An Act concerning ¹[the public safety risk assessment] pretrial detention¹ and amending P.L.2014, c.31.

Whereas, The New Jersey State Commission of Investigation ("SCI") is an independent fact-finding agency empowered by N.J.S.A.52:9M-1 et seq. to investigate public safety matters, monitor and assess the threat posed by organized crime, and recommend new laws and other systemic remedies to protect the integrity of the governmental process on behalf of the citizens of New Jersey; and

Whereas, Recently, SCI investigated concerns regarding illegal firearms and issued a report in September 2024 titled "Illegal Firearms Use & Trends in New Jersey"; and

Whereas, The recent proliferation of privately manufactured "ghost guns," which are easy-to-build homemade guns that do not require background checks and are virtually untraceable, and firearms corrupted with devices enabling them to function like weapons of war, has allowed criminals to outgun the police in many communities; and

Whereas, Under the report, SCI was also concerned with instances where a firearm is discharged in public, as it is an inherently violent offense any time a firearm is discharged in public, with there always being a risk that a stray bullet could injure an innocent bystander and an even higher likelihood with gun conversion devices that turn semi-automatic firearms into rapid-fire machine guns; and

Whereas, The reckless and public discharges of a firearm, including instances when public discharges are charged as criminal mischief or endangering another person, should be categorized as violent offenses, yet in those instances the conduct would not currently be categorized as a violent offense under the Public Safety Assessment ("PSA"); and

Whereas, The PSA is a pretrial risk assessment tool that uses nine risk factors from an individual's criminal history to produce two risk scores: one representing the likelihood of a new crime being committed, and another representing the likelihood of a failure to appear for future court hearings; and

Whereas, The PSA is used at two points in New Jersey's pretrial process: at the time of arrest, when a police officer must decide whether to seek a complaint-warrant or issue a complaint summons; and at the time of the first court appearance, when the court sets release conditions for a defendant who was booked into jail on a complaint warrant; and

Whereas, The nine PSA risk factors developed and assessed by the New Jersey Judiciary are: (1) age at current arrest; (2) current violent offense; (3) pending charge at the time of offense; (4) prior disorderly persons conviction; (5) prior indictable conviction; (6) prior violent conviction; (7) prior failure to appear pretrial in the past two years; (8) prior failure to appear older than two years; and (9) prior sentence of incarceration; and

Whereas, SCI's findings reflected within its September 2024 report reveal that New Jersey should adopt or amend existing laws to address the latest technological advances used by criminal elements to circumvent gun restrictions and corrupt firearms to make them even more dangerous; and

Whereas, Specifically, SCI's report includes a finding that the current PSA risk factor calculations fail to accurately reflect the dangerousness of firearms; and

Whereas, Since the PSA risk factors are produced and assessed by the Judicial branch, the Legislative and Executive branches are joining together to urge the Judicial branch to reassess the PSA risk factors, in accordance with this act, to more accurately reflect changes in technology impacting the dangerousness level of firearms; now, therefore,

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

¹1. Section 5 of P.L.2014, c.31 (C.2A:162-19) is amended to read as follows:

5. a. A prosecutor may file a motion with the court at any time, including any time before or after an eligible defendant's release pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17), seeking the pretrial detention of an eligible defendant for:

(1) any crime of the first or second degree enumerated under subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2);

(2) any crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment;

(3) any crime if the eligible defendant has been convicted of two or more offenses under paragraph (1) or (2) of this subsection;

(4) any crime enumerated under paragraph (2) of subsection b. of section 2 of P.L.1994, c.133 (C.2C:7-2) or crime involving human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or P.L.2013, c.51 (C.52:17B-237 et al.) when the victim is a minor, or the crime of endangering the welfare of a child under N.J.S.2C:24-4;

(5) any crime enumerated under subsection c. of N.J.S.2C:43-6;

(6) any crime or offense involving domestic violence as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); or

(7) any other crime for which the prosecutor believes there is a serious risk that:

(a) the eligible defendant will not appear in court as required;

(b) the eligible defendant will pose a danger to any other person or the community; or

(c) the eligible defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.

b. When a motion for pretrial detention is filed pursuant to subsection a. of this section, there shall be a rebuttable presumption that the eligible defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, if the court finds probable cause that the eligible defendant:

(1) committed murder pursuant to N.J.S.2C:11-3; or

(2) committed any crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment.

c. A court shall hold a hearing to determine whether any amount of monetary bail or non-monetary conditions or combination of monetary bail and conditions, including those set forth under subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17) will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

d. (1) Except as otherwise provided in this subsection, the pretrial detention hearing shall be held no later than the eligible defendant's first appearance unless the eligible defendant, or the prosecutor, seeks a continuance. If a prosecutor files a motion for pretrial detention after the eligible defendant's first appearance has taken place or if no first appearance is required, the court shall schedule the pretrial detention hearing to take place within three working days of the date on which the prosecutor's motion was filed, unless the prosecutor or the eligible defendant seeks a continuance. Except for good cause, a continuance on motion of the eligible defendant may not exceed five days, not including any intermediate Saturday, Sunday, or legal holiday. Except for good cause, a continuance on motion of the prosecutor may not exceed three days, not including any intermediate Saturday, Sunday, or legal holiday.

(2) Upon the filing of a motion by the prosecutor seeking the pretrial detention of the eligible defendant and during any continuance that may be granted by the court, the eligible defendant shall be detained in jail, unless the eligible defendant was previously released from custody before trial, in which case the court shall issue a notice to appear to compel the appearance of the eligible defendant at the detention hearing. The court, on motion of the prosecutor or sua sponte, may order that, while in custody, an eligible defendant who appears to be a drug-dependent person receive an assessment to determine whether that eligible defendant is drug-dependent.

e. (1) At the pretrial detention hearing, the eligible defendant has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The eligible defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.

(2) In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable cause that the eligible defendant committed the predicate offense. A presumption of pretrial detention as provided in subsection b. of this section may be rebutted by proof provided by the eligible defendant, the prosecutor, or from other materials submitted to the court. The standard of proof for a rebuttal of the presumption of pretrial detention shall be a preponderance of the evidence. If proof cannot be established to rebut the presumption, the court may order the eligible defendant's pretrial detention. If the presumption is rebutted by sufficient proof, the prosecutor shall have the opportunity to establish that the grounds for pretrial detention exist pursuant to this section.

(3) Except when an eligible defendant has failed to rebut a presumption of pretrial detention pursuant to subsection b. of this section, the court's finding to support an order of pretrial detention pursuant to section 4 of P.L.2014, c.31 (C.2A:162-18) that no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process shall be supported by clear and convincing evidence.

f. The hearing may be reopened, before or after a determination by the court, at any time before trial, if the court finds that information exists that was not known to the prosecutor or the eligible defendant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.

g. When a motion for pretrial detention is filed pursuant to subsection a. of this section, a pretrial recommendation of no release pursuant to subsection f. of section 6 of P.L.2014, c.31 (C.2A:162-20) may constitute prima facie evidence to overcome the presumption of release as set forth in subsection b. of section 4 of P.L.2014, c.31 (C.2A:162-18), if the court finds probable cause that the eligible defendant committed any crime [for which the eligible defendant would be subject to a mandatory term of imprisonment pursuant to subsection c. of N.J.S.2C:43-6 for a crime] involving the use or possession of a firearm [other than a violation of:

(1) subsection a. or d. of N.J.S.2C:39-3;

(2) paragraph (1) or (2) of subsection a. of N.J.S.2C:39-4;

(3) subsection a. of section 1 of P.L. 1998, c.26 (C.2C:39-4.1); or

(4) paragraph (1) of subsection b. or paragraph (1) or (2) of subsection c. of N.J.S.2C:39-5.¹

(cf: P.L.2022, c.43, s.1)

¹[2. Section 11 of P.L.2014, c.31 (C.2A:162-25) is amended to read as follows:

11. a. The Administrative Director of the Courts shall establish and maintain a Statewide Pretrial Services Program which shall provide pretrial services to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.).

b. The Pretrial Services Program shall, after an eligible defendant is temporarily detained pursuant to subsection a. of section 2 of P.L.2014, c.31 (C.2A:162-16) following the issuance of a complaint-warrant, conduct a risk assessment on that eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision, including whether the eligible defendant shall be: released on the eligible defendant's own personal recognizance or on execution of an unsecured appearance bond; released on a non-monetary condition or conditions as set forth under subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17); released on monetary bail, other than an unsecured appearance bond; released on a combination of monetary bail and non-monetary conditions set forth under section 3 of P.L.2014, c.31 (C.2A:162-17); or any other conditions necessary to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). The risk assessment shall be completed and presented to the court so that the court can, without unnecessary delay, but in no case later than 48 hours after the eligible defendant's commitment to jail, make a pretrial release decision on the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).

c. The pretrial risk assessment shall be conducted using a risk assessment instrument approved by the Administrative Director of the Courts that meets the requirements of this subsection.

(1) (a) The approved risk assessment instrument shall be objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release. The risk assessment instrument shall not be required to include factors specifically pertaining to the risk for obstructing or attempting to obstruct the criminal justice process.

(b) The approved risk assessment instrument shall not consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on a violation of any of the following, as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5,or a lesser amount of marijuana or hashish in violation of paragraph (12) of subsection b. of that section; or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1) for distributing, dispensing, or possessing with intent to distribute or dispense, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish.

(c) The approved risk assessment instrument shall consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on a violation of any of the following as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: any indictable crime, disorderly persons offense, or petty disorderly persons offense involving the use or possession of a firearm.

(2) The approved risk assessment instrument shall gather demographic information about the eligible defendant including, but not limited to, race, ethnicity, gender, financial resources, and socio-economic status. Recommendations for pretrial release shall not be discriminatory based on race, ethnicity, gender, or socio-economic status.

d. In addition to the pretrial risk assessments made pursuant to this section, the Pretrial Services Program shall monitor appropriate eligible defendants released on conditions as ordered by the court.

(cf: P.L.2021, c.19, s.10)]¹

¹[1.] 2.¹ Section 6 of P.L.2014, c.31 (C.2A:162-20) is amended to read as follows:

6. In determining in a pretrial detention hearing whether no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, the court may take into account information concerning:

a. The nature and circumstances of the offense charged;

b. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;

c. The history and characteristics of the eligible defendant, including:

(1) the eligible defendant's 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 appearances at court proceedings, except with respect to these factors, the court shall not consider manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5, or possession of marijuana or hashish in violation of paragraph (3) of subsection a. of N.J.S.2C:35-10; 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;

d. The nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant's release, if applicable;

e. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant's release, if applicable; and

f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under section 11 of P.L.2014, c.31 (C.2A:162-25). Pretrial services shall recommend no release when a defendant has been charged with any crime [for which the eligible defendant would be subject to a mandatory term of imprisonment pursuant to subsection c. of N.J.S.2C:43-6 for a crime] involving the use or possession of a firearm [other than a violation of:

(1) subsection a. or d. of N.J.S.2C:39-3;

(2) paragraph (1) or (2) of subsection a. of N.J.S.2C:39-4;

(3) subsection a. of section 1 of P.L. 1998, c.26 (C.2C:39-4.1); or

(4) paragraph (1) of subsection b. or paragraph (1) or (2) of subsection c. of N.J.S.2C:39-5].

(cf: P.L. 2022, c.43, s.2)

3. This act shall take effect immediately.