The CJRA and Deportation (Part 5)

The Court continued in relevant part: To discern the intent of the Legislature, the Court also considers the meaning of the phrase “appearance in court when required,” N.J.S.A. 2A:162-18(a)(1), in light of the statute’s overall scheme and purpose. At the outset of the CJRA, the Legislature declared the law “shall be liberally construed to effectuate the purpose of primarily relying upon pretrial release by non-monetary means.” N.J.S.A. 2A:162-15. The Act reserves detention for defendants who pose a serious risk of non-appearance, danger, or obstruction. Moreover, the Act empowers judges to implement its framework and decide the question of pretrial release.

The State argues that pretrial detention is justified when a defendant’s risk of removal is certain and imminent. If that were the case, defendants could be detained no matter the nature and circumstances of their eligible offense, the strength of the evidence against them, their record of appearing in court in the past, their ties to and length of residence in the community, their past conduct, or other considerations the Legislature outlined. See N.J.S.A. 2A:162-20. To be clear, here the Court considers individuals who would not otherwise be subject to pretrial detention. Under the State’s argument, which assumes that one can be certain when removal is imminent, the single determining factor would be whether immigration officials appeared likely to succeed in their efforts to remove an individual. Such an approach would effectively cede decisions on pretrial release to an outside agency and remove that authority from judges. Trial judges in those cases would in essence be compelled to enter an order of detention. The CJRA, as written, does not provide for that. In the language, structure, and purpose of the CJRA, the Court finds evidence that the Legislature intended to authorize pretrial detention when there is clear and convincing evidence that individual defendants pose a serious risk of non-appearance based on their own conduct, not the acts of third parties like ICE.

The Legislature could have avoided this litigation by including the words “by their own conduct” in the CJRA statute. On the other hand, there would still likely be future litigation concerning disputes over what constitutes a defendant’s “own conduct.”