“The automated pretrial risk-assessment process may not account for all relevant circumstances. For example, it does not account for the fact-sensitive manner in which the present offense was committed that might suggest that the defendant is especially dangerous (e.g., the defendant inflicted more serious harm than that required to establish the elements of the charged crime; a firearms offense was not limited to “simple possession,” but rather involved possession for an unlawful purpose, or involved brandishing or pointing the firearm, thereby creating a heightened risk of violence; the offense was committed against a particularly vulnerable victim; the offense was committed in the presence of children or otherwise posed a heightened risk to children, etc.). Nor does the automated pretrial risk-assessment process account for the strength of the case, which might suggest that the defendant would have greater incentive to avoid a likely conviction by fleeing (e.g., where the offense conduct is captured on an audio/video recording; the defendant confessed to the crime; the offense conduct was personally observed by a police officer; contraband was found on the person of the defendant, etc.)
Furthermore, for purposes of informing the law enforcement decision whether to issue a complaint-summons or apply for a complaint-warrant, the automated pretrial risk-assessment software does not account for a pending charge or conviction from another state, although the computer system administered by the AOC will indicate to law enforcement that out-of-state criminal history information exists with respect to the defendant. See subsection 4.5.8 (explaining how out-of-state charges/convictions should be considered).
Furthermore, as addressed specifically in subsection 4.5.7, the automated pretrial risk assessment process does not account for a defendant’s juvenile justice history, even if the defendant recently was adjudicated delinquent for a serious violent crime. The automated pretrial risk assessment process also does not account for expunged records, even though N.J.S.A. 2C:52-21 was recently amended to explicitly authorize expunged records to be used in conjunction with pretrial release determinations under the Bail Reform Law. Nor does the automated pretrial risk-assessment process account for any specific threat of future harm that a defendant may have made to a victim or witness. The automated pretrial risk-assessment process also does not account for a defendant’s involvement with a violent street gang or other form of organized crime,11 or a defendant’s drug dependence or mental illness.
Finally, there may be instances when relevant criminal history information is not accounted for because of missing data in the databases that the automated pretrial risk-assessment software queries. For the foregoing reasons, the interests of public safety and protection of victims’ rights require police and/or prosecutors to fill in the informational gaps whenever possible, providing information to the court not accounted for by the automated pretrial risk assessment where that additional information suggests that the defendant poses a greater risk of flight and/or new criminal activity or violence than is indicated by the FTA or NCA score or the lack of a violence flag (i.e., the NVCA indicator). (Note that the PSA is not designed to measure the risk that the defendant will obstruct the criminal justice process, although police and prosecutors must consider that risk in determining whether to issue a complaint-summons or apply for a complaint-warrant, and whether to seek special release conditions to manage that risk.) Moreover, the immediate effect of a complaint-warrant is that the pretrial services program will have an opportunity to recommend conditions needed to manage the risks that would be posed by defendant’s release. Issuance of a complaint-summons, in contrast, has the practical effect of precluding imposition of monitored release conditions to manage identified risks.
Accordingly, when making the decision whether to issue a complaint-summons or apply for a complaint-warrant, it is important to consider any relevant facts or circumstances known or reasonably believed to exist that are not accounted for by .the automated pretrial risk-assessment process. In the event that an application is made for a complaint-warrant, the court or other judicial officer to whom the application is made shall be alerted to such additional relevant facts or circumstances.”
It is fundamentally unfair that the Attorney General’s Office would oversee implementation of a system with “missing data in the databases” while at the same time seeking to benefit from the gaps in the system. They are encouraging prosecutors to use the argument that pretrial detention and/or onerous bail conditions should be imposed because although their trusted system may not call for such conditions, the system may not have all of the relevant information. Law enforcement is therefore seeking to benefit from the shortcomings in the system that they chose to employ. Similarly, law enforcement is encouraged to argue for the double counting of aggravating factors, i.e. that bail conditions should be more onerous or that bail should be unavailable for firearms offenses involving more than simple possession, but the potential penalties for those offenses are already more severe and will logically therefore already be weighed against the defendant in the computerized assessment.
