Pretrial Detention Risk Assessment and Juvenile Records

14-2-2812 State v. C.W., N.J. Super. App. Div. (Sabatino, P.J.A.D.) (50pp)

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

A case was recently decided by New Jersey Appellate Division in which several issues under the new Bail Reform Act (the “Act”) were reviewed for the first time.

1. Factual Circumstances

In the case, a nineteen year old was charged with second-degree criminal attempt to sexually assault a child of less than thirteen years of age, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:14-2(b), as well as third-degree endangering the welfare of a child by attempting to engage in sexual conduct to impair or debauch that child’s morals, N.J.S.A. 2C:24-4(a)(1). Prior to this case, he was delinquent for acts that, if committed by an adult, would constitute second-degree attempted sexual assault and third-degree endangering the welfare of a child. He also violated probation on two prior occasions. Further, he was classified as a Tier 3 offender, the highest tier under Megan’s law.

Under the Act, there is a new automated risk-assessment process pursuant to N.J.S.A. 2A: 162-25. The automated process gathers information about defendants from various law enforcement and Judiciary databases, including the State Police criminal case history system, the PROMIS/GAVEL criminal database, the MACS municipal court database, and other sources. 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.

Even though the defendant in this case had low FTA and NCA scores, Pretrial Services recommended to the trial court “Release Not Recommended. If Released, Weekly Reporting + HD/EM.” (Home Detention/Electronic Monitoring). The document contained no elaboration on how that recommendation was generated. The defendant’s significant prior juvenile record was not taken into account numerically in his PSA.

The Trial Court denied the State’s motion for pretrial detention.  The Trial Court concluded that the State had not met its burden by clear and convincing evidence under the statute to show that no combination of conditions could reasonably assure defendant’s appearance in court and the protection and safety of the community before trial.

The new system in the Bail Reform Act favors pretrial release and monitoring as the presumptive approach and limits preventive detention to defendants who actually warrant it.  Nonetheless, the trial court remains authorized, upon motion of a prosecutor, to order pretrial detention of a particular defendant when it finds by “clear and convincing evidence, that no condition or combination of conditions can reasonably assure the effectuation of these goals.” N.J.S.A. 2A:162-15; accord N.J.S.A. 2A:162-18(a)(1); N.J.S.A. 2A:162-19(e)(3).

The State may file an application for pretrial detention when a defendant is charged with, among other things: (1) any crime of the first or second degree enumerated under NERA17; or (2) any crime enumerated under N.J.S.A. 2C:7-2(b)(2) (Megan’s Law) or the crime of endangering the welfare of a child under N.J.S.A. 2C:24-4. See N.J.S.A. 2A:162-19(a)(1) and (4). The State may also move for pretrial detention when a defendant is charged with any other crime for which the prosecutor believes there is a serious risk that the goals set forth in N.J.S.A. 2A:162-15 cannot be met. N.J.S.A. 2A:162-19(a)(7).

At the detention hearing required by N.J.S.A. 2A:162-19(c), if the defendant has not yet been indicted, “the prosecutor shall [first] establish probable cause that the eligible defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). Probable cause consists of a “well grounded” suspicion that an offense has been committed. State v. Sullivan, 169 N.J. 204, 211 (2001).

Except for when an eligible defendant is charged with a crime set forth in N.J.S.A. 2A:162-19(b), i.e., murder or any crime for which the defendant would be subject to an ordinary or extended term of life imprisonment, the statute imposes a rebuttable presumption against detention. N.J.S.A. 2A:162-18(b). The State must rebut the presumption that some amount of monetary bail, non-monetary conditions, or a combination thereof would reasonably assure (1) the defendant’s appearance in court when required, (2) the protection of the safety of any other person or the community, and (3) that the defendant will not obstruct or attempt to obstruct the criminal justice process. N.J.S.A. 2A:162-18(b).

At a detention hearing the court may take into account :

1. the nature and circumstances of the offense charged
2. weight of evidence
3. history and characteristics of defendant including:
   1. character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
   2. whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state
4. danger to any other person if released
5. risk of obstructing criminal justice process if released
6. release recommendation of the pretrial services program

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[.]”

A defendant may be released on: (1) his or her own recognizance; (2) execution of an unsecured appearance bond; (3) non-monetary conditions; (4) monetary bail; or (5) a combination of conditions and monetary bail. N.J.S.A. 2A:162-16(b)(2); N.J.S.A. 2A:162-17. Monetary bail can only be used to reasonably assure the eligible defendant’s appearance. N.J.S.A. 2A:162-17(c)(1)

1. Proper Standards for Appellate Review for Assessing a Trial Court’s Decision to Detain or Release a Defendant

The statute explicitly confers upon defendants a right to appeal an order of pretrial detention “pursuant to the Rules of Court” N.J.S.A. 2A:162-18(c) and “shall be heard in an expedited manner.”

An appellate court “may find an abuse of discretion when a decision ‘rest[s] on an impermissible basis’ or was ‘based upon a consideration of irrelevant or inappropriate factors.'” Steele, supra, 430 N.J. Super. at 34-35 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). An appellate court can also discern an abuse of discretion when the trial court fails to take into consideration all relevant factors and when its decision reflects a clear error in judgment. State v. Baynes, 148 N.J. 434, 444 (1997).

Likewise, when the trial court renders a decision based upon a misconception of the law, that decision is not entitled to any particular deference and consequently will be reviewed de novo. See, e.g., State v. Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J. Super. 266, 272 (App. Div. 2015).

A reviewing court generally will give no deference to a trial court decision that fails to “provide factual underpinnings and legal bases supporting [its] exercise of judicial discretion.” Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012).

In summary, the scope of appellate review of a detention decision generally should focus on whether the trial court abused its discretion, but de novo review applies with respect to alleged errors or misapplications of law within that court’s analysis.

• Analytic Impact of a Defendant’s Juvenile Record, a Facet that is not Numerically Reflected in a Defendant’s Risk-Assessment Scores

Section 20 of the Act broadly authorizes the trial court to consider a defendant’s “past conduct” as one of the many permissible factors in evaluating his or her suitability for pretrial release. N.J.S.A. 2A:162-20(c)(1).

A defendant’s prior adjudications of delinquency and the nature of his or her juvenile offenses are logically part of his or her “history and characteristics” and indicative of the danger he or she poses to the community under N.J.S.A. 2A:162-20(c) and (d).

A defendant’s prior history of juvenile delinquency and probation violations is a permissible – and at times especially significant – consideration in the detention analysis. Such consideration of a defendant’s juvenile record is authorized by the Act, as it is logically subsumed within the factors set forth in N.J.S.A. 2A:162-20(c)(1).

1. The Significance to the Detention Analysis of a Defendant’s Tier Classification Under Megan’s Law

The State is obligated to demonstrate the propriety of defendant’s tier classification by clear and convincing evidence. In re Registrant M.F., 169 N.J. 45, 54 (2001).

For a Megan’s Law Tier analysis, the precise nature of his original offenses would have been considered. Many aspects of his life and character would have been assessed. Another trial judge conducted a hearing on that classification, at which defendant presumably had the right to counsel.

Detention analysis under the Act should afford considerable weight to the tier classification of a defendant who has previously committed a sexual offense subject to Megan’s Law, N.J.S.A. 2C:7-1 to -23, and whose dangerousness and risk of re-offending have been evaluated on a Registrant Risk Assessment Scale (“RRAS”). Such a Megan’s Law tier classification falls within the broad terms of N.J.S.A. 2A:162-20(c)(1). The Megan’s Law tiering is particularly salient where a defendant has been classified in “Tier 3” corresponding to the highest risk of re-offense, and where the pending charges involve new sexual offenses.

1. Whether a Recommendation by the Judiciary’s Pretrial Services Program to Detain a Defendant Creates a Rebuttable Presumption Against Release

A Pretrial Services recommendation to detain a defendant does not create, under Rule 3:4A(b)(5), a rebuttable presumption against release that a defendant must overcome. However, as the Rule expressly states, such a recommendation to detain may be, but is not required to be, relied upon by the court as “prima facie evidence” to support detention.

1. Conclusion

The trial court did not explain in writing specifically why it deviated from the portion of the Pretrial Services recommendation advising against defendant’s release. Such a written explanation is required by the Act in N.J.S.A. 2A:162-23(a)(2).

The present record on these points is also deficient to afford meaningful consideration. No facts were presented as to what conduct was involved in defendant’s two violations of probation in 2012 and 2013. Apparently, he was not charged with additional substantive offenses stemming from those incidents, but that does not necessarily mean that they were minor or did not correlate in some way to defendant’s past wrongful behavior. Similarly, there is no information in this record about the timing, details, underlying rationale, or current status of the tier classification under Megan’s Law.

Therefore the case is remanded for further consideration consistent with the opinion.