The New Jersey Supreme Court continued in relevant part: Movants rely on constitutional and statutory bases in support of their requests for relief. Due process concerns can impose limits on pretrial detention. Courts look to various considerations to assess that type of due process challenge, not just the length of detention. The fact-specific inquiry called for is best conducted on an individual basis in order to balance the relevant factors and assess the level of risk each defendant presents. By contrast, broad-based relief for large categories of defendants could sweep in cases in which release from detention would not be appropriate. The Court declines to grant relief on a categorical basis for other reasons as well.
Movants argue that prolonged detention before trial could raise serious due process concerns, but they do not contend the statutory scheme is unconstitutional at this time. As a result, the doctrine of judicial surgery, which is designed to save an otherwise unconstitutional statute, is not available. Nor can the Court exercise its rulemaking authority to amend the substance of the Act.
*Section 19(f) of the CJRA offers a path for potential relief under the present circumstances. Under that provision, N.J.S.A. 2A:162-19(f), individual defendants can apply to reopen detention hearings if they can present information that was not known at the time of the initial hearing and that “has a material bearing” on the release decision. *The unexpected duration of the pandemic coupled with the continued suspension of jury trials, with no clear end date for either, constitutes new information within the meaning of N.J.S.A. 2A:162-19(f).
Materiality presents a separate issue and depends on a defendant’s individual circumstances. To assess whether delays caused by the pandemic are material to the level of risk a defendant poses, trial judges can consider the following factors: (1) the length of detention to date as well as the projected length of ongoing detention; (2) whether a defendant has been or will be in detention longer than the likely amount of time the person would actually spend in jail if convicted; (3) the existence and nature of a plea offer; (4) a defendant’s particularized health risks, if any, and whether they present a heightened risk the individual will contract COVID-19; and (5) other factors relevant to pretrial detention that are outlined in N.J.S.A. 2A:162-20.
Our courts are likely to see a flood of virtual detention hearings conducted by video as a result of this decision. Arguments at those hearings will focus on what constitutes a “material” change of circumstance.