What is the New Assessment Process for Pretrial Detention?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

The new Bail Reform Act (the “Act”), which has been in effect since January 1, 2017, is now being analyzed by New Jersey Courts. Part of the Act is the new automated risk-assessment process in deciding whether pretrial detention is appropriate.  The automated process gathers information about defendants from various law enforcement and Judiciary databases. The information derived from these sources is used to address the following nine risk factors:

(1) defendant’s age at current arrest;

(2) current violent offense, or current violent offense by a defendant twenty years old or younger;

(3) pending charge(s) at the time of arrest;

(4) prior misdemeanor convictions;

(5) prior felony convictions or any prior convictions (misdemeanor or felony);

(6) prior violent convictions;

(7) prior failures to appear in the past two years;

(8) prior failures to appear older than two years; and

(9) prior sentences leading to incarceration.

The automated process does not account for a defendant’s juvenile history. Hence, the numerical scores it generates do not reflect adjudications of delinquency for serious violent crimes, juvenile violations of probation, or failures of a juvenile to appear at proceedings.

Using an algorithm, the automated process generates a Public Safety Assessment (“PSA”), i.e., a risk profile designed to inform the trial court of the likelihood, on a scale of one to six, that defendant, if released before trial, would engage in a New Criminal Activity (“NCA”) or Fail to Appear (“FTA”) at future court events. The PSA has also been designed to include a “flag” if there is a statistical likelihood that the defendant would engage in a New Violent Criminal Activity (“NVCA”).

A defendant’s NCA and FTA scores are then factored into the Judiciary’s approved Decision-Making Framework (“DMF”). The DMF attempts to identify the recommended level and type of conditions and intervention or monitoring services needed to manage the risks posed by defendant if he were released.

N.J.S.A. 2A:162-16(b)(1), expressly mandates the court “shall consider the [Pretrial Services] risk assessment and recommendations on conditions of release before making any pretrial release decision[.]”

This means that the trial court does not have to follow the Pretrial Services’ recommendation, however the court cannot completely ignore it.  Further, if the court decides not to follow the recommendation, it must provide a written explanation for the reasons as required by the Act in N.J.S.A. 2A:162-23(a)(2).

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