The New Jersey Supreme Court continues to refine the state’s 16-month-old criminal justice reform program, as itthat in most instances, judges cannot decide whether to detain someone awaiting trial solely based on the nature of the crime they are accused of.
In the first year of criminal justice reform, judges granted prosecutors’ motions to detain 57 percent of the time. That means that about 18 percent of more than 44,000 defendants processed during 2017 wound up being held awaiting trial, with the rest released, often with some level of monitoring.
The ruling is the latest effort by the justices to shape the recent radical change in the bail system. It moved the state from a system that based pre-trial release on bail to one that considers the potential danger an individual poses to the public and the likelihood of their showing up for trial. The state’s highest court has moved relatively quickly on matters related to the reform because it also allows the accused to be held without bail, pending trial.
In Tuesday’s decision, the unanimous court ruled that judges cannot make detention determinations based only on the crime committed, except in cases involving murder and other crimes that carry a penalty of life imprisonment. These charges include aggravated sexual assault, human trafficking, and terrorism. They also overruled the algorithm that prosecutors and judges have been using when deciding whether to seek and order, respectively, if a person should be detained.
“A recommendation against a defendant’s pretrial release that is based only on the type of offense charged cannot justify detention by itself,” wrote Chief Justice Stuart Rabner for the court. Murder and crimes that could lead to life imprisonment are the only ones carrying the assumption that the defendant remain confined until trial.
Alexander Shalom, senior staff attorney with the American Civil Liberties Union of New Jersey, cheered the decision as affirming the presumption that defendants should be allowed to await trial free from confinement.
“What the modification of the rule does is ensure that the message is heard loud and clear that in our society, liberty is the norm and detention is the exception,” said Shalom, who filed a friend of the court brief in the case.
The case involved Hassan Travis, charged on five counts of robbery, assault, and gun possession in a robbery in Newark in which shots were fired. Several months after the crime, Travis turned himself in to police last June. The required Public Safety Assessment (PSA) gave Travis the lowest possible score, meaning it considered him to not be a danger to the public and deemed him likely to appear for trial.
Because one of the charges against Travis was first-degree robbery, the PSA recommended he be held pending trial. That’s because part of the PSA known as thegenerates a recommendation against release for first-degree robbery, as well as charges of escape, manslaughter, sexual assault, carjacking, and some weapons offenses.
The prosecutors sought to detain Travis and the judge agreed. While not ruling specifically whether the judge erred in ordering Travis detained, the justices said that relying on the DMF and holding a person in custody solely based on the crime committed is improper in general.
“Recommendations based on the PSA and the DMF, though, do not replace judicial discretion,” Rabner wrote. “Trial judges make the ultimate decision on release after they consider other relevant details.”
At the time, the court rule allowed judges to use a PSA recommendation of detention to keep a person confined pending trial, although it also gave judges discretion to not follow that recommendation and to release defendants deemed to not pose a risk of danger to others or flight. Travis had argued in appealing his incarceration pending trial that because the Criminal Justice Reform Act that changed the system does not require detention for first degree robbery, that rule tipped the odds against his release.
Travis wound up pleading guilty to second-degree robbery, which would normally make his appeal moot. But the court took the case because the application of its rule at “pretrial detention hearings raise issues of considerable public importance, particularly in the early days of the CJRA,” Rabner wrote.
In writing the original rule, the court “hoped they would foster a fair and efficient process for criminal justice reform.” Now, the decision continued, “the experience from thousands of actual detention hearings helps inform our thinking,” and the justices’ concluded that “parts of the Rule should be revised.” For instance, the language of the old rule “suggests a court can order detention based solely on a recommendation against release” and that is not what should happen, Rabner wrote.
“We are asking judges, not algorithms, to make important decisions about a person’s liberty,” said Shalom, who has been a strong proponent of criminal justice reform. “We are not going to allow short cuts that make it easier to detain people.”
Judges can still use the severity of a crime as a factor in determining whether to detain a defendant, the decision states, but it cannot be the sole factor. Most importantly, the justices affirmed the purpose of criminal justice reform, which requires that defendants be released while awaiting trial “unless the state can demonstrate by clear and convincing evidence that detention is warranted.”
The justices also used a second case joined in the same decision to issue further clarifications to define how pending charges may be used in deciding whether a person should be detained and when multiple offenses may be counted as one for the purpose of determining a defendant’s release. In that case, involving Jonathan Mercedes of Camden, the court kicked the question of pretrial detention back to the trial judge to reconsider his decision not to detain Mercedes based on the new guidance from the justices on those issues.
New Jersey’s criminal justice reform became effective January 1, 2017. Voters overwhelmingly passed a constitutional amendment in 2014 changing how the courts decide where those accused of a crime spend their time awaiting trial.
Under the former system, a judge would set a bail amount and a person unable to pay was forced to await trial in jail, while a wealthy person who could afford the bond could go free, regardless of the severity of the crime. Under bail reform, it is assumed that alleged criminals will be released without bail — some with varying degrees of monitoring — but those accused of the most heinous offenses may be detained until their case goes before a judge. Those who are held must be tried within two years in an effort to minimize the amount of time a person must spend in confinement while awaiting trial.