The Constitutionality of a Pre-Trial Detention Based on Defendants’ Immigration Status

State v. Molchor:

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Defendants were arrested for aggravated assault and criminal mischief. The facts stipulate that defendants allegedly attacked and injured the host at a party they attended, and afterwards fled the scene in a car before being stopped by police. They were apparently under the influence. Defendants’ public safety assessments rated them at the lowest risk for failure to appear and “2” on the risk scale for new criminal activity. With no prior criminal histories, the PSAs recommended defendants’ release conditioned on monthly reporting. However, based on defendants’ immigration status, the state moved for pretrial detention, arguing that their potential detention by ICE due to their undocumented status meant they posed a flight risk. The state further alleged that defendants posed a risk of retaliation against the alleged victim. The trial court agreed with the State that detention was required to prevent defendants’ non-appearance due to their potential detention and/or removal from the country by immigration officials.

Defendants appealed from the trial court’s order for their pretrial detention. The main issue raised on appeal is whether the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, authorizes a court to detain arrestees who are undocumented immigrants in order to thwart their potential removal from the country by federal immigration officials, and thereby to assure they appear at trial. The defendants argued that they were only detained due to their immigration status and the fear that ICE officials would prevent their appearance. The defendants contended that the Criminal Justice Reform Act did not permit detention on such grounds, and that the risk of failure to appear had to arise from a defendant’s own volitional acts, and not the intervening acts of another governmental entity. Defendants also noted that there was no evidence of an imminent threat that ICE would detain defendants.

The appellate court ruled that the trial court erred in accepting the state’s argument that the risk of defendants’ non-appearance due to the actions of federal immigration officials warranted detention. The court reversed and remanded the case for the trial court to consider detention based solely on the risk of detention arising from defendants’ own misconduct or volition.

At Hark & Hark, we represent clients for appeals in Superior Court for issues like the present case pertaining to the constitutionality of a pre-trial detention. We work hard to ensure that our clients receive exceptional representation so that they receive the most favorable outcome as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendants in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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