supervision of the defendant (Supervisory Effort); and (e) the Surety’s post-forfeiture effort to capture the defendant. (Recapture Effort).
Each schedule, save the first, allows for three types of remission viz. “minimum”, “partial”; or, “substantial.” Minimal remission is available for a Surety who provided “minimal or no supervision while the defendant was out on bail and failed to engage in an immediate substantial effort to recapture.” If a Surety provided either “close supervision while the defendant was out on bail but did not engage in immediate substantial efforts to recapture” or “provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant,” partial remission is available. Substantial remission is reserved for instances where a Surety provided “close ongoing supervision” and “made immediate substantial efforts to recapture the defendant.”
In all cases where a remission is made, the government is entitled to obtain a reimbursement of its expenses for the recapture of the defendant from the original amount of the bail.
Remission Schedule I
If the defendant is still a fugitive at the time the remittitur application is filed, a court will ordinarily decline a remittance. One exception to this rule is if the defendant’s failure to appear is based on an out-of-state incarceration.
When a defendant who has been released from jail under a bail recognizance fails to perform a condition of the bail arrangement, the court can require a forfeiture of the bail. Once the court issues an order of forfeiture, the surety (Surety), who is the person or entity that posted the bail, will have seventy-five days to request the court to set the forfeiture aside. Thereafter, all or part of the bail can be returned or remitted to the Surety “in the interest of justice.” The Surety, usually a bail bond company, will have the burden of proving its entitlement to a remittance. The decision to remit the bail and the amount of remission is vested in the trial judge’s “equitable discretion . . . to be exercised in the public interest.”
The factors to be used to determine whether a remittitance should be authorized and the amount of the remittitance was established in 1973 in a case titled State v. Hyers. Those factors are:
(a) whether the applicant is a commercial bondsman; (b) the bondman’s supervision, if any, of defendant during the time of his release; (c) the bondman’s efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the state because of the absence of defendant; (f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.
In 2004, a number of cases were decided by New Jersey’s Appellate Division of the Superior Court that prompted and an administrative agency of the court to create the Bail Remittur Guidelines. (Guidelines). There are two “overarching” policy considerations of the Guidelines. The first is to motivate a Surety to take immediate and active steps to capture a fugitive. The second is to provide some comfort to a Surety to know that, if certain steps are taken, a portion of the forfeited bail money can be returned and, in that way, there will be little or no impairment of an accused’s constitutional right to be free on bail because of a Surety’s reluctance to post bail.
The Guidelines identify three remission schedules. These schedules are influenced by a number of factual considerations, including: (a) the defendant’s continued status as a fugitive; (b) the length of time the defendant remained a fugitive; (c) the defendant’s post-bail criminal activity; (d) the Surety’s pre-forfeiture supervision of the defendant (Supervisory Effort); and (e) the Surety’s post-forfeiture effort to capture the defendant. (Recapture Effort).
Each schedule, save the first, allows for three types of remission viz. “minimum”, “partial”; or, “substantial.” Minimal remission is available for a Surety who provided “minimal or no supervision while the defendant was out on bail and failed to engage in an immediate substantial effort to recapture.” If a Surety provided either “close supervision while the defendant was out on bail but did not engage in immediate substantial efforts to recapture” or “provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant,” partial remission is available. Substantial remission is reserved for instances where a Surety provided “close ongoing supervision” and “made immediate substantial efforts to recapture the defendant.”
In all cases where a remission is made, the government is entitled to obtain a reimbursement of its expenses for the recapture of the defendant from the original amount of the bail.
Remission Schedule I
If the defendant is still a fugitive at the time the remittitur application is filed, a court will ordinarily decline a remittance. One exception to this rule is if the defendant’s failure to appear is based on an out-of-state incarceration.
Frank T. Luciano, Esq., is a trial lawyer in Bergen County, Passaic County, Hudson County and Morris County with over thirty years of experience in the defense of criminal prosecutions with special emphasis in drug crimes and drunk driving (DWI/DUI) offenses.
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