In re Request To Release Certain Pretrial Detainees, 021121 NJSC, M-550-20

Docket NºM-550-20
Opinion JudgeRABNER, CHIEF JUSTICE.
Party NameIn the Matter of the Request to Release Certain Pretrial Detainees
AttorneyJoseph E. Krakora, Public Defender, argued the cause for the Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Joseph E. Krakora, Joseph J. Russo, Assistant Public Defender, Alison Perrone, First Assistant Deputy Public Defender, Laura B. Lasota, Assistant Deputy Public...
Judge PanelRABNER, C.J. JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER's opinion. JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER's opinion.
Case DateFebruary 11, 2021
CourtSupreme Court of New Jersey

In the Matter of the Request to Release Certain Pretrial Detainees

No. M-550-20

Supreme Court of New Jersey

February 11, 2021

Argued January 20, 2021

On an Order to Show Cause to Address the Release of Certain Individuals Detained Pretrial, Among Other Relief Requested.

Joseph E. Krakora, Public Defender, argued the cause for the Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Joseph E. Krakora, Joseph J. Russo, Assistant Public Defender, Alison Perrone, First Assistant Deputy Public Defender, Laura B. Lasota, Assistant Deputy Public Defender, and Elizabeth C. Jarit, Assistant Deputy Public Defender, on the briefs).

Alexander Shalom argued the cause for the American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the briefs).

Claudia Joy Demitro, Deputy Attorney General, argued the cause for the Attorney General of New Jersey, (Gurbir S. Grewal, Attorney General, attorney; Carol M. Henderson, Assistant Attorney General, of counsel and on the brief, and Claudia Joy Demitro, Jennifer E. Kmieciak, Deputy Attorney General, and Mercedes N. Robertson, Deputy Attorney General, of counsel and on the brief).

Anthony J. Robinson, First Assistant Warren County Prosecutor, argued the cause for the County Prosecutors Association of New Jersey (Esther Suarez, President, County Prosecutors Association of New Jersey, attorney; Anthony J. Robinson, John McNamara, Jr., Special Deputy Attorney General/Acting Chief Assistant Morris County Prosecutor, Paul H. Heinzel, Assistant Somerset County Prosecutor, and Jessica Marshall, Special Deputy Attorney General/Assistant Morris County Prosecutor, on the brief).

RABNER, C.J., writing for the Court.

This Order to Show Cause raises questions about the impact of the COVID-19 pandemic and the suspension of in-person criminal jury trials on defendants who have been detained pretrial.

Under the Criminal Justice Reform Act (CJRA or Act), defendants who pose a serious risk of non-appearance, danger, or obstruction can be detained before trial if no combination of conditions of release will reasonably guard against those risks. Because criminal jury trials remain suspended, the length of pretrial detention has been extended in many cases.

In response to the present situation, the Office of the Public Defender and the American Civil Liberties Union of New Jersey jointly seek two forms of relief: (1) the release of all defendants detained for six months or longer whose most serious charge is a second-degree offense or lower, with an opportunity for the State to object in individual cases and seek to justify continued detention under an enhanced burden of proof; and (2) new detention hearings for all defendants detained for six months or longer who are charged with a first-degree offense and entitled to a presumption of release. Movants rely on constitutional and statutory bases in support of their requests for relief.

Due process concerns can impose limits on pretrial detention. Courts look to various considerations to assess that type of due process challenge, not just the length of detention. The fact-specific inquiry called for is best conducted on an individual basis in order to balance the relevant factors and assess the level of risk each defendant presents. By contrast, broad-based relief for large categories of defendants could sweep in cases in which release from detention would not be appropriate.

The Court declines to grant relief on a categorical basis for other reasons as well. Movants argue that prolonged detention before trial could raise serious due process concerns, but they do not contend the statutory scheme is unconstitutional at this time. As a result, the doctrine of judicial surgery, which is designed to save an otherwise unconstitutional statute, is not available. Nor can the Court exercise its rulemaking authority to amend the substance of the Act.

HELD: *Section 19(f) of the CJRA offers a path for potential relief under the present circumstances. Under that provision, N.J.S.A. 2A:162-19(f), individual defendants can apply to reopen detention hearings if they can present information that was not known at the time of the initial hearing and that "has a material bearing" on the release decision.

*The unexpected duration of the pandemic coupled with the continued suspension of jury trials, with no clear end date for either, constitutes new information within the meaning of N.J.S.A. 2A:162-19(f). Materiality presents a separate issue and depends on a defendant's individual circumstances. To assess whether delays caused by the pandemic are material to the level of risk a defendant poses, trial judges can consider the following factors: (1) the length of detention to date as well as the projected length of ongoing detention; (2) whether a defendant has been or will be in detention longer than the likely amount of time the person would actually spend in jail if convicted; (3) the existence and nature of a plea offer; (4) a defendant's particularized health risks, if any, and whether they present a heightened risk the individual will contract COVID-19; and (5) other factors relevant to pretrial detention that are outlined in N.J.S.A. 2A:162-20.

*Defendants who have been detained for at least six months, and can make a preliminary showing that they are entitled to relief based on one or more of the above factors, have the right to reopen their detention hearings under section 19(f). Trial judges have discretion to resolve motions that do not meet both conditions without holding a hearing. Hearings should be conducted on an expedited basis in the trial court, and reviewed in the same manner on appeal. Defendants subject to a presumption of detention -- those charged with murder or facing a sentence of life imprisonment -- will likely not be eligible for new hearings.

1. Movants concede the CJRA is constitutional but argue that continued detention raises potentially serious due process concerns. The pretrial detention process is constitutional so long as it serves regulatory rather than punitive purposes. But if pretrial detention under a regulatory scheme is significantly prolonged, a defendant's confinement may become punitive. Whether the length of detention violates due process in that way requires assessment on a case-by-case basis; due process is a flexible concept that does not necessarily set a bright line limit for length of pretrial confinement. (pp. 10-11)

2. The CJRA contains various time limits designed to move cases toward trial. The Court does not find that the pandemic, along with the accompanying suspension of in-person criminal jury trials, has transformed the CJRA's overall approach to pretrial detention into a punitive scheme. Yet individual cases, which are not the subject of the Order to Show Cause, can be subject to challenge on due process grounds. The length of detention alone is not dispositive. A more comprehensive, fact-specific inquiry in each case is needed, and relief tied only to the length of detention for large categories of defendants would not be appropriate for a variety of reasons. Cases are best examined on an individual basis, which the CJRA provides for under the present circumstances. The constitutional remedies movants propose -- judicial surgery and the Court's rulemaking authority -- are thus not well-suited for the current circumstances. (pp. 12-17)

3. N.J.S.A. 2A:162-19(f) presents a path for individual defendants to argue against continued detention when (1) there is new information, or a change in circumstances, (2) that is material to the release decision. As to the first prong, the Court has found "that the worldwide pandemic that has afflicted New Jersey and its prison system amounts to a change in circumstances" within the meaning of Rule 3:21-10(b)(2). In re Request to Modify Prison Sentences, 242 N.J. 357, 379 (2020). That finding logically extends to section 19(f). Section 19(f)'s second prong -- materiality -- will vary by defendant and turn on the particular facts of each case. The critical question at a hearing that is reopened is not whether the initial detention decision was correct, but whether the circumstances at the time of the later hearing warrant continued detention. That issue calls for a renewed examination of whether any combination of conditions would reasonably assure against the risk of non-appearance, danger, or obstruction in light of delays caused by the pandemic. N.J.S.A. 2A:162-18, -19(f). (pp. 17-20)

4. The Court explains in detail the five factors courts can consider to assess those risks. Noting it is far less likely courts would find material changes in the case of defendants detained for less than six months, the Court holds that defendants have the right to reopen detention hearings under N.J.S.A. 2A:162-19(f) if they (1) have been detained for at least six months and (2) can make a preliminary showing that, based on one or more of the five factors, they are entitled to relief. (Because disorderly persons offenses are punishable by up to six months in jail, judges have discretion to entertain and review motions from defendants charged only with such an offense before those defendants have been detained for six months.) Those threshold requirements are meant to limit hearings to defendants who are better able to show a material change in the level of risk they present, in the context of the pandemic and the delays it has caused. Trial judges have discretion to resolve motions that do not meet both conditions without holding a hearing. (pp. 20-25)

5. New hearings may proceed before the same judge who conducted the original hearing or another judge in...

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