“If the defendant is charged with murder (N.J.S.A. 2C: l 1-3), or upon conviction of any other charged offense would be eligible for an ordinary or extended term of life imprisonment, the prosecutor shall apply for pretrial detention unless the County Prosecutor or First Assistant Prosecutor, or the Director or a Deputy Director of the Division of Criminal Justice in cases prosecuted by the Division, finds that there are compelling and extraordinary reasons not to seek pretrial detention. In these circumstances, the Bail Reform Law establishes a presumption that the defendant will be detained,
N.J .S.A. 2A:162-19(b), unless the court finds that the presumption ion is rebutted by a preponderance of the evidence. See N.J.S.A. 2A:162-19(e)(2).
In cases not otherwise covered under Section 7.3, unless the presumption of seeking pretrial detention is overcome pursuant to subsection 7.4.6, the prosecutor shall apply for pretrial detention if the present charge is for a first- or second-degree crime and the Failure to Appear (FTA) or New Criminal Activity (NCA) score determined by the automated pretrial risk-assessment process is 5 or 6.” Rule 3:4A(b)(5) provides that a court may consider as prima facie evidence sufficient to overcome the presumption of release a recommendation by the pretrial services program that the defendant’s release is not recommended (i.e., a determination that “release not recommended or if released, maximum conditions”). This recommendation, in tum, is based on the objective pretrial risk-assessment process approved by the AOC.”
The most disturbing, if not Orwellian, provision yet is the so-called objective pretrial assessment lumps together the two distinct categories of “people who should be released on maximum conditions” and “people who should be detained”, thus enabling law enforcement to state that anyone who should presumptively be released on maximum conditions should presumptively be detained. There should clearly be separate categories when dealing with this, the most important distinction that bail reform is supposed to address, i.e. whether to detain or release pretrial. At least, in theory, the defense should be free to argue as the Attorney General does, that “the pretrial assessment does not consider all relevant factors.”
