In the United States, people are innocent until proven guilty. That means if you ever get arrested, you deserve a fair trial. You shouldn’t have to pay steep fines or endure lengthy prison stays unless a jury finds you guilty.

However, that’s not always how things work. The wheels of justice are always turning, but they don’t always spin at high speed. The result is that many people may spend days, weeks or months in jail before they can even defend themselves in court.


New Jersey’s old cash bail system for pre-trial release was flawed. It was functionally biased and often led to the detention of low-risk, poor suspects, even as it allowed dangerous, high-risk, wealthy suspects to leave the jails and commit additional crimes. Accordingly, the system was replaced in 2017 by one that awarded pretrial release based on a set of risk factors, including:

  • The suspect’s age
  • Any prior history of arrests or convictions
  • Prior sentences
  • Prior failures to show for court hearings

These factors are rooted in studies that speak to their effectiveness. Judges look at them in two ways. They examine the risk that the suspect won’t show for the hearing, and they see how likely the suspect is to commit additional crimes.

However, the data don’t always tell the whole story. People aren’t simply collections of ages, facts and past events. That’s why the courts allow suspects to bring defense attorneys to argue in their favor. Defense attorneys may argue that a higher score doesn’t tell the suspect’s full story. Or they may argue that a suspect’s low score doesn’t just suggest he or she should go free until trial but should also leave prison under a low level of supervision.


If you are arrested, the judge at your pretrial detention hearing will determine whether you can leave jail until your next court appearance or if you must stay in prison. Additionally, the judge will decide how closely to observe you. The various levels include:

  • ROR—no pretrial observation
  • PML 1 – monthly phone reporting
  • PML 2 – monthly in-person and phone reporting, plus monitoring conditions such as curfew
  • PML 3 – weekly in-person and/or phone reports, plus monitoring conditions
  • PML 3 plus electronic monitoring or home detention – as PML 3, plus GPS monitoring or confinement to the home

In other words, it’s not just the suspect’s freedom that’s at stake; it’s the level of that freedom. And if you don’t think this is an important part of fighting for your freedom, consider the fact that, in 2002, 29% of all people in jail were sitting in pretrial detention. The numbers aren’t as clear since 2002, but recent estimates suggest that pretrial detentions may account for nearly two-thirds of the current prison population.

Pretrial freedom is good for its own sake, but it’s also important for the long run. Studies have shown that people kept in jail ahead of trial are more likely to suffer in other ways. They are more likely to:

  • Plead guilty
  • Get convicted
  • Go to jail
  • Receive harsher prison sentences

Added to these facts is the fact that Black and brown suspects face systemic bias. They receive more than their share of pretrial detention. More than most, they want their defense attorneys to help them overcome their barriers to justice.


It’s easy to think that justice is all about the trial. Will you walk free or go to jail? But the truth is that the justice system is far more complex and onerous than most may know. The first 48 hours after an arrest are critical, and you want to understand your rights and your options. If you aren’t immediately sent home, you likely want to give your attorney time to review and represent your case at your pretrial detention hearing.

Call the Law Offices Of Michael P. McGuire LLC, at 732-704-7331 for a free consultation. Se habla español.