What is a 48-Hour Risk Assessment Hearing/Pre-Trial Detention?
Before January 1, 2017, someone arrested in NJ would either be released without having to post a bail, or a judge would set a bail within a matter of hours. Now, a defendant might not be entitled to any bail at all. The NJ Bail Reform Act replaces the monetary bail system with a risk-based approach, requiring courts to assess the likelihood that a defendant will flee, commit new crimes, or obstruct justice by intimidating victims or other witnesses. In most circumstances, a defendant will be released on a summons, meaning they will not need to post a bail or stay in jail for more than an hour. However, the law now requires that people charged with certain types of crimes will be held for up to 48 hours until a judge can determine if they will be released, and if so, what conditions will be put on that release. But there is no guarantee of a bail now.
The law now calls for every defendant who is not initially released on his own recognizance to be temporarily detained to allow the preparation of “a risk assessment with recommendations on conditions of release . . . and for the court to issue a pretrial release decision.” The statute requires that this initial decision occur within 48 hours, but the Judiciary aims to conduct risk assessments within 24 hours. Once a risk assessment has been conducted, the statute requires a court to consider the assessment “and any information that may be provided by a prosecutor or the . . . defendant” in reaching its decision regarding whether the defendant should be detained or released and, if released, on what conditions. The trouble is that this decision is not made for at least three more days.
When is a defendant be held for a 48-Hour Risk Assessment Hearing?
It depends on the type of crime charged:
harges that will PROBABLY NOT result in up to a 48-hour detention:
1. Petty disorderly persons offenses
2. Disorderly persons offenses (except those marked as involving domestic violence)
3. Most third and fourth degree crimes
Charges that will PROBABLY result in up to a 48-hour detention while awaiting a Pre-Trial Detention Hearing:
1. Any crime or offense involving domestic violence
2. Violation of a Domestic Violence Restraining Order or Sexual Assault Survivor Protection Act Order
3. Bail jumping
4. Witness tampering
5. First or second degree drug crimes
6. Vehicular homicide
7. Disarming a law enforcement officer
9. Aggravated arson
10. Second degree burglary
12. Booby traps in drug manufacturing or distribution facilities
13. Strict liability for drug induced deaths
15. Producing or possessing chemical weapons, biological agents, or radiological devices
17. Firearms trafficking
18. A crime of violence subject to the No Early Release Act (NERA)
19. A crime which subjects the defendant to a life sentence (including extended term sentences)
20. Any crime if the defendant has twice previously been convicted of NERA crimes or crimes carrying life sentences
21. An attempt to commit any of the above
22. Any crime for which Prosecutor believes defendant:
a. Will not appear
b. Poses a danger to the community or
c. Will obstruct or attempt to obstruct an investigation
Charges that WILL result in up to a 48-hour detention while awaiting a Pre-Trial Detention Hearing:
2. Manslaughter/Aggravated Manslaughter
3. Sexual assault/Aggravated Sexual Assault
7. Attempt to commit any the above
The Public Safety Assessment
Once we know that a person will stay in jail waiting for the 48-Hour Risk Assessment, then we wait for the first appearance, where the prosecutor will tell the judge if they want the defendant to remain in jail until the case is over. Then it takes at least three days before the judge decides whether a defendant will be released pending trial or not. This is a separate hearing, where the defense can call and question witnesses, and present evidence that shows the judge that if released, the defendant is not likely to skip court, that he will not be a danger to the community, and that he will not tamper with the witnesses or evidence. For this decision, the judge will use the Public Safety Assessment. The Public Safety Assessment (PSA) contains nine risk factors that provide three pretrial failure indicators. The PSA provides separate scores regarding defendants’ risk of:
1. Failure to appear in court (FTA) (using a six point scale)
2. New criminal activity (NCA) (using a six point scale) and
3. New violent criminal activity (NVCA) (using a flag to indicate an elevated risk of violence)
The Decision Making Framework
The PSA scores are only the beginning of the decision making process regarding pretrial release. While the PSA measures risk, New Jersey will also use a Decision Making Framework (DMF) to help manage that risk. The DMF produces a recommendation for a judge about conditions of release or detention. The ultimate decision about release or detention is held by judges, and therefore defense attorneys must concern themselves with convincing judges to release their clients on the least onerous condition or series of conditions.
Using the DMF as a recommendation, courts assign defendants different levels of supervision, referred to as Pretrial Monitoring Levels (PML).
A defendant released ROR will have no conditions, no face-to-face contact with a pretrial services officer, and no phone contact with the officer. At PML 1, there is only monthly phone reporting. At PML 2, defendants must report once a month in person, once a month by telephone, and be subject to some monitored conditions such as a curfew. At PML 3, defendants are monitored in person or by phone every week and are also subject to monitored conditions. Defendants at the next level, PML 3 plus electronic monitoring or home detention, are subject to all the same conditions but also may be confined to their home or required to wear a GPS monitoring device. Finally, if release is not recommended, the DMF suggests that the defendant should be detained pretrial or, if release is allowed, ordered released on PML 3 with electronic monitoring or home detention.
The DMF is a four step process:
First, the court completes the PSA to produce scores for FTA and NCA and a flag for NVCA.
Second, the court determines whether any of the circumstances or charges are present which, in a majority of cases, would produce a recommendation of preventive detention, regardless of PSA score. Such a recommendation exists if the defendant is charged with escape, murder, aggravated manslaughter, manslaughter, aggravated sexual assault, sexual assault, robbery in the 1st degree, or carjacking. It also exists where the PSA resulted in an NVCA flag and the current offense is a violent one. If any of these conditions exist, release is not recommended or, if released, it is recommended that the defendant be released on the most restrictive conditions. If none of the conditions exists, the court proceeds to step three.
Third, the court applies the FTA and NCA scaled scores to a DMF matrix to determine a risk level and a preliminary recommendation.
Finally, the court determines whether the defendant is charged with a No Early Release Act (NERA) crime not addressed in step three.
If so, the level of recommended conditions increases one level (from ROR to release with PML 1; from PML 1 to PML 2 and so forth). If not, the preliminary recommendation is the final recommendation.
If there is information that can be provided to the judge before this hearing, it can be used to convince him or her not to follow the recommendation. Whether it is house arrest, an electronic monitoring bracelet, or any other way to convince the judge that letting a defendant sit in jail for months or years, it is worth trying.
How long will a defendant have to sit in jail if a judge orders Pre-Trial Detention?
If a judge has decided to hold a person in Pre-Trial Detention pending trial, there are two important dates that follow:
90 days from arrest - the Prosecutor's Office must return an indictment within 90 days of arrest. If not, then the law states that they must be released (but the case is not dismissed).
180 days from Indictment - the Prosecutor's Office must bring a defendant to trial within 180 days of Indictment. If not, the law states that they may be released from jail (but the case is not dismissed).