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NJ's Top Cop Revises Controversial Bail Reform Terms

NJ Attorney General Christopher Porrino
NJ Attorney General Christopher Porrino Photo Credit: COURTESY: Bergen County Police Chiefs Association

New Jersey's top law enforcement officer on Wednesday announced changes, effectively immediately, in how prosecutors and police can proceed under a controversial 2017 state bail reform law that has drawn harsh criticism from both.

The goal, Attorney General Christopher Porrino said, is to "better ensure that dangerous and recidivist criminals are detained pending trial."

Among other changes, the revised directive "creates presumptions that prosecutors will seek an arrest warrant and/or pretrial detention for offenders charged with gun crimes, assaults on police, certain crimes involving sexual exploitation of children, or any indictable offense committed while on release or under post-conviction supervision for another crime," Porrino said.

The bail reform law, which took effect Jan. 1, replaced New Jersey’s monetary bail system with a "risk-based" approach, requiring courts to assess the likelihood that a defendant will flee, commit a new crime,or obstruct justice by intimidating victims or witnesses.


EXAMPLES cited by police of repeat offenders released under NJ's 2017 bail reform law:


Under the new law, there are two essential decisions for police and prosecutors:

FIRST: They must decide whether to charge by complaint-warrant or complaint-summons. If they want to seek pretrial detention or, in the alternative, want the court to impose any conditions of release to mitigate risks, they must charge by complaint-warrant. When a warrant is issued by the court, a defendant is arrested and taken to jail to be held for up to 48 hours.

SECOND: Prosecutors must decide whether to seek pretrial detention. Within 48 hours, the defendant will have a first appearance in court, where, if the state has filed a motion to detain, the judge will decide whether to detain or release the defendant, potentially with conditions.

To assist law enforcement and judges in that decision, the Administrative Office of the Courts developed a computer-based risk assessment, the Public Safety Assessment (PSA), which factors in the nature and seriousness of the crime charged, as well as information on the defendant’s adult criminal and court-appearance history.

The PSA offers three risk indicators: (1) a six-point “failure-to-appear” (FTA) risk scale; (2) a six-point “new criminal activity” (NCA) scale that gauges likelihood of re-offense on release; and (3) a “new violent criminal activity” flag, which flags defendants likely to commit violent crimes if released.

The approach has caused a commotion statewide, as defendants with criminal records were freed only to commit other crimes.

Daily Voice has reported several incidents involving such defendants in recent weeks and months.

Last month, Porrino’s office sent a letter to the Administrative Office of the Courts requesting certain changes to the PSA and the decision-making framework employed by the Pretrial Services Program in making recommendations to judges about pretrial detention.

Specifically, the letter requested changes to the PSA and decision-making framework that would make it more likely judges would impose detention in cases where a defendant is charged with a gun crime, eluding police in a vehicle with risk of death or injury, or any new crime committed while on pretrial release, probation or parole.

Those requests are pending, said Porrino, adding that his office "is continuing to work with the courts regarding such goals."

Porrino has the authority to issue the guidelines to prosecutors and police statewide with respect to their decisions about a defendant and what they will seek from a judge -- namely, whether to seek a complaint-warrant to arrest a defendant and whether to seek pre-trial detention or release subject to protective conditions.

Under the new directive:

· A new presumption is created that law enforcement will apply for pretrial detention for any indictable crime committed while a defendant is on pretrial release for another crime or on post-conviction supervision such as parole or probation. Previously, there was a presumption only if the new offense was a first- or second-degree crime.

· The forms of post-conviction supervision triggering the presumption discussed in the first bullet have been expanded beyond traditional parole and probation to include two forms of supervision routinely imposed on sex offenders: (1) community supervision for life, and (2) parole supervision for life. As a result, there is a presumption that prosecutors now will seek pretrial detention for any sex offender subject to such supervision if they are arrested for a new indictable crime.

· Consistent with the request made to the Courts regarding the PSA and the Pretrial Services decision-making framework, the revised directive also establishes a presumption that police and prosecutors will apply for pretrial detention for any defendant who commits a Graves Act firearms offense or possesses a firearm as a convicted felon, or who eludes police in a motor vehicle creating a risk of death or injury to any person.

· There is a new presumption that police and prosecutors will apply for pretrial detention for any first- or second-degree crime if the defendant has an NCA score of 4 or higher. Previously that presumption was triggered only if the defendant had an NCA score (or FTA score) of 5 or higher.

· Police and prosecutors are subject to a new presumption that they will apply for pretrial detention for defendants charged with third- or fourth-degree crimes if the defendant has an NCA score of 5 or higher, or an FTA score of 6. Previously there was no presumption for third- or fourth-degree cases.

· There is a new presumption that police and prosecutors will apply for a complaint-warrant in (1) any case involving second-degree eluding, as discussed above, (2) any case where a defendant is charged with third-degree assault on a police officer or other public official or employee causing bodily injury, or (3) any case where a defendant is charged with manufacturing or distributing child pornography, or related crimes involving the sexual exploitation of children.

· There is now a presumption that police and prosecutors will apply for a complaint-warrant in any case where the PSA generates an FTA or NCA score of 3 or higher, whereas the original directive set the threshold at 4 or higher.

“Bail reform is working, as evidenced by the more than 1,200 dangerous criminals detained without bail in the first quarter of 2017 -- criminals who under the old system might have paid their way out of jail and continued to threaten the community, victims and witnesses,” Porrino said.

“With these revisions to our directive, we’re making sure that detention will be sought more frequently for certain categories of offenders, including recidivist offenders, those who commit gun crimes, sex offenders, and criminals with a history of threatening police and the public with their violent or reckless acts,” he added.

“In the first five months of bail reform, we’ve maintained a constructive dialogue with all stakeholders, including law enforcement, the Judiciary and community leaders, and we’ve replaced the theories behind our original directive with real-life experience and data,” said Elie Honig, director of the state Division of Criminal Justice.

“These revisions to our law enforcement directive reflect a renewed confidence that our new system enables us to protect the public by detaining the most dangerous offenders, while avoiding the costs, both fiscal and social, of warehousing indigent non-violent offenders in jail pending trial,” Honig said.

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