Contempt and Violations Of Pre-Trial Release (Part 2)

The Appellate Division continued in relevant part: On appeal, the State argues that the term “remedy” includes a criminal contempt charge. The more plausible interpretation, however, is that the term “remedy” includes the actions a court may take to address a defendant’s failure to comply with the conditions of release. Because the court does not have the authority to charge a defendant with a criminal offense, it is not one of the remedies referred to. Nevertheless, the statute does not preclude the State from charging a defendant with contempt for violating a pretrial release order.

Defendants argue, however, that because there is no provision in the CJRA that specifically authorizes a criminal contempt charge, the Legislature intended that the remedies in N.J.S.A. 2A:162-23, including revocation of release, are the only sanctions that may be imposed for a violation of a condition of pretrial release. In support of this argument, defendants rely upon the legislative history of the CJRA. A court may consider such evidence when endeavoring to discern the Legislature’s intent.

Our Supreme Court has noted that “[i]n many respects, the text of the [CJRA] follows the federal Bail Reform Act of 1984 [(BRA)], 18 U.S.C.A. §§ 3141 to 3156, and the District of Columbia’s statutory scheme for pretrial detention, D.C. Code. §§ 23-1321 to -1333.” State v. Robinson (2017). The Court pointed out that one of the sponsors of the legislation stated in a public hearing that “the Legislature looked to both laws among others when it framed New Jersey’s reform measure.” Ibid. (citing Publ. Hearing Before S. Law & Pub. Safety Comm., S. Con. Res. 128 2 (2014)).

The federal BRA and the D.C. Code authorize the filing of criminal contempt charges for certain violations of conditions of pretrial release. See 18 U.S.C. § 3148(a) and (c) (stating that a defendant who has violated a condition of pretrial release “is subject to a revocation of release, an order of detention, and a prosecution for contempt of court”); D.C. Code § 23-1329(a) (providing that a defendant “who has violated a condition of release shall be subject to revocation of release, an order of detention, . . . and prosecution for contempt of court”).

Our Courts have repeatedly looked to the federal Bail Reform Act for guidance in interpreting our own Act. In so doing, they have often overlooked the fact that the federal act is based on the federal constitution as opposed to our state constitution which provides greater rights than the federal. Therefore, looking to the federal bail reform act will almost always favor the prosecution’s position.