AG Modifications To CJ Reform Policies: Part 4

A related new section addressing Domestic Violence offenses reads:

4.5.1 b Ontario Domestic Assault Risk Assessment Score of 3 or Higher

In domestic violence cases that require completion of the ODARA, a law enforcement agency shall apply for a complaint-warrant when a defendant’s final score (i.e., after any proration) is 3 or higher—regardless of the PSA scores—unless an assistant prosecutor or deputy attorney general consulted in accordance with Section 3.2 of this Directive, or a supervisory officer who is authorized by the County Prosecutor to overcome presumptions under Section 4 of this Directive, determines that the presumption of charging by complaint-warrant is overcome pursuant to subsection 4.5.9. In domestic violence cases, the ODARA scores are to be considered in conjunction with and not in lieu of the PSA scores. As such, either assessment tool or both assessment tools could trigger a presumption to apply for a complaint-warrant. Likewise, there will be cases in which neither tool will trigger a presumption.

Note that a “domestic violence offense” can include the petty disorderly persons offense of “harassment”. Harassment often involves nothing more than offensive communications or communications made at inconvenient times. Thus, a triggering “domestic violence” offense could have nothing to do with “violence” in the commonly-understood sense of the word. The same is true regarding restraining orders and the predicate “domestic violence” offense.

Consistent with the Attorney General’s amended position and desire to implement pretrial detention for more defendants charged even with petty “domestic violence” offenses, the following section was removed from the Directive regarding criminal justice reform:

4.6.1 Impact of Mandatory Incarceration on Domestic Violence Victims. In cases involving domestic violence, the police officer making the arrest and/or an assistant prosecutor or deputy attorney general consulted in accordance with Section 3.2 of this Directive, or a supervisory officer designated pursuant to subsection 3.3.2, shall consider whether the mandatory detention resulting automatically from issuance of a complaint-warrant might exacerbate the domestic violence situation, might discourage a victim from pursuing the charge or cooperating with the prosecution, or otherwise would not serve the interest of justice. Given the repetitive nature of domestic violence offenses, the officer and/or assistant prosecutor or deputy attorney general also may consider whether it would be appropriate to apply for a complaint-warrant in recognition that if the defendant is charged by complaint-summons and thereafter commits a new crime while on pretrial release, the prosecutor cannot move pursuant to N.J.S.A. 2A:162-24 to revoke release. See subsections 4.5.2 and 8.4.3. Cf. note 30.