N.J. rules bail can be set higher for illegal immigrants

NEWARK, N.J. - The New Jersey Supreme Court ruled yesterday that bail can be set higher for illegal immigrants facing deportation to prevent them from dodging prosecution in the state.

The court ruled unanimously that bail can be increased for immigrants who have posted bail but then fall under a detainer by Immigration and Customs Enforcement for likely deportation. The court said the detainer amounts to a change in circumstances that can trigger a new bail hearing.

Morris County Prosecutor Robert Bianchi sought higher bail for suspects facing serious charges and deportation after a Honduran man was deported in 2008 before he could be tried on sexual-assault charges in Morristown.

Bianchi also worried that in a pending case, another Honduran who posted bail on a charge of sexually assaulting a child would be sent back to his country before prosecution.

"I'm very proud of the fact that not only were we vindicated by the Supreme Court, but they looked at our system of doing things as what should be the statewide standard," Bianchi said yesterday. "Everyone wants to make this an immigration issue. It's a bail issue."

A civil-rights group executive disagreed, saying the ruling would create inequities in the judicial system in dealing with illegal immigrants.

"The public policy consequences of this are going to result in a different set of results and treatment for noncitizens in the criminal justice system," said Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild, which has been monitoring similar cases around the country.

But the prosecutor said the ruling would strengthen the system to the benefit of immigrants because the court urged that each case be considered individually. Without such guidelines, Bianchi argued and the court agreed, prosecutors might uniformly set bail higher for all immigrants they fear could be deported.

With the ruling, the Supreme Court also reinstated a $300,000 cash bail for Manuel Fajardo-Santos.

Fajardo-Santos, 30, was charged with sexually assaulting a 9-year-old girl. He posted bail but was released into immigration custody, where he faced deportation. Bianchi asked for the higher bail to ensure that Fajardo-Santos remained in the country to stand trial, but an appeals court rejected his request. The high court overturned that decision yesterday.

Michael Fletcher, a public defender representing Fajardo-Santos, said he did not disagree that an immigration detainer can be a factor in deciding bail. But Fletcher said the reinstatement of the higher bail for his client seemed unfair, because he had already paid to get out of jail but remained in custody.

"He was accused of a crime that he did not commit, and a bail was set on it," Fletcher said. "And he had to work with his family for several months to come up with the funds to get out so that he could defend this charge properly."