“One of the most critical innovations under-girding the entire reform initiative is that this predictive process henceforth will be informed by an objective pretrial risk-assessment process that has been designed and validated through empirical research. See N.J.S.A. 2A: 162-25(c).”
That statute reads:
“NJSA 2A:162-25 Statewide Pretrial Services Program; risk assessment instrument.
11. a. The Administrative Director of the Courts shall establish and maintain a Statewide Pretrial Services Program which shall provide pretrial services to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.).
b. The Pretrial Services Program shall, after an eligible defendant is temporarily detained pursuant to subsection a. of section 2 of P.L.2014, c.31 (C.2A:162-16) following the issuance of a complaint-warrant, conduct a risk assessment on that eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision, including whether the eligible defendant shall be: released on the eligible defendant’s own personal recognizance or on execution of an unsecured appearance bond; released on a non-monetary condition or conditions as set forth under subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17); released on monetary bail, other than an unsecured appearance bond; released on a combination of monetary bail and non-monetary conditions set forth under section 3 of P.L.2014, c.31 (C.2A:162-17); or any other conditions necessary to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). The risk assessment shall be completed and presented to the court so that the court can, without unnecessary delay, but in no case later than 48 hours after the eligible defendant’s commitment to jail, make a pretrial release decision on the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).
c. The pretrial risk assessment shall be conducted using a risk assessment instrument approved by the Administrative Director of the Courts that meets the requirements of this subsection.
(1) The approved risk assessment instrument shall be objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release. The risk assessment instrument shall not be required to include factors specifically pertaining to the risk for obstructing or attempting to obstruct the criminal justice process.
(2) The approved risk assessment instrument shall gather demographic information about the eligible defendant including, but not limited to, race, ethnicity, gender, financial resources, and socio-economic status. Recommendations for pretrial release shall not be discriminatory based on race, ethnicity, gender, or socio-economic status.
d. In addition to the pretrial risk assessments made pursuant to this section, the Pretrial Services Program shall monitor appropriate eligible defendants released on conditions as ordered by the court.”
The 48 hour maximum cut-off for the decision to be made is disturbing because it allows for an arrestee to be held in the county jail for two full days without the ability to secure their release while pre-trial services conduct their risk assessment. While two days is the maximum period allowed, since court staff and prosecutors are almost never concerned with such a delay for an individual accused of a crime, two full days of being held in the county jail before the conditions of pretrial release are set will probably be the norm. In fact, this writer would not be surprised if three or four days routinely passes on the case of a late Friday night arrest since court staff and prosecutors will almost certainly enjoy be immunity from civil suits unless intentional delay can be proven. Even then, the time and expense involved with civil litigation would probably be not worth the effort since only actual damages like lost wages can be recovered from public officials, as opposed to punitive damages.