Pretrial Detention in New Jersey

Prior to Jan. 1, 2017, every defendant had a constitutional right to pre-conviction bail.  During that time, judges would set a money bail amount for each pending case a defendant had.  The individual could post bail in the form of cash or bond, and if they were unable to pay it, would wait in jail for their trial.  The former money bail system is explained in greater detail here.  The Bail Reform and Speedy Trial Act changed this system when it went into effect on Jan. 1, 2017.

The Bail Reform and Speed Trial Act

In 2014, with support from Gov. Chris Christie, state lawmakers began drafting the bill (S946/A1910) that would become the Bail Reform and Speed Trial Act. After years of work from New Jersey legislators, the law went into effect Jan. 1, 2017.  Now, the determination as to whether someone is detained in the County Jail prior to the disposition of their case is handled much differently.

Summons vs. Warrant

Bail Reform now calls for an initial decision to be made on whether to charge a defendant on a Summons or Warrant.  Now, when a law enforcement officer makes an arrest for any indictable crime, or for a disorderly persons offense involving domestic violence, the officer is required to contact a County Prosecutor.  A complaint-summons is commonly referred to as a CDR-1 and a complaint-warrant is commonly referred to as a CDR-2.

The most significant difference between the two (2) charging documents is that when a complaint-warrant is issued the defendant must be taken to the County Jail, where he or she will be held for up to 48 hours.  N.J.S.A. 2A:162-16(a).  During that period of statutorily-mandated confinement, the pretrial services program has an opportunity to prepare a recommendation to the court as to appropriate conditions of pretrial release and the level of monitoring the court should impose at the time of the defendant’s first appearance.

Summons vs. Warrant Charging Decision

The determination as to whether a charge is issued on a complaint or a warrant is crucial to any defendant being charged.  As to warrants, there are mandatory warrant charges and presumptive warrant charges.  Except in cases involving specified serious charges that must be charged by complaint-warrant as required by Rule 3:3-1(e), the decision whether to issue a complaint-summons or to apply to a court for a complaint-warrant is informed by the results generated by the automated pretrial risk-assessment process approved by the Administrative Director of the Courts pursuant to N.J.S.A. 2A:162-25(c).

Automated Pretrial Risk Assessment Process

The automated pretrial risk-assessment process is initiated by police after the defendant’s fingerprints have been taken by Live Scan at a police station.  A preliminary public safety assessment (“Prelim-PSA”) is made available to police and prosecutors before the complaint-summons versus complaint-warrant decision is made.  If a complaint-warrant is approved by a judge or other judicial officer, the risk assessment process will be completed by the pretrial services program while the defendant is detained for up to 48 hours at the county jail.

The term “automated pretrial risk assessment” generally refers to the preliminary pretrial risk-assessment process done by a computer program administered by the Administrative Office of the Courts and initiated by police before a defendant is transported to a county jail, where the assessment results will be reviewed and may be modified based on additional information input by the pretrial services program.

The automated pretrial risk-assessment process accounts for the general nature of the present offense (e.g., whether it involves violence) and certain electronically-stored criminal case and court history data that documents the defendant’s previous involvement, if any, in the adult criminal justice system. This automated process produces a Public Safety Assessment (PSA) that provides three pretrial risk indicators: a six-point “failure-to-appear” (FTA) scale, a six-point “new criminal activity” (NCA) scale, and a “new violent criminal activity” (NVCA) “flag.” The AOC’s pretrial services program will monitor released defendants to address the risks identified through the PSA.  Thus, while the PSA measures risks, the AOC’s “Decision Making Framework” is designed to manage the identified risks by recommending the appropriate level of release conditions and monitoring.

Mandatory Warrant Cases

Enumerated offenses: There are certain offenses that require criminal charges to be issued on a complaint-warrant.  Pursuant to New Jersey Court Rule 3:3-1(e), a law enforcement agency shall apply for a complaint-warrant if there is probable cause to believe that the defendant committed:

Murder (N.J.S.A. 2C:11-3);

Aggravated manslaughter (N.J.S.A. 2C:11-4(a));

Manslaughter (N.J.S.A. 2C:11-4(b));

Aggravated sexual assault (N.J.S.A. 2C:14-2(a));

Sexual assault (N.J.S.A. 2C:14-2(b) or (c));

Robbery (N.J.S.A. 2C:15-1);

Carjacking (N.J.S.A. 2C:15-2);

Escape (N.J.S.A. 2C:29-5(a)); or

An attempt to commit any of the foregoing crimes.

Extradition cases: In addition, if a defendant has been extradited from another state for the current New Jersey charge, the complaint will be issued on a warrant.

Presumptive Warrant Cases

There are also cases where there is a rebuttable presumption of issuing a complaint-warrant.

Risk Assessment Score: When the Failure to Appear (FTA) or New Criminal Activity (NCA) score determined by the automated risk-assessment process is 4, 5 or 6, or if there is a New Violent Criminal Activity (NVCA) flag there is a presumption that the complaint be issued on a warrant.

Domestic Violence:  When law enforcement has reason to believe that the present offense constitutes a violation of any domestic violence restraining order the complaint there is a presumption that the complaint be issued on a warrant.

Bail Jumping or Witness Tampering:  When law enforcement has reason to believe that the defendant has committed the offense of bail jumping or witness tampering there is a presumption that the complaint be issued on a warrant.

Presently on Release:  If the new offense is charged at a time when the defendant was on release for any other indictable crime, disorderly persons offense or petty disorderly persons offense there is a presumption that the complaint be issued on a warrant.

Enumerated offenses: Pursuant to New Jersey Court Rule 3:3-1(f) if a defendant is charged with any of the following offenses there is a rebuttable presumption of issuing a complaint-warrant:

A violation of Chapter 35 of Title 2C that constitutes a first or second degree crime;

A crime involving the possession or use of a firearm;

Vehicular homicide (N.J.S.A. 2C:11-5);

Aggravated assault that constitutes a second-degree crime (N.J.S.A. 2C:12-1(b));

Disarming a law enforcement officer (N.J.S.A. 2C:12-11);

Kidnapping (N.J.S.A. 2C:13-1);

Aggravated arson (N.J.S.A. 2C:17-1(a));

Burglary that constitutes a second-degree crime (N.J.S.A. 2C:18-2);

Extortion (N.J.S.A. 2C:20-5);

Booby traps in manufacturing or distribution facilities (N.J.S.A. 2C:35-4.1(b));

Strict liability for drug induced deaths (N.J.S.A. 2C:35-9);

Terrorism (N.J.S.A. 2C:38-2);

Producing or possessing chemical weapons, biological agents, or radiological devices

Racketeering (N.J.S.A. 2C:41-2);

Firearms trafficking (N.J.S.A. 2C:39-9(i));

causing or permitting a child to engage in a prohibited sexual act (N.J.S.A. 2C:24-4(b)(3)); or

An “attempt” to commit any of the foregoing crimes.

Pretrial Release

The Bail Reform Law provides that a defendant should be released on the least restrictive conditions necessary to assure his or her appearance at court proceedings and to prevent the defendant from committing new crimes.  N.J.S.A. 2A:162-17.  Under this Directive a defendant need be charged by complaint-warrant only when some release condition or conditions are appropriate to manage the risk of flight, the risk to the safety of the community, witnesses, and victims, and/or the risk that defendant will obstruct the criminal justice process.

Some defendants may be remanded on bail, which means that they may await their trial outside of physical custody. The Bail Reform Law provides direction for remand bail situations, stating that a defendant should be released on the least restrictive conditions necessary to assure his or her appearance at court proceedings and to prevent the defendant from committing new crimes. N.J.S.A. 2A:162-17. Under this directive, a defendant need be charged by complaint-warrant only when some release condition or conditions are appropriate to manage the risk of flight, the risk to the safety of the community, witnesses, and victims, and/or the risk that defendant will obstruct the criminal justice process. The defendant must still pay bail-related costs even if they are remanded on bail.

First Appearance

Anyone charged on a complaint-warrant is required to be taken into custody and transported to the County Jail.  A defendant is entitled to his or her initial appearance within 48 hours, at which time a pretrial release decision must be made.  N.J.S.A. 2A:162-17 provides that a court must make the pretrial release decision “without unnecessary delay, but in no case later than 48 hours after the eligible defendants commitment to jail.”

The goal is 24 hours.  When Bail Reform was implemented, the Administrative Director of the Courts indicated that the Judiciary’s goal is to have the pretrial services program prepare its recommendations as to appropriate release conditions within 24 hours of a defendant being taken to county jail after a complaint-warrant is issued.  Accordingly, the court may schedule a first appearance well before the expiration of the 48-hour statutory deadline.

Release vs. Detention Hearings

At a defendant’s first appearance, the state may request Special Release conditions or make a Motion for Pretrial Detention

Special Release conditions

If the court at the first appearance decides to release the defendant on personal recognizance pursuant to N.J.S.A. 2A:162-17(a), to achieve the benefits of specific deterrence, the assistant prosecutor or deputy attorney general may request the following special release conditions:

Requests for Restraints Concerning New Offenses.

Requests for Restraints Concerning Contact with Victims/Witnesses.

Domestic Violence, SORO, SASPA, and DORD Restraining Orders.

Substance Abuse Intervention and Monitoring.

Electronic Monitoring, House Arrest, Curfews, Restrictions on Personal Associations, and Other Release Conditions.

Detention Hearings

Under the Bail Reform Law, only certain “eligible defendants” as that term is defined in N.J.S.A. 2A:162-15 are subject to pretrial detention.  Specifically, the statute authorizes pretrial detention of eligible defendants (i.e., defendants charged by complaint-warrant) who are charged with an indictable crime or anon-indictable offense involving domestic violence. See N.J.S.A. 2A:162-18(a) and N.J.S.A. 2A:162-19(a).

The Bail Reform Law creates a general presumption against preventive detention except in cases where a defendant is charged with murder or is facing an ordinary or extended term of life imprisonment.  The statutory presumption of pretrial release that applies in all other cases is overcome only when the State establishes by clear and convincing evidence that no release condition or combination of conditions will reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process. See N.J.S.A. 2A:162-19.

The State shall not apply for pretrial detention unless the County Prosecutor determines:

(a) specific facts or circumstances justifying pretrial detention were not adequately accounted for by the automated pretrial risk-assessment process;

(b) the State will be able to present clear and convincing evidence at the detention hearing to overcome the statutory presumption against pretrial detention; and

(c) if defendant were released, even on maximum conditions, there is a serious risk that defendant (i) will not appear in court when required, (ii) will pose a danger to any other person or the community, or (iii) will obstruct or attempt to obstruct the criminal justice process, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.

All motions for pretrial detention are required to be filed electronically through the eCourts system. When the prosecutor files a motion for pretrial detention, the prosecutor is required to specify whether the application is based on the risk that

(1) defendant will not appear in court when required;

(2) defendant will endanger the safety of any other person or the community;

(3) defendant will obstruct or attempt to obstruct the criminal justice process, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror; or

(4) any combination of the foregoing specified risks

Pretrial Detention Factors:

The Bail Reform Law provides a list of broad categories of information that a court may take into account in determining whether to order pretrial detention.  N.J.S.A. 2A:162-20(a) to (f).

N.J.S.A. 2A:162-20 provides that a court, when determining whether to order pretrial detention, may take into account information concerning:

(a) the nature and circumstances of the offense charged;

(b) the weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;

(c) the history and characteristics of the eligible defendant, including:

(1) the eligible defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(2) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;

(d) the nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant’s release, if applicable;

(e) the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant’s release, if applicable; and

(f) the release recommendation of the pretrial services program obtained using a risk assessment instrument under N.J.S.A. 2A:162-25.

Revocation of Pretrial Release

Even if a defendant is not detained pretrial, that release can be revoked for failure to comply with various release requirements.  N.J.S.A. 2A:162-24 authorizes a court on motion of a prosecutor to revoke a defendant’s release and order the defendant detained pending trial when the defendant has been released from custody on a complaint-warrant pursuant to N.J.S.A. 2A:162-17 or -22, and the defendant while on release violated a restraining order or condition of release, or upon a finding of probable cause to believe that the defendant committed a new crime while on release. To order revocation of release, the court must find clear and convincing evidence that no condition of release would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process.

Diligent, Aggressive Defense

If you or someone you know is currently jailed in New Jersey, contact Daniel M. Rosenberg & Associates. No matter how much time you have spent in jail, we can help you protect your rights and make decisions that serve your best interests. Call us today at (609) 216-7400 to get a free consultation on your case.