In re Request to Release Certain Pretrial Detainees, 245 N.J. 218 (2021). This matter arose out of a motion filed by the Office of the Public Defender and the American Civil Liberties Union of New Jersey. As a result of the COVID-19 pandemic, criminal juries have been suspended, meaning that criminal defendants detained pre-trial under the Criminal Justice Reform Act (“CJRA”) have been held for more extended periods of time.
Relying on both constitutional and statute-based arguments, movants sought two forms of relief. The first was the release of all those detained for six months or longer on charges of second-degree offenses or lower, subject to the State’s right to contest release in individual cases. The second was new detention hearings for all those detained for six months or longer on first-degree charges and who are entitled to a presumption of release. Though movants made the “significant and thoughtful concession[ ]” that the CJRA was constitutional, they contended that “continued detention raises potentially serious due process concerns that would require intervention.”
Today, in a unanimous opinion by Chief Justice Rabner, the Court denied both of these requested forms of global relief. The Court declined to “find that the pandemic, along with the accompanying suspension of in-person criminal jury trials, has transformed the CJRA’s overall approach to pretrial detention into a punitive scheme.” Movants had asked the Court either to engage in “judicial surgery” to revise the CJRA to provide the requested relief, or to invoke its rulemaking powers to accomplish that. Chief Justice Rabner explained that neither vehicle was appropriate.
Judicial surgery is reserved for occasions “when [it is] necessary to save an enactment that otherwise would be constitutionally doomed,” in circumstances when the court finds that the Legislature would have intended to salvage the statute rather than see it fall entirely. Judicial surgery was not appropriate here. “That approach would work a wholesale change in an otherwise constitutional statute to remedy circumstances best assessed on a case-by-case basis.”
It was also improper for the Court to invoke its rulemaking power, the Chief Justice said. That authority “does not extend to rewriting substantive legislation that is constitutional.”
But the Court did order a procedure under which “individual cases, which are not the subject of the Order to Show Cause, can be subject to challenge on due process grounds based on the length of detention.” N.J.S.A. 2A:162-19(f), part of the CJRA, allows detention hearings to be reopened “when there is a material change in circumstances,” as the Chief Justice paraphrased it. The pandemic was a changed circumstance, and materiality ” will vary by defendant and turn on the particular facts of each case.”
Chief Justice Rabner identified five factors that are potentially relevant to materiality. Those included “[t]he length of detention to date as well as the projected length of ongoing detention,” “[w]hether a defendant has been or will be in detention longer than the likely amount of time the person would actually spend in jail if convicted,” “[t]he existence and nature of a plea offer,” “defendant’s particularized health risks, if any, and whether they present a heightened risk the individual will contract COVID-19,” and “[o]ther factors relevant to pretrial detention that are outlined in N.J.S.A. 2A:162-20.”
The Court held that “defendants have the right to reopen their detention hearings under N.J.S.A. 2A:162-19(f) if they (1) have been detained for at least six months and (2) can make a preliminary showing that, based on one or more of the above factors, they are entitled to relief.” In contrast, “[d]efendants subject to a presumption of detention under the statute will likely not be eligible for new hearings because the seriousness of the offense charged –murder or a crime that subjects a defendant to a sentence of life imprisonment –weighs heavily in the release decision.” Reopened hearings, and appeals from such hearings, are to be conducted on an expedited basis, the Court directed.
Movants did not get the global relief they sought. But the Court’s response affords process on a case-by-case basis to those who can satisfy the five factors, a reasonable result.
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