The New Jersey Supreme Court majority continued in relevant part: Pretrial Services officers are required to conduct an individualized risk assessment for each eligible defendant to make a recommendation to the court. State v. Robinson, 229 N.J. 44, 56 (2017) (citing N.J.S.A. 2A:162-25(b)). To that end, the Act directed that an objective risk assessment instrument be 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.” N.J.S.A. 2A:162-26(c)(1).
The risk assessment instrument considers nine factors that also relate to a defendant’s behavior, history, and characteristics. See Robinson, 229 N.J. at 62. With those objective details and other relevant information, Pretrial Services prepares a PSA that assesses a defendant’s level of risk for failure to appear and for new criminal activity. The PSA also recommends whether to release a defendant, and if so, what conditions of release to impose.
To determine whether the CJRA authorizes judges to detain defendants who face possible removal, the Court begins with the Act’s plain language, which provides for detention when no combination of conditions “would reasonably assure the eligible defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1) (emphasis added). The CJRA does not specifically address whether or how judges may consider the intervention of immigration officials, but its text is revealing in other ways.
“Appearance” commonly involves action. A defendant’s “appearance in court” thus commonly refers to the voluntary act of showing up. Reading the term in the context of the Act reinforces that “appearance” implies a voluntary act by the defendant. First, the other two grounds for detention set forth in N.J.S.A. 2A:162-18(a)(1) — the risk the defendant might harm someone or obstruct justice — plainly refer to a defendant’s voluntary behavior, permitting the inference that “appearance” likewise refers to a defendant’s voluntary act. Second, the risk assessment tool and the statutory factors in N.J.S.A. 2A:162-20 focus on the behavior, characteristics, and history of each defendant. Third, N.J.S.A. 2A:162-20(c)(1) invites judges deciding whether to detain a defendant pretrial to consider a defendant’s “record concerning appearance at court proceedings.” That relates directly to a defendant’s prior voluntary conduct and sheds light on the meaning of the words in section 18, as well as the Legislature’s intent.
The defense did a good job putting the plain language of the CJRA into context. If our courts were to adopt the State’s position, undocumented immigrants charged with relatively minor offenses could be held in our county jails for years under circumstances in which U.S. citizens would be released on a summons.
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