The Court concluded with the following in relevant part: N.J.S.A. 2A:162-19(f) presents a path for individual defendants to argue against continued detention when (1) there is new information, or a change in circumstances, (2) that is material to the release decision. As to the first prong, the Court has found “that the worldwide pandemic that has afflicted New Jersey and its prison system amounts to a change in circumstances” within the meaning of Rule 3:21-10(b)(2). In re Request to Modify Prison Sentences, 242 N.J. 357, 379 (2020). That finding logically extends to section 19(f).
Section 19(f)’s second prong — materiality — will vary by defendant and turn on the particular facts of each case. The critical question at a hearing that is reopened is not whether the initial detention decision was correct, but whether the circumstances at the time of the later hearing warrant continued detention. That issue calls for a renewed examination of whether any combination of conditions would reasonably assure against the risk of non-appearance, danger, or obstruction in light of delays caused by the pandemic. N.J.S.A. 2A:162-18, -19(f).
The Court explains in detail the five factors courts can consider to assess those risks. Noting it is far less likely courts would find material changes in the case of defendants detained for less than six months, the Court holds that defendants have the right to reopen detention hearings under N.J.S.A. 2A:162-19(f) if they (1) have been detained for at least six months and (2) can make a preliminary showing that, based on one or more of the five factors, they are entitled to relief. (Because disorderly persons offenses are punishable by up to six months in jail, judges have discretion to entertain and review motions from defendants charged only with such an offense before those defendants have been detained for six months.) Those threshold requirements are meant to limit hearings to defendants who are better able to show a material change in the level of risk they present, in the context of the pandemic and the delays it has caused. Trial judges have discretion to resolve motions that do not meet both conditions without holding a hearing.
New hearings may proceed before the same judge who conducted the original hearing or another judge in the vicinage. The Court directs that trial judges conduct reopened hearings in appropriate cases on an expedited basis, and that any appeals be reviewed in the same manner. The Court asks the Director of the Administrative Office of the Courts to help implement a timely process at the trial and appellate levels. Movants identify N.J.S.A. 2A:162-21(b) as an alternative statutory basis for relief. The Court explains why it has instead focused on section 19(f).
The most common argument for a material change of circumstances will be that a given defendant has served so much time in jail pretrial that s/he has no motivation to flee or obstruct justice. That is to say, s/he has so many jail credits that s/he is unlikely to receive any more incarceration even if convicted at trial and therefore has no reason to run from the case or obstruct its prosecution. Prosecutors will often counter that s/he still presents a danger to the community. The counter to the counter is that due process still weighs heavily in favor of release and if they presented that great a danger they would have been charged with a more serious offense.