Bail Reform: “An Administrative Burden”

“Recognizing that administrative burdens are placed on police departments when the charging decision is delayed and police are required to maintain custody of a defendant pending that decision, notwithstanding the provisions of subsection 2.2.2, if either the Live Scan system or the Judiciary ‘s automated PSA system is not operational, or if the results of a preliminary automated pretrial risk­ assessment otherwise are not or will not be available within a reasonable period of time (e.g., within two hours of fingerprinting the defendant), 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, may proceed to make the complaint-summons versus complaint-warrant determination by applying the provisions/presumptions set forth in Section 4 that do not depend on the results of an automated pretrial risk assessment. The determination as to what constitutes a reasonable period of time to delay the charging decision while awaiting the results of the automated pretrial risk-assessment process following Live Scan fingerprinting shall be based on the administrative burdens placed on the department by the delay (e.g., the need to re-assign an officer from patrol/call-for-service duties to stay in the station to monitor the defendant held in custody, the need for the arresting officer to return to patrol duty, etc.). Nothing in this subsection shall be construed to authorize delay to the extent that the defendant is not presented to a judge or other judicial officer within 12 hours of arrest as required by Rule 3:4-1.”

Again, we see more broad language that would permit law enforcement to use their own subjective discretion as opposed to the automated systems that are supposed to apply objective criteria. Here, law enforcement is not even required to wait for a break down in the automated system, but only for the results to “not be available within a reasonable period of time” or for a delay in the results to create “an administrative burden” in maintaining custody of the defendant. It is difficult to imagine how temporarily holding an arrestee in a secure cell within a secure police station would create an undue administrative burden.