In re Request to Release Certain Pretrial Detainees

• Decision Date: 11 February 2021
• Docket Number: M-550 September Term 2020,085186
• Parties: In the MATTER OF the REQUEST TO RELEASE CERTAIN PRETRIAL DETAINEES
• Court: New Jersey Supreme Court

245 N.J. 218

244 A.3d 760

In the MATTER OF the REQUEST TO RELEASE CERTAIN PRETRIAL DETAINEES

M-550 September Term 2020

085186

Supreme Court of New Jersey.

Argued January 20, 2021

Decided February 11, 2021

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).

CHIEF JUSTICE RABNER delivered the opinion of 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. N.J.S.A. 2A:162-15. According to the Administrative Office of the Courts (AOC), more than 4,900 defendants were detained and awaiting trial in late January 2021. Few criminal jury trials have been held since March 2020, however, because of the health risks that in-person trials pose to jurors, participants, and members of the public with whom they interact. 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 (ACLU) 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 under N.J.S.A. 2A:162-19(f) 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.

We recognize that 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.

We decline to grant relief on a categorical basis for other reasons as well. Movants argue that prolonged detention before trial could render the CJRA punitive, rather than regulatory, and thereby 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, see State v. Natale, 184 N.J. 458, 485-86, 878 A.2d 724 (2005), is not available. Nor can the Court exercise its rulemaking authority to amend the substance of the Act. See N.J. Const. art. VI, § 2, ¶ 3 ; Winberry v. Salisbury, 5 N.J. 240, 247-48, 74 A.2d 406 (1950).

Section 19(f) of the CJRA offers a path for potential relief under the present circumstances. See N.J.S.A. 2A:162-19(f). Under that provision, 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. Ibid.

We hold that 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 the statute. 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). Such 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 under the statute -- those charged with murder or facing a sentence of life imprisonment -- will likely not be eligible for new hearings. See N.J.S.A. 2A:162-19(b).

We therefore grant in part and deny in part the relief sought. Eligible defendants may apply to reopen their detention hearings under section 19(f) at this time.

I.

On December 4, 2020, the Office of the Public Defender and the ACLU jointly applied to this Court to enter an Order to Show Cause. Movants seek two types of relief:

(1) the release of all defendants detained under the CJRA for six months or longer whose most serious charge is a second-degree offense or lower. If the State objected, it would have to demonstrate beyond a reasonable doubt that no conditions would reasonably assure against the serious and imminent risk of non-appearance, danger, or obstruction. Judges or special masters from a county other than where the case is assigned would preside over matters in which an objection is raised; and

(2) new detention hearings under N.J.S.A. 2A:162-19(f) for all defendants detained for six months or longer who are charged with a first-degree offense and entitled to a presumption of release. The Act's clear and convincing evidence standard would apply to the hearings, which judges or special masters from another county would conduct.

Movants thus seek to modify the statute in two ways: requiring judges to find that defendants pose a "serious and imminent" risk; and imposing a higher standard of proof -- "beyond a reasonable doubt" in place of "clear and convincing evidence."

At the core of movants’ application is a simple reality: in-person criminal jury trials have been suspended because of COVID-19, which has led to the continued detention of many pretrial detainees. As of February 8, 2021, according to the AOC, 4,937 detained defendants were being held pretrial on the following categories of offenses: 1,842 on a first-degree offense; 1,780 on a second-degree offense; 1,044 on a third-degree offense; 243 on a fourth-degree offense; and 28 on a disorderly persons offense.¹

As of December 4, 2020, the Office of the Public Defender estimated that about 650 of its clients charged with second-, third-, or fourth-degree crimes had been detained for six months or longer, and that an additional 400 clients charged with first-degree offenses were in the same position.

The Court asked movants to present legal authority in support of their position. Shortly after they submitted written arguments, the Court entered an Order to Show Cause. The Attorney General and the County Prosecutors Association of New Jersey (CPA) submitted briefs in opposition on December 30, 2020.

II.

We note certain basic points at the outset. First, each of the defendants for whom relief is now sought had a court hearing after their arrest, at which counsel represented them. See N.J.S.A. 2A:162-19(d), (e). At the hearings, judges considered a broad array of factors to assess the level of risk each person posed. See id. at -20.

The nature and degree of the charged offenses were only part of that review.

At hearings that involved certain serious charges, a presumption of detention applied, which a number of defendants were unable to rebut. See id. at -19(b) (providing a rebuttable presumption of detention when the court finds probable cause that a defendant committed murder or any crime that exposes the person to life imprisonment).

In the larger group of cases that did not involve a presumption of detention, courts found by clear and convincing evidence that no combination of conditions of release "would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any...