The CJRA and Deportation (Part 3)

Chief Justice Rabner continued in relevant part: One month later, Lopez-Carrera was removed from the United States to Guatemala. The Court considers his appeal nonetheless because it raises an issue of significant public importance that is likely to recur.

The CJRA favors pretrial release over detention; it authorizes judges to detain defendants when the State has shown, by clear and convincing evidence, that no conditions of release would reasonably assure the eligible defendant’s appearance in court when required, would protect the public, or would prevent the defendant from obstructing the criminal justice process. To make that determination, the Act directs judges to conduct an individualized assessment of the level of risk each defendant presents in light of their own conduct, history, and characteristics. The Act does not seek to detain defendants whose behavior poses a minimal level of risk, which describes all three defendants here. Nor does the CJRA cede control over pretrial release decisions to outside agencies. The statute’s primary focus is on a defendant’s behavior and choices, and the risk they present. The language, structure, purpose, and history of the CJRA reveal the Act was designed to address a defendant’s own choice not to appear in court, not independent actions by third parties like ICE.

The Court agrees with the Appellate Division that the CJRA does not authorize judges to detain defendants to thwart their possible removal by ICE. The CJRA favors release with conditions, with detention reserved for defendants who pose a significant risk of non-appearance, danger, or obstruction. N.J.S.A. 2A:162-15, -17, -18. To enable judges to decide whether to release an individual, the CJRA provides for a careful, objective evaluation of the level of risk each defendant presents, taking into account information that relates largely to a defendant’s conduct, history, and characteristics.

The State likely stressed the plain language of the CJRA in support of their position. In particular, the argument can be made that “no conditions of release would reasonably assure the defendant’s appearance” since the federal authorities are going to deport the defendant if he is released from the county jail. Once deported, s/he is very unlikely to appear in court even if they wanted to since they are barred from re-entering the country for the foreseeable future.