To help achieve an appropriate degree of statewide uniformity in the exercise of prosecutorial discretion, this Section establishes a pretrial detention decision-making framework consisting of three categories of cases. For each category, there is rebuttable presumption of whether to seek pretrial detention that serves to channel the exercise of prosecutorial discretion. In addition, this framework specifies the level of authority within a prosecutor ‘s office needed to approve the decision to overcome a presumption. The presumptions on when to seek or refrain from seeking pretrial detention established in this Directive should not be confused with the statutory presumption of pretrial release under the Bail Reform Law, N.J .S.A. 2A:162-17, or the statutory presumption of detention established under the Bail Reform Law when a defendant is charged with murder or is subject to an ordinary or extended term of life imprisonment. See N.J.S.A. 2A:l 62-l 9(b). Although those statutory presumptions are accounted for, this Directive creates additional presumptions to be used by prosecutors in deciding whether to file a pretrial detention and/or revocation of release motion . The presumptions established in Section7 and 8 of this Directive, in other words, are designed only to channel the exercise of prosecutorial discretion in deciding whether to seek pretrial detention or revocation of release, and nothing in this Directive should be construed as suggesting that courts are obliged to apply any presumption other than the ones codified in the Bail Reform Law or in Court Rules that implement the statute and constitutional amendment.
The first category establishes a presumption against filing a motion for pretrial detention, which can be overcome only when the County Prosecutor or First Assistant Prosecutor, or Director or a Deputy Director of the Division of Criminal Justice in matters prosecuted by the Division, finds that certain special conditions exist to justify preventive detention. This first category includes all cases that do not fall under either the second or third categories. It is expected that a large majority of cases will fall under the first category.
The second category deals with especially serious crimes where the State will be expected to seek pretrial detention unless the County Prosecutor or First Assistant Prosecutor, or Director or a Deputy Director of the Division of Criminal Justice in matters prosecuted by the Division, determines that compelling and extraordinary circumstances exist to justify the decision not to seek preventive detention. See Section 7.3. This second category applies to cases where the Legislature has established a presumption that the defendant will be detained; that is, cases where defendants are charged with murder or otherwise are subject to an ordinary or extended term of life imprisonment. See N.J .S.A. 2A: 162- 19(b).
The third category deals with situations where this Directive establishes a more flexible presumption that the State will seek pretrial detention unless a supervisory prosecutor designated by the County Prosecutor or Director of the Division of Criminal Justice finds that maximum conditions of release will adequately control the risks posed by defendant’s release, or where the supervisor otherwise determines that the interests of justice would not be served by pretrial detention. See subsections 7.4.2 and 7.4.3. This third category applies to cases where new Rule 3:4A(b)(5) recognizes a prima facie basis for meeting the clear-and-convincing evidence standard required to order pretrial detention, that is, those cases where the pretrial services program’s recommendation is that the defendant not be released, or if released, only under the maximum level of monitoring. That recommendation by the pretrial services program is based on the results of the objective pretrial risk assessment process approved by the AOC, which, in tum, is based on empirical research.”
The vague language regarding the “interest of justice” and “certain conditions” throws up red flags that even though the new law is supposed to lead to fair and objective bail decisions, law enforcement will still seek to impose their subjective and oftentimes arbitrary will. The Attorney General claims to be ensuring “consistency and uniformity” throughout this provision by calling for decisions to be made only by the highest ranking prosecutors at each office. Then, at the very end, the directive contains language indicating that these decisions can be delegated to other prosecutors.