“The third category also applies to cases where the automated pretrial risk-assessment results in a high Failure to Appear (FTA) or New Criminal Activity (NCA) score, see note 9 and subsection 7.4.2, or if a New Violent Criminal Activity (NVCA) flag is raised, see subsection 7.4.5, or where the pretrial risk-assessment process results in a moderate risk of Failure to Appear or New Criminal Activity and the defendant has a violent juvenile history. See subsection 7.4.3. This third category also includes cases where the current charge is serious and was committed while defendant was on pretrial release for another offense or was subject to any form of post-conviction monitoring. See subsection 7.4.4. Note that because the risk indicators addressed in the third category are closely related and overlap, a particular case may fall under two or more subsections within this third category.
Note that in addition to establishing substantive standards and criteria to guide the exercise of prosecutorial discretion in deciding when to seek pretrial detention, this Directive establishes procedural safeguards to ensure consistency and uniformity. Certain decisions must be approved by the County Prosecutor or First Assistant Prosecutor, or by the Director of the Division of Criminal Justice or a Deputy Director in cases prosecuted by the Division, while certain other decisions may be made by other supervisory assistant prosecutors/deputy attorneys general designated by the County Prosecutor or Director. Specifically, County Prosecutor/First Assistant/Director/Deputy Director approval is required before a pretrial detention motion may be filed unless the Bail Reform Law creates a presumption of detention (i.e., where the defendant is charged with murder or is subject to an ordinary or extended term of life imprisonment), or unless this Directive establishes a rebuttable presumption of seeking pretrial detention. See Section 7.4. In addition, County Prosecutor/First Assistant/Director/Deputy Director approval is required if the decision is to refrain from seeking pretrial detention in a case where the defendant is charged with murder or is subject to an ordinary or extended term of life imprisonment. See Section 7.3. The approval of a designated supervisor is sufficient when the decision is made to seek pretrial detention, or refrain from seeking detention, in a case where this Directive establishes a rebuttable presumption of filing a pretrial detention motion. See Section 7.4. See also Section 7.8. (designation of supervisors).”
Also of great concern is the fact that pretrial detention decisions will be triggered by a new accusation being filed against a suspect that has a single, unproven accusation pending against them. Since the probable cause standard for a new charge is very low, especially at the time of the initial ex parte, the new law lends itself to allowing law enforcement to trigger pretrial detention with a simple accusation in cases where they do not agree with the decision to release the accused on bail on the initial charge.
