“The Bail Reform Law provides a list of broad categories of information that a court may take into account in determining whether to order pretrial detention. See N.J.S.A. 2A:162-20(a) to (t). N.J.S.A.2A: 162-20 provides that a court, when determining whether to order pretrial detention, may take into account information concerning:
(a) the nature and circumstances of the offense charged;
(b) the weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;
(c) the history and characteristics of the eligible defendant, including:
( I ) the eligible defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(2) whether, at the time of the current offense or arrest, the eligible defendant was on probation , parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;
(d) the nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant’s release, if applicable;
(e) nature and seriousness of the risk of obstructing or attempting to obstruct the criminal ju stice process that would be posed by the eligible defendant’s release, if applicable; and
(f) the release recommendation of the pretrial services program obtained using a risk assessment instrument under N.J.S.A. 2A: 162-25.”
It is anticipated that prosecutors will routinely argue that “it is too early to determine” the admissibility of evidence in cases with unlawful searches as our discovery rules do not require full disclosure of the alleged details of a search until indictment. The same goes for “records concerning court appearances” as these records are only sporadically maintained, at least under the current system. Note that listing the “release recommendation” as a separate factor is double counting many of the factors listed above which are also calculated as part of the release recommendation. It is unclear if courts will be free to completely disregard some factors, in their discretion, since the law uses the term “may” consider instead of “shall”. Historic factors like “ties to the community” and “length of residence in the community” should be less relevant in light of electronic monitoring and the other conditions now available to track suspects’ whereabouts.