S4168

An Act concerning pretrial detention and amending P.L.2014, c.31.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 6 of P.L.2014, c.31 (C.2A:162-20) is amended to read as follows:

6. In determining in a pretrial detention hearing whether no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, the court may take into account information concerning:

a. The nature and circumstances of the offense charged;

b. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;

c. The history and characteristics of the eligible defendant, including:

(1) the eligible defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearances at court proceedings, except with respect to these factors, the court shall not consider manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5, or possession of marijuana or hashish in violation of paragraph (3) of subsection a. of N.J.S.2C:35-10; and

(2) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;

d. The nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant's release, if applicable;

e. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant's release, if applicable; and

f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under section 11 of P.L.2014, c.31 (C.2A:162-25). Pretrial services shall recommend no release when a defendant has been charged with any crime for which the eligible defendant would be subject to a mandatory term of imprisonment pursuant to subsection c. of N.J.S.2C:43-6 for a crime involving the use or possession of a firearm other than a violation of:

(1) subsection a. or d. of N.J.S.2C:39-3;

(2) paragraph (1) or (2) of subsection a. of N.J.S.2C:39-4;

(3) subsection a. of section 1 of P.L. 1998, c.26 (C.2C:39-4.1); or

(4) paragraph (1) of subsection b. or paragraph (1) or (2) of subsection c. of N.J.S.2C:39-5.

g. Pretrial services shall recommend no release of a defendant who has been extradited to this State from another jurisdiction if the court finds that, at the time of the extradition, the defendant was located in the other jurisdiction in order to avoid prosecution for a crime committed in this State or service of a criminal sentence imposed by a court of this State.

(cf: P.L.2022, c.43, s.2)

2. Section 10 of P.L.2014, c.31 (C.2A:162-24) is amended to read as follows:

10. a. [Upon] Except as otherwise provided in this section, upon motion of a prosecutor , when an eligible defendant is released from custody before trial pursuant to section 3 or 8 of P.L.2014, c.31 (C.2A:162-17 or C.2A:162-22), the court[,] :

(1) upon a finding that the eligible defendant while on release has violated a restraining order or condition of release, shall revoke the eligible defendant's release and order that the eligible defendant be detained pending trial:

(1) for a period of not less than 30 days for a first violation;

(2) for a period of not less than 60 days for a second violation;

(3) for a period of not less than 120 days for a third violation;

(4) pending the final disposition of the matter for a fourth violation; and

(2) [or] upon a finding of probable cause to believe that the eligible defendant has committed a new crime while on release, [may not] shall revoke the eligible defendant's release and order that the eligible defendant be detained pending trial unless the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the [violation or] criminal act committed, finds clear and convincing evidence that [no] monetary bail, non-monetary conditions of release, or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

b. A court shall not revoke an eligible defendant's release and order that the eligible defendant be detained pending trial based on manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5, or possession of marijuana or hashish in violation of paragraph (3) of subsection a. of N.J.S.2C:35-10.

(cf: P.L.2021, c.19, s.9)

3. Section 11 of P.L.2014, c.31 (C.2A:162-25) is amended to read as follows:

11. a. The Administrative Director of the Courts shall establish and maintain a Statewide Pretrial Services Program which shall provide pretrial services to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.).

b. The Pretrial Services Program shall, after an eligible defendant is temporarily detained pursuant to subsection a. of section 2 of P.L.2014, c.31 (C.2A:162-16) following the issuance of a complaint-warrant, conduct a risk assessment on that eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision, including whether the eligible defendant shall be: released on the eligible defendant's own personal recognizance or on execution of an unsecured appearance bond; released on a non-monetary condition or conditions as set forth under subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17); released on monetary bail, other than an unsecured appearance bond; released on a combination of monetary bail and non-monetary conditions set forth under section 3 of P.L.2014, c.31 (C.2A:162-17); or any other conditions necessary to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). The risk assessment shall be completed and presented to the court so that the court can, without unnecessary delay, but in no case later than 48 hours after the eligible defendant's commitment to jail, make a pretrial release decision on the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).

c. The pretrial risk assessment shall be conducted using a risk assessment instrument approved by the Administrative Director of the Courts that meets the requirements of this subsection.

(1) (a) The approved risk assessment instrument shall be objective, standardized, and 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. Under the approved risk assessment, a defendant’s lack of significant ties to the State shall weigh in favor of pretrial detention. In evaluating whether a defendant has significant ties to the State, the Pretrial Services Program shall consider:

i. the location of the defendant's family;

ii. the length of time the defendant at any time was physically present in the State and the duration of any absence;

iii. the location of the defendant's property; and

iv. the extent to which the defendant has ties to the State such as voting registration, State or local tax return filing, vehicle registration, driver's license, social relationships, and receipt of services.

The risk assessment instrument shall not be required to include factors specifically pertaining to the risk for obstructing or attempting to obstruct the criminal justice process.

(b) The approved risk assessment instrument shall consider any prior charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty. However, the approved risk assessment instrument shall not consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on a violation of any of the following, as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5,or a lesser amount of marijuana or hashish in violation of paragraph (12) of subsection b. of that section; or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1) for distributing, dispensing, or possessing with intent to distribute or dispense, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish.

(2) The approved risk assessment instrument shall gather demographic information about the eligible defendant including, but not limited to, race, ethnicity, gender, financial resources, and socio-economic status. Recommendations for pretrial release shall not be discriminatory based on race, ethnicity, gender, or socio-economic status.

d. In addition to the pretrial risk assessments made pursuant to this section, the Pretrial Services Program shall monitor appropriate eligible defendants released on conditions as ordered by the court.

e. The Pretrial Services Program shall compile its findings and issue an annual report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature summarizing, for each case following a pretrial detention hearing, whether the defendant was detained or released pending trial and whether the court’s decision to detain or release the defendant is in accordance with or contrary to the recommendation of the Pretrial Services Program. The report shall not include the personal identifying information of any defendant.

(cf: P.L.2021, c.19, s.10)

4. This act shall take effect on the first day of the second month next following the date of enactment.

STATEMENT

This bill concerns the consideration of factors by the court at a hearing for pretrial detention or the violation of a condition of pretrial release.

Under current law, criminal courts may order the pretrial detention of a defendant who is found to be a flight risk, a danger to another or the community, or likely to obstruct further criminal proceedings. In making this determination, the court is required to consider an number of factors, including the recommendation of the Pretrial Services Program (PSP), based on a risk assessment instrument approved by the Administrative Director of the Courts.

The provisions of the bill provide that under the approved risk assessment, the fact that a defendant lacks significant ties to the State is to weigh in favor of a recommendation to detain the defendant pending trial. In evaluating whether a defendant has significant ties, the PSP is required to consider the: location of the defendant's family; length of time the defendant was physically present in the State and duration of any absence; location of the defendant's property; and extent to which the defendant has ties to the State such as voting registration, State or local tax return filing, vehicle registration, driver's license, social relationships, and receipt of services.

Under current law, the PSP is required to recommend no release when a defendant has been charged with any crime for which the eligible defendant would be subject to a mandatory term of imprisonment for certain crimes involving the use or possession of a firearm. Under the bill, the PSP also is required to recommend no release of a defendant who has been extradited to this State from another jurisdiction if the court finds that the defendant was in the other jurisdiction to avoid prosecution or service of a criminal sentence.

Current law permits a court to revoke pretrial release and order detention pending trial if a defendant violates a condition of release or commits a new crime while on release, but only if it finds by clear and convincing evidence that no monetary bail or conditions of release would reasonably assure the defendant's appearance in court and the public’s safety, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

This bill provides that if a defendant who is granted pretrial release violates a restraining order or condition of release, the court is required to revoke the defendant's release and order the defendant to be detained pending trial for a period of not less than 30 days for a first violation; a period of not less than 60 days for a second violation; a period of not less than 120 days for a third violation; and pending the final disposition of the matter for a fourth violation. The bill further provides that if there is probable cause to believe that the defendant committed a new crime while on release, the court is required to revoke the defendant's release and order the defendant to be detained pending trial unless it finds by clear and convincing evidence that monetary bail, non-monetary bail, or conditions of release would reasonably assure the defendant's appearance in court and the public’s safety, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

Finally, the provisions of the bill require the PSP to compile its findings and issue an annual report to the Governor and the Legislature summarizing, for each case following a pretrial detention hearing, whether the defendant was detained or released pending trial and whether the court’s decision to detain or release the defendant is in accordance with or contrary to the recommendation of the PSP. The report is not to include the personal identifying information of any defendant.