The New Jersey Supreme Court majority continued in relevant part: The Legislature did not debate whether decisions by immigration officials could form the basis for pretrial detention. Three strands in the historical record, however, do shed light on the issue, and two of them imply that an order of detention should be based on a defendant’s own behavior. The Court reviews all three strands in detail.
The Court does not rely on case law that interprets the federal Bail Reform Act. The federal act differs from the CJRA in this area in two ways, including by expressly providing for consideration of immigration status. See 18 U.S.C. § 3142(d). The New Jersey Legislature declined to address immigration status in the CJRA despite looking to the federal act as a model. In the end, the issue here is about the interpretation of a state statute. The question is not whether the sovereign had the power to act; it is what the law — as written — actually authorizes.
Another important concern influences the Court’s analysis. A bedrock principle of our system of justice is that individuals charged with a crime are presumed innocent. For like reasons, “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Detention statutes must be narrowly drawn to live up to those basic principles. The Court reviews arguments about the complexities of the removal process and difficulties in predicting the likelihood of deportation, concluding that one thing seems apparent: If the Legislature were to ask judges to consider the likelihood of removal when they decide detention motions, it would be quite challenging to make accurate predictions. Yet judges can order detention only if they find that “clear and convincing evidence” requires that outcome. N.J.S.A. 2A:162-18(a). The legal standard and the realities of immigration proceedings are not easily reconciled.
The Court’s analysis regarding the difficulties in predicting the results of immigration proceedings begs the question of how federal judges make those predictions. Since it is but one factor for federal judges to consider, most are likely to couch their decisions with an emphasis on the other factors.
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