Bail Reform: Released vs Detained

“In any case where there is probable cause to believe the defendant has committed any indictable crime, disorderly persons offense, or petty disorderly offense and the case is not otherwise covered under Section 4.4 (mandatory charging by complaint-warrant) or Section 4.5 (presumption of charging by complaint-warrant), a law enforcement agency shall issue a complaint-summons unless 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 and authorized by the County Prosecutor to overcome presumptions under Section 4 of this Directive, determines that application for a complaint-warrant is reasonably necessary to protect the safety of a victim or the community, to reasonably assure the defendant’s appearance in court when required, or to prevent the defendant from obstructing or attempting to obstruct the criminal justice process, and further determines that there is a lawful basis to apply for a complaint-warrant pursuant to Rule 3:3-1(d) as recently amended.  It is anticipated that the decision to overcome the presumption of charging by complaint-summons established in this subsection will not be overcome when the most serious charge is a petty disorderly persons offense absent extraordinary circumstances suggesting a high risk that the defendant, if released, would commit a new offense, fail to appear in court when required, or obstruct or attempt to obstruct justice.

Rule 3:3-1(d), as recently amended, authorizes a judge to overcome the presumption of charging by complaint­ summons where the judge finds that:

(1)    the defendant has been served with a summons for any prior indictable offense and has failed to appear;

(2)    there is reason to believe that the defendant is dangerous to self, or will pose a danger to the safety of any other person or the community if released on a summons;

(3)    there are one or more outstanding warrants for the defendant;

(4)    the defendant’s identity or  address is not known and a warrant is necessary to  subject the defendant to the  jurisdiction of the court;

(5)    there is reason to believe that the defendant will obstruct or attempt to obstruct the criminal  justice process if released on a summons;

(6)    there is reason to believe that the defendant will not appear in response to a summons; or

(7)    there is reason to believe that the monitoring of pretrial release conditions by the pretrial services program established pursuant to N .J.S.A. 2A:162-25 is necessary to protect any victim, witness, other specified person, or the community .

The Part VII rules governing municipal court practice, which would apply to disorderly persons offenses heard in municipal court, include comparable provisions. Specifically, Rule 7:2-2(e), as recently amended, authorizes a judge or other judicial officer to overcome the presumption of charging by complaint-summons after considering the following factors:

(1)    the defendant  has been served with a summon s for any prior indictable offense and has failed to appear;

(2)    there is reason to believe that the defendant is dangerous to self  or will pose a danger to the safety of any other person or the community if released on a summons;

(3)    there is one or more outstanding warrants for the defendant;

(4)    the defendant’s identity or address is not known and a warrant is necessary to subject the defendant to the jurisdiction of the court;

(5) there is reason to believe that the defendant will obstruct or attempt to obstruct the criminal justice process if released on a summons;

(6) there is reason to believe that the defendant will not appear in response to a summons;

(7) there is reason to believe that the monitoring of pretrial release conditions by the pretrial services program established pursuant to N.J.S.A.2A: 162-25 is necessary to protect any victim, witness, other specified person, or the community.

Rule 3:3-l (e), as recently amended, requires that the defendant be charged by complaint-warrant “where the defendant has been extradited from another state for the current charge.”

It is fundamentally unfair to create what is supposed be an objective risk-based system to determine whether or not arrestees can be released or detained for an extended period on a complaint warrant while at the same time maintaining the discretion to detain on a complaint-warrant when the automated risk assessment produces a result that is at odds with law enforcements subjective desire to detain. Similarly, it is fundamentally unfair for law enforcement to gain the advantage of what was previously an unconstitutional pretrial detention with the understanding that the new system would be objective and fair, while maintaining the ability to employ their subjective desires. It is probably not an accident that this provision is buried in the middle of an 84 page document (at page 33).