State v. Oscar Lopez-Carrera (084750) (Somerset County & Statewide) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Oscar Lopez-Carrera (A-8-20) (084750)
State v. Juan C. Molchor; State v. Jose A. Rios (A-9-20) (084694)
Argued November 30, 2020 -- Decided March 30, 2021
RABNER, C.J., writing for the Court.
In these consolidated appeals, the Court considers whether the Criminal Justice
Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, empowers judges to detain
defendants who are non-citizens to prevent immigration officials from removing them
from the country before trial.
Defendants Juan Molchor and Jose Rios were arrested and charged with
aggravated assault and criminal mischief. They allegedly punched and struck an
acquaintance over the head with beer bottles at a party and damaged two cars as they left
the party. Pretrial Services prepared Public Safety Assessments (PSAs) for both
defendants. The PSAs rated both defendants 1 out of 6 for failure to appear, the lowest
level of risk, and 2 out of 6 for new criminal activity. Neither defendant had any pending
charges, prior convictions, prior failures to appear, or prior juvenile adjudications.
Pretrial Services recommended that both be released with monthly reporting.
The State moved for pretrial detention, claiming defendants posed a flight risk
because they were undocumented immigrants. The State presented no evidence that U.S.
Immigration and Customs Enforcement (ICE) was interested in either defendant. The
court ordered both defendants detained pretrial, noting that, but for their immigration
status, both would likely have been released. In both detention orders, the court included
a single finding to justify detention: “Particular circumstances, specifically, defendant is
an illegal alien.” The Appellate Division consolidated the cases and reversed. See 464
N.J. Super. 274 (App. Div. 2020). The Court granted leave to appeal. 244 N.J. 187 (2020).
Defendant Oscar Lopez-Carrera was charged with attempted sexual assault and
criminal sexual contact in relation to an alleged attempted sexual assault of a minor. Like
Molchor and Rios, Lopez-Carrera had no prior convictions or other pending charges, and
no prior failures to appear. The PSA rated him at the lowest level of risk, 1 out of 6, for
both failure to appear and new criminal activity. Pretrial Services recommended that
Lopez-Carrera be released on his own recognizance. The State did not initially move for
pretrial detention, and Lopez-Carrera was released on conditions. Immediately upon his
1
release, ICE officials took him into federal custody. He was indicted months later. Eight
months after that, ICE informed prosecutors of the following: Lopez-Carrera was the
subject of a final removal order; his immigration appeals had been denied; and he would
be removed from the country to Guatemala. In his immigration appeal, Lopez-Carrera
unsuccessfully sought a continuance to allow his criminal charges to be resolved.
The State promptly moved to revoke Lopez-Carrera’s pretrial release based on the
change in circumstances. The trial court denied the motion, relying on the Appellate
Division’s recently published decision in Molchor. The Appellate Division affirmed.
The State contacted ICE and asked for permission to apply for deferred action or an
administrative stay of removal to delay Lopez-Carrera’s removal from the country.
Counsel for ICE responded that the removal could not be delayed. The Court granted
leave to appeal. 244 N.J. 189 (2020). One month later, Lopez-Carrera was removed
from the United States to Guatemala. The Court considers his appeal nonetheless
because it raises an issue of significant public importance that is likely to recur.
HELD: The CJRA favors pretrial release over detention; it authorizes judges to detain
defendants when the State has shown, by clear and convincing evidence, that no
conditions of release would reasonably assure the eligible defendant’s appearance in
court when required, would protect the public, or would prevent the defendant from
obstructing the criminal justice process. To make that determination, the Act directs
judges to conduct an individualized assessment of the level of risk each defendant
presents in light of their own conduct, history, and characteristics. The Act does not seek
to detain defendants whose behavior poses a minimal level of risk, which describes all
three defendants here. Nor does the CJRA cede control over pretrial release decisions to
outside agencies. The statute’s primary focus is on a defendant’s behavior and choices,
and the risk they present. The language, structure, purpose, and history of the CJRA
reveal the Act was designed to address a defendant’s own choice not to appear in court,
not independent actions by third parties like ICE. The Court agrees with the Appellate
Division that the CJRA does not authorize judges to detain defendants to thwart their
possible removal by ICE.
1. The CJRA favors release with conditions, with detention reserved for defendants who
pose a significant risk of non-appearance, danger, or obstruction. N.J.S.A. 2A:162-15,
-17, -18. To enable judges to decide whether to release an individual, the CJRA provides
for a careful, objective evaluation of the level of risk each defendant presents, taking into
account information that relates largely to a defendant’s conduct, history, and
characteristics. See id. at -20. Pretrial Services officers are required to conduct an
individualized risk assessment for each eligible defendant to make a recommendation to
the court. State v. Robinson, 229 N.J. 44, 56 (2017) (citing N.J.S.A. 2A:162-25(b)). To
that end, the Act directed that an objective risk assessment instrument be 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
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release.” N.J.S.A. 2A:162-26(c)(1). The risk assessment instrument considers nine
factors that also relate to a defendant’s behavior, history, and characteristics. See
Robinson, 229 N.J. at 62. With those objective details and other relevant information,
Pretrial Services prepares a PSA that assesses a defendant’s level of risk for failure to
appear and for new criminal activity. The PSA also recommends whether to release a
defendant, and if so, what conditions of release to impose. Ibid. (pp. 18-22)
2. To determine whether the CJRA authorizes judges to detain defendants who face
possible removal, the Court begins with the Act’s plain language, which provides for
detention when no combination of conditions “would reasonably assure the eligible
defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1) (emphasis
added). The CJRA does not specifically address whether or how judges may consider the
intervention of immigration officials, but its text is revealing in other ways. (pp. 23-24)
3. “Appearance” commonly involves action. A defendant’s “appearance in court” thus
commonly refers to the voluntary act of showing up. Reading the term in the context of
the Act reinforces that “appearance” implies a voluntary act by the defendant. First, the
other two grounds for detention set forth in N.J.S.A. 2A:162-18(a)(1) -- the risk the
defendant might harm someone or obstruct justice -- plainly refer to a defendant’s
voluntary behavior, permitting the inference that “appearance” likewise refers to a
defendant’s voluntary act. Second, the risk assessment tool and the statutory factors in
N.J.S.A. 2A:162-20 focus on the behavior, characteristics, and history of each defendant.
Third, N.J.S.A. 2A:162-20(c)(1) invites judges deciding whether to detain a defendant
pretrial to consider a defendant’s “record concerning appearance at court proceedings.”
That relates directly to a defendant’s prior voluntary conduct and sheds light on the
meaning of the words in section 18, as well as the Legislature’s intent. (pp. 24-26)
4. To discern the intent of the Legislature, the Court also considers the meaning of the
phrase “appearance in court when required,” N.J.S.A. 2A:162-18(a)(1), in light of the
statute’s overall scheme and purpose. At the outset of the CJRA, the Legislature declared
the law “shall be liberally construed to effectuate the purpose of primarily relying upon
pretrial release by non-monetary means.” N.J.S.A. 2A:162-15. The Act reserves
detention for defendants who pose a serious risk of non-appearance, danger, or
obstruction. See ibid. Moreover, the Act empowers judges to implement its framework
and decide the question of pretrial release. (pp. 26-27)
5. The State argues that pretrial detention is justified when a defendant’s risk of removal
is certain and imminent. If that were the case, defendants could be detained no matter the
nature and circumstances of their eligible offense, the strength of the evidence against
them, their record of appearing in court in the past, their ties to and length of residence in
the community, their past conduct, or other considerations the Legislature outlined. See
N.J.S.A. 2A:162-20. To be clear, here the Court considers individuals who would not
otherwise be subject to pretrial detention. Under the State’s argument, which assumes
3
that one can be certain when removal is imminent, the single determining factor would be
whether immigration officials appeared likely to succeed in their efforts to remove an
individual. Such an approach would effectively cede decisions on pretrial release to an
outside agency and remove that authority from judges. Trial judges in those cases would
in essence be compelled to enter an order of detention. The CJRA, as written, does not
provide for that. In the language, structure, and purpose of the CJRA, the Court finds
evidence that the Legislature intended to authorize pretrial detention when there is clear
and convincing evidence that individual defendants pose a serious risk of non-appearance
based on their own conduct, not the acts of third parties like ICE. (pp. 27-29)
6. The Legislature did not debate whether decisions by immigration officials could form
the basis for pretrial detention. Three strands in the historical record, however, do shed
light on the issue, and two of them imply that an order of detention should be based on a
defendant’s own behavior. The Court reviews all three strands in detail. (pp. 29-36)
7. The Court does not rely on case law that interprets the federal Bail Reform Act. The
federal act differs from the CJRA in this area in two ways, including by expressly
providing for consideration of immigration status. See 18 U.S.C. § 3142(d). The New
Jersey Legislature declined to address immigration status in the CJRA despite looking to
the federal act as a model. In the end, the issue here is about the interpretation of a state
statute. The question is not whether the sovereign had the power to act; it is what the law
-- as written -- actually authorizes. (pp. 36-37)
8. Another important concern influences the Court’s analysis. A bedrock principle of
our system of justice is that individuals charged with a crime are presumed innocent. For
like reasons, “[i]n our society liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755
(1987). Detention statutes must be narrowly drawn to live up to those basic principles.
Id. at 749-50. The Court reviews arguments about the complexities of the removal
process and difficulties in predicting the likelihood of deportation, concluding that one
thing seems apparent: If the Legislature were to ask judges to consider the likelihood of
removal when they decide detention motions, it would be quite challenging to make
accurate predictions. Yet judges can order detention only if they find that “clear and
convincing evidence” requires that outcome. N.J.S.A. 2A:162-18(a). The legal standard
and the realities of immigration proceedings are not easily reconciled. (pp. 37-40)
9. The Appellate Division correctly remanded the cases involving defendants Molchor
and Rios to the trial court. At a hearing on remand, just as at an initial detention hearing,
trial courts consider a host of factors to assess whether a defendant presents a risk of non-
appearance. N.J.S.A. 2A:162-20. A defendant’s family ties, length of residence in the
community, and community ties all bear on the risk that an individual might choose not
to appear in court. Ibid. Ties to another country can likewise inform a court’s decision.
But a person’s immigration status alone cannot be dispositive. Courts must engage in a
4
fact-specific inquiry that looks beyond status because each person’s circumstances --
citizens and non-citizens alike -- are different. Non-citizens who have lived here for
years, gone to school here, raised families here, and established roots in their
communities may pose only a minimal risk of non-appearance. Other non-citizens who
arrived recently and have no such connections may pose a much greater risk of
non-appearance. In State v. Fajardo-Santos, 199 N.J. 520, 531-32 (2009), the Court
invited an inquiry into how non-citizen defendants facing immigration action will decide
to respond to their obligation to appear in court, a question that status alone does not
answer. But Fajardo-Santos pre-dates the CJRA and is not an interpretive aid for either
the Act or the issue now on appeal. (pp. 40-43)
10. The Attorney General could not estimate how many non-citizen defendants who are
not detained are deported each year. The State conceded the concern involves “a
relatively small total number of cases” in the overall context of pretrial release.
Prosecutors can and do seek to defer action and stay removal in appropriate cases so that
the criminal process can be completed. It would be preferable for ICE to refrain from
deporting defendants while they await trial for many reasons. If removal proceedings
occur while a case is pending, the Court urges ICE officials to work with prosecutors to
allow pending criminal charges to be resolved. (pp. 43-44)
The judgment of the Appellate Division is AFFIRMED in both matters.
JUSTICE ALBIN disagrees with the Court’s holding on the grounds that it
preempts the State’s sovereign authority to prosecute certain defendant aliens for offenses
committed in New Jersey and denies crime victims their rights. Justice Albin does not
suggest that a detention order can be entered solely because of an alien’s status but finds
it a different matter when a final order of removal has been entered, no appeals are
pending, and ICE has reported that a defendant’s removal from the country is certain and
imminent. In those circumstances, Justice Albin writes, the State has met its burden that
no condition of release “would reasonably assure the eligible defendant’s appearance in
court when required.” N.J.S.A. 2A:162-18(a)(1). In Justice Albin’s view, that common-
sense interpretation is consistent with the objectives of the CJRA, the State’s exercise of
its sovereign power, and New Jersey’s Victim’s Rights Amendment and Crime Victim’s
Bill of Rights. Justice Albin concludes that it is now for the Legislature to determine
whether, in passing the CJRA, it intended to strip state courts of the power to enter
detention orders that would prevent the removal of defendant aliens charged with
committing crimes in New Jersey.
JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON
join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN, joined by
JUSTICE PIERRE-LOUIS, filed a dissent in Lopez-Carrera and concurred in the
judgment in Molchor and Rios.
5
SUPREME COURT OF NEW JERSEY
A-8 September Term 2020
A-9 September Term 2020
084750 and 084694
State of New Jersey,
Plaintiff-Appellant,
v.
Oscar Lopez-Carrera,
Defendant-Respondent.
State of New Jersey,
Plaintiff-Appellant,
v.
Juan C. Molchor,
Defendant-Respondent.
_______________________________________________________________
State of New Jersey,
Plaintiff-Appellant,
v.
Jose A. Rios,
Defendant-Respondent.
1
State v. Oscar Lopez-Carrera (A-8-20):
On appeal from the Superior Court,
Appellate Division.
State v. Juan C. Molchor; State v. Jose A. Rios
(A-9-20): On appeal from the Superior Court,
Appellate Division, whose opinion is reported at
464 N.J. Super. 274 (App. Div. 2020).
Argued Decided
November 30, 2020 March 30, 2021
Paul Heinzel, Assistant Prosecutor, argued the cause for
appellant in State v. Lopez-Carrera (A-8-20) (Michael H.
Robertson, Somerset County Prosecutor, attorney; Paul
Heinzel, of counsel and on the briefs).
Andrew R. Burroughs argued the cause for respondent in
State v. Lopez-Carrera (A-8-20) (Bastarrika, Soto,
Gonzalez & Somohano, attorneys; Andrew R. Burroughs,
John T. Somohano, and Jerard A. Gonzalez, on the
briefs).
Dana R. Anton, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for appellant in
State v. Molchor; State v. Rios (A-9-20) (Christine A.
Hoffman, Acting Gloucester County Prosecutor, attorney;
Dana R. Anton, of counsel and on the briefs).
Tamar Y. Lerer, Assistant Deputy Public Defender
argued the cause for respondent Jose A. Rios in State v.
Molchor; State v. Rios (A-9-20) (Joseph E. Krakora,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the briefs).
Cristina L. Vazquez argued the cause for respondent Juan
C. Molchor in State v. Molchor; State v. Rios (A-9-20)
(Cristina L. Vazquez, on the brief).
2
Sarah C. Hunt, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
in State v. Lopez-Carrera (A-8-20) and State v. Molchor;
State v. Rios (A-9-20) (Gurbir S. Grewal, Attorney
General, attorney; Sarah C. Hunt, of counsel and on the
briefs).
Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey in State v.
Molchor; State v. Rios (A-9-20) (American Civil
Liberties Union of New Jersey Foundation, attorneys;
Alexander Shalom, on the brief).
Joanne Gottesman argued the cause for amici curiae
Immigration Law Scholars and Clinical Professors in
State v. Molchor; State v. Rios (A-9-20) (Rutgers Law
School Immigrant Justice Clinic, Boston College Legal
Services Civil Rights Clinic, and the Cardozo School of
Law Kathryn O. Greenberg Immigration Justice Clinic,
attorneys; Joanne Gottesman, Reena Parikh, Haiyun
Damon-Feng, of the Washington bar, practicing pursuant
to R. 1:21-3(c), and Mauricio E. Norõna, of the New
York bar, admitted pro hac vice, on the brief).
Michael Noriega submitted a brief on behalf of amicus
curiae Association of Criminal Defense Lawyers of New
Jersey in State v. Lopez-Carrera (A-8-20) and State v.
Molchor; State v. Rios (A-9-20) (Bramnick Rodriguez
Grabas Arnold & Mangan, attorneys; Michael Noriega,
on the brief, and Cristina Carreno, of counsel and on the
brief).
Richard D. Pompelio submitted a brief on behalf of
amicus curiae New Jersey Crime Victims’ Law Center in
State v. Lopez-Carrera (A-8-20) (New Jersey Crime
Victims’ Law Center, attorneys; Richard D. Pompelio, of
counsel and on the brief).
Eric M. Mark submitted a brief on behalf of amicus
curiae American Immigration Lawyers Association –
3
New Jersey Chapter in State v. Molchor; State v. Rios
(A-9-20) (Eric M. Mark, on the brief).
CJ Griffin submitted a brief on behalf of amici curiae
Make the Road New Jersey, Bangladeshi American
Women’s Development Initiative, Fair and Welcoming
Communities Coalition of Somerset County, Faith in
New Jersey, First Friends of New Jersey and New York,
International Justice Project, MomsRising, National
Coalition of Latino Officers, LatinoJustice PRLDEF,
Latino American Legal Defense and Education Fund,
Law Enforcement Action Partnership, Volunteer Lawyers
for Justice, and Wind of the Spirit in State v. Molchor;
State v. Rios (A-9-20) (Pashman Stein Walder Hayden,
attorneys; CJ Griffin and Rachel E. Simon, on the brief).
Raquiba Huq submitted a brief on behalf of amicus curiae
Legal Services of New Jersey in State v. Molchor; State
v. Rios (A-9-20) (Legal Services of New Jersey,
attorneys; Raquiba Huq, Rachel Salazar, and Melville D.
Miller, Jr., on the brief).
Jennifer B. Condon submitted a brief amici curiae on
behalf of National Immigration Project of the National
Lawyers Guild, Immigrant Defense Project, and Harvard
Law School Crimmigration Clinic in State v. Molchor;
State v. Rios (A-9-20) (Seton Hall Law School Center for
Social Justice, attorneys; Jennifer B. Condon, on the
brief).
Susan G. Roy submitted a brief on behalf of amici curiae
Round Table of Former Immigration Judges and Former
Board of Immigration Appeals Members in State v.
Molchor; State v. Rios (A-9-20) (Law Office of Susan G.
Roy, attorneys; Susan G. Roy, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
4
These consolidated appeals present a straightforward question: whether
the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26,
empowers judges to detain defendants who are non-citizens to prevent
immigration officials from removing them from the country before trial. 1 The
statute does not directly answer the question, and the Legislature did not
debate the issue. But the language, structure, purpose, and history of the
CJRA reveal the Act was designed to address a defendant’s own choice not to
appear in court, not independent actions by third parties like the U.S.
Immigration and Customs Enforcement (ICE).
The CJRA favors pretrial release of defendants over detention. Id.at -15, -17. The law authorizes judges to detain defendants when the State has
shown, by clear and convincing evidence, that no conditions of release “would
reasonably assure the eligible defendant’s appearance in court when required,”
would protect the public, or would prevent the defendant from obstructing the
criminal justice process. Id. at -18(a) (emphasis added). In other words,
judges may detain defendants who present a substantial risk in any of those
areas.
1
We use the term “non-citizens” in this opinion to refer to individuals who
are subject to removal under federal law. The word includes undocumented
individuals as well as people who entered the country lawfully but are now in
the United States in violation of federal law.
5
To make that determination, the Act directs judges to conduct an
individualized assessment of the level of risk each defendant presents in light
of their own conduct, history, and characteristics. See State v. Robinson, 229
N.J. 44, 54 (2017); N.J.S.A. 2A:162-20. The Act does not seek to detain
defendants whose behavior poses a minimal level of risk, which describes all
three defendants involved in these appeals. Nor does the CJRA cede control
over pretrial release decisions to outside agencies. The statute’s primary focus
is on a defendant’s behavior and choices, and the risk they present.
The language the Legislature placed in the CJRA supports that
conclusion. The key word, “appearance,” commonly points to acts or actions
people choose to take, not decisions by others that may prevent someone from
acting. Related provisions elsewhere in the Act, which offer context, reinforce
the law’s focus on a defendant’s own conduct.
Parts of the legislative history likewise emphasize a defendant’s
voluntary behavior as the basis for pretrial detention. For example, a report on
criminal justice reform that the Legislature relied on, as well as an interpretive
statement for the voters that accompanied the proposed constitutional
amendment to allow for pretrial detention, both focus on a defendant’s
choices, not conduct by others, as grounds for detention. The State and the
Attorney General contend that an amendment to an earlier draft of the bill
6
conclusively demonstrates the Legislature authorized detention of defendants
who might fail to appear in court through no act of their own. It does not.
Other reasons more persuasively account for the amendment, which the
Legislature itself did not explain.
Here, the question before the Court affects a relatively small number of
cases. All of them involve individuals who would not otherwise be detained as
high-risk defendants. In other words, the cases involve people whose own
behavior and history do not present a serious risk of non-appearance, danger,
or obstruction. Individuals would be detained solely because of their
immigration status and the risk ICE might remove them -- a risk that is
difficult to measure because removal decisions are highly discretionary and
involve complex legal issues.
The record reveals the Legislature did not discuss or set a policy for
those individuals. Although the Legislature looked to the federal Bail Reform
Act when it drafted the CJRA, it chose not to include language about
immigration status that appears in the federal statute.
Courts are obligated to give effect to the Legislature’s intent, not to craft
a policy on an issue the Legislature has not addressed. See State v. S.B., 230
N.J. 62, 67-68 (2017). We agree with the Appellate Division that the language
of the Act, coupled with its history, does not authorize judges to detain
7
defendants to thwart their possible removal by ICE. We therefore affirm the
judgment of the Appellate Division.
Federal law provides for coordination between federal prosecutors and
immigration officials after a non-citizen is arrested. 18 U.S.C. § 3142(d). Our
criminal justice system functions best when the State has an opportunity to
present its proofs to try to enforce the law, when defendants who stand accused
can defend themselves in court, and when victims and witnesses can be heard
and treated with dignity and respect. We therefore encourage ICE to
coordinate with State prosecutors and allow the criminal justice system to
complete its work while charges are pending against non-citizens in state
court.
I.
A.
On January 8, 2020, defendants Juan Molchor and Jose Rios were
arrested and charged with second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1), and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). They
allegedly punched and struck an acquaintance over the head with beer bottles
at a party. The victim reportedly suffered a severe laceration and lost
consciousness. As defendants left the party, they allegedly damaged two cars.
8
Pretrial Services prepared Public Safety Assessments (PSAs) for both
defendants. The PSAs rated both defendants 1 out of 6 for failure to appear,
the lowest level of risk, and 2 out of 6 for new criminal activity. Neither
defendant had any pending charges, prior convictions, prior failures to appear,
or prior juvenile adjudications. Pretrial Services recommended that both
defendants be released with monthly reporting as a condition.
The State moved for pretrial detention in each case. The State claimed
defendants posed a flight risk because they were undocumented immigrants.
Although the State presented no evidence that ICE was interested in either
defendant, the prosecutor argued that if they were detained by ICE, the victim
would be deprived of any relief. The State also claimed defendants might
retaliate against the victim because they lived within five minutes of him.
Defense counsel stressed defendants’ clean history and low risk scores
and asked the court to release both individuals. Counsel added that release
conditions could include a no-contact order to protect the victim. In the case
of defendant Molchor, counsel emphasized it was “extremely unfair” for the
State to “dangl[e]” the possibility of an ICE detainer without having contacted
ICE.
The trial court ordered Molchor and Rios detained pretrial. The court
observed that Rios was “an admitted, undocumented illegal alien which raises
9
major concerns for whether he’s going to be here to answer to these charges.”
The court made similar comments about Molchor. But for their immigration
status, the court noted, both defendants would likely have been released. The
judge also referred to the seriousness of the charges and expressed concerns
about contact with the victim. In both written detention orders, the court
included a single finding of fact to justify detention: “Particular
circumstances, specifically, defendant is an illegal alien.”
Defendants appealed, and the Appellate Division consolidated the two
cases. In a thoughtful opinion by Judge Ostrer, the Appellate Division
reversed and remanded both cases. State v. Molchor, 464 N.J. Super. 274, 280
(App. Div. 2020). In short, the Appellate Division concluded that “the risk of
a defendant’s failure to appear justifying detention [under the CJRA] must
arise from the defendant’s own misconduct, not the independent acts of a
separate arm of government.” Ibid.The court found that the Act’s plain language did not resolve the issue
but, when read in context, could be “plausibly construe[d] . . . to require a
defendant’s volitional act” to justify detention. Id. at 289 (noting that other
grounds for detention set forth in N.J.S.A. 2A:162-18 -- threatening safety or
obstructing the criminal justice process -- require volitional acts).
10
The court also relied on the language of the interpretive statement to the
constitutional amendment, which referred to a defendant’s “return” to court --
a volitional act. Id. at 290 (citing S. Con. Res. 128, 216th Leg. (2014)). The
Appellate Division found that a report of the Joint Committee on Criminal
Justice, which the Legislature cited, lent further support in that the report
focused on a defendant’s pretrial misconduct as a way to measure a person’s
risk level. Ibid. The report notably equated “nonappearance” and “flight” as a
single form of misconduct to be considered. Id. at 291.
The Appellate Division was not persuaded that an amendment to the bill
-- which replaced a reference that a defendant “will flee” with “will not appear
in court as required” -- implied that the Legislature intended “to authorize
detention to manage the risk of a defendant’s non-volitional failure to appear.”
Id. at 292. The Legislature did not explain the reason for the change, which
“[c]onceivably” was meant to allow prosecutors to seek detention when
defendants chose not to appear but did not flee. Ibid.In addition, the court found support in federal case law that interpreted
the federal Bail Reform Act. Id. at 293-95. Among other cases, the court cited
United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015), for its
holding that “the risk of nonappearance referenced in 18 U.S.C. § 3142 must
involve an element of volition.”
11
In the end, the Appellate Division “conclude[d] that the Legislature . . .
intended that a defendant may be detained based on the risk of non-appearance
only if it arises from the defendant’s own misconduct or volitional act” -- and
not “to thwart federal immigration action.” Molchor, 464 N.J. Super. at 296.
The court remanded both cases for reconsideration and directed the trial
judge “to weigh the risk of non-appearance arising only from defendants’ own
potential misconduct or volitional acts.” Id. at 297. The Appellate Division
also vacated the trial court’s finding “that defendants posed an unmanageable
risk” of retaliation to the alleged victim, which the record did not support, or
that Rios posed a risk of danger. Ibid.
On July 10, 2020, after new detention hearings, Molchor and Rios were
both released on conditions. The Appellate Division and this Court denied the
State’s emergent applications for a stay. The State’s motion for a stay in the
ordinary course was denied by both courts as well.
We granted the State’s motion for leave to appeal. 244 N.J. 187 (2020).
The Attorney General and the American Civil Liberties Union of New Jersey
(ACLU) appeared as amici curiae before the Appellate Division and continued
to participate in this appeal. See R. 1:13-9(d). We also granted a number of
individual and joint applications to appear as amicus curiae.
12
B.
On June 12, 2019, defendant Oscar Lopez-Carrera was charged in a
complaint with second-degree attempted sexual assault, N.J.S.A. 2C:5-1(a)(1)
and 2C:14-2(c)(4), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-
3(b). The charges related to an alleged attempted sexual assault of a minor.
On or about the same day, ICE lodged a detainer against Lopez-Carrera.2
Like Molchor and Rios, Lopez-Carrera had no prior convictions or other
pending charges, and no prior failures to appear. The PSA rated him at the
lowest level of risk, 1 out of 6, for both failure to appear and new criminal
activity. Pretrial Services recommended that Lopez-Carrera be released on his
own recognizance.
The State did not initially move for pretrial detention, and Lopez-Carrera
was released on conditions on June 13, 2019. Immediately upon his release
from county jail, ICE officials took him into federal custody, where he
remained afterward. A grand jury in Somerset County returned an indictment
against defendant for essentially the same charges on October 2, 2019.
2
An ICE detainer “serves to advise another law enforcement agency that
[ICE] seeks custody of an alien presently in the custody of that agency, for the
purpose of arresting and removing the alien. The detainer is a request that
such agency advise [ICE], prior to release of the alien, in order for [ICE] to
arrange to assume custody . . . .” 8 C.F.R. § 287.7(a).
13
Eight months later, on June 9, 2020, ICE informed prosecutors of the
following: Lopez-Carrera was the subject of a final removal order; his
immigration appeals had been denied; and he would be removed from the
country to Guatemala. In his immigration appeal, Lopez-Carrera
unsuccessfully sought a continuance to allow his criminal charges to be
resolved.
The State promptly moved to revoke Lopez-Carrera’s pretrial release on
June 11, 2020 based on the change in circumstances, pursuant to Rule
3:4A(b)(3). On July 16, 2020, the trial court denied the motion. Relying on
the Appellate Division’s recently published decision in Molchor, the trial court
explained that Lopez-Carrera’s risk of non-appearance arose from the federal
government’s intervention, not defendant’s own volitional acts.
The same day, the State sought leave to file an emergent appeal and
certified that Lopez-Carrera would be deported to Guatemala on the next
available flight. The Appellate Division granted leave to appeal and
summarily affirmed the trial court’s order, citing Molchor. We denied the
State’s emergent application for a stay on July 24, 2020.
The State then contacted ICE and asked for permission to apply for
deferred action or an administrative stay of removal to delay Lopez-Carrera’s
14
removal from the country. Counsel for ICE responded that the removal could
not be delayed.
We granted leave to appeal on September 21, 2020. 244 N.J. 189(2020). We also granted several applications to appear as amicus curiae.
On October 21, 2020, Lopez-Carrera was removed from the United
States to Guatemala. We consider his appeal nonetheless because it raises an
issue “of significant public importance [that] is likely to recur.” State v.
Cassidy, 235 N.J. 482, 491 (2018) (quoting State v. Gartland, 149 N.J. 456,
464 (1997)).
II.
Because the parties’ arguments are substantially similar in all three
cases, we consider them together.
The State argues that the Appellate Division improperly imposed a
volitional act requirement on the CJRA, which neither the plain language nor
the legislative history of the statute established. Such a requirement, the State
contends, would allow defendants to be removed before they could be brought
to justice. The State argues that when a defendant’s deportation becomes
“certain and imminent,” pretrial detention is warranted to “reasonably assure
the eligible defendant’s appearance in court,” consistent with N.J.S.A. 2A:162-
18(a). The State, as well as other advocates, offers a multi-part test to
15
determine when removal is sufficiently certain and imminent to justify
detention.
The Attorney General, as an amicus, largely echoes the State’s position.
The Attorney General stresses that courts should focus on the likelihood that a
defendant will appear at trial, not who is to blame for a defendant’s failure to
appear.
Defendants counter that the Appellate Division properly interpreted the
CJRA. They contend that the risk of non-appearance in the statute does not
encompass the risk of deportation; it extends only to the risk that a defendant
will voluntarily choose to not appear. Defendants add that state court judges
are not equipped to evaluate the risk of deportation because of the complexities
of immigration law and the immense amount of discretion ICE has.
The ACLU supports defendants’ position. The ACLU emphasizes the
Act does not permit pretrial detention on the basis that defendants may be
forced to miss a court date against their will. The ACLU also contends that
allowing pretrial detention based solely on immigration status raises serious
constitutional concerns.
The Association of Criminal Defense Lawyers of New Jersey, as amicus,
likewise agrees with the Appellate Division’s analysis. In addition, the
16
Association asks the Court to adopt a rule that would permit defendants subject
to removal to stipulate to pretrial detention.
Other amici presented thoughtful submissions as well. The New Jersey
Crime Victims’ Law Center, like the State, argues that the Appellate
Division’s ruling will result in manifest injustice to victims and fails to respect
their rights.
A group of fifty immigration law scholars and clinical professors
(Professors), and a second group of twenty-five former immigration judges and
members of the Board of Immigration Appeals (Former Judges), submitted
comprehensive overviews of the immigration process. They highlight the
complex, dynamic, and discretionary nature of the removal process and argue
that state trial courts are ill-equipped to evaluate a defendant’s likelihood of
removal, which is too speculative even for experts to predict. They submit that
a civil immigration detainer, like an individual’s immigration status, is not a
reliable indicator that a person will be removed from the country.
The American Immigration Lawyers Association (AILA) and the
National Immigration Project of the National Lawyers Guild, the Immigrant
Defense Project, and the Harvard Law School Crimmigration Clinic echo
concerns about how difficult it is to forecast the risk of removal for a non-
citizen. AILA adds that permitting pretrial detention based on a person’s risk
17
of removal will have the disproportionate effect of incarcerating low-level
offenders, the vast majority of whom are recommended for release under the
CJRA.
Finally, Legal Services of New Jersey (LSNJ) and Make the Road New
Jersey, joined by twelve other organizations (Make the Road), highlight the
consequences of pretrial detention for non-citizens, their families, and their
communities. LSNJ also challenges the need for pretrial detention given the
avenues non-citizens have to resolve their criminal cases while in ICE custody.
Make the Road adds that allowing pretrial detention based on immigration
status undermines trust in law enforcement in immigrant communities and
makes it harder for law enforcement to investigate and prosecute crimes.
III.
The CJRA marked a significant change in New Jersey’s approach to
pretrial release. Previously, the criminal justice system relied heavily on the
use of monetary bail. The new law favors release with conditions, with
detention reserved for defendants who pose a significant risk of non-
appearance, danger, or obstruction. N.J.S.A. 2A:162-15, -17, -18.
To enable judges to decide whether to release an individual, the CJRA
provides for a careful, objective evaluation of the level of risk each defendant
presents. See Robinson, 229 N.J. at 54. We reviewed the Act’s purpose and
18
provisions in Robinson. See id. at 52-62. In this appeal, we briefly recount
aspects of the CJRA that concern pretrial detention.
As noted earlier, the Act relies primarily on pretrial release,
accompanied by non-monetary conditions, to “reasonably assure” three aims:
(1) a defendant’s “appearance in court when required”; (2) that the defendant
will not endanger “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:162-15. When a prosecutor files a motion, a court may
order pretrial detention if it finds by “clear and convincing evidence” that no
combination of conditions would reasonably achieve those aims. N.J.S.A.
2A:162-15, -18(a).
A prosecutor may seek pretrial detention when a defendant has been
charged with one of a number of serious offenses listed in the statute. See
N.J.S.A. 2A:162-19(a)(1) to (a)(6). In addition, prosecutors can move for
pretrial detention for any other offense if -- tracking the above language -- they
“believe[] there is a serious risk that” the defendant “will not appear in court
as required,” “will pose a danger to any other person or the community,” or
“will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate,
or attempt to threaten, injure or intimidate, a prospective witness or juror.”
N.J.S.A. 2A:162-19(a)(7).
19
To assess a motion for detention, the trial court “may take into account
information” that relates largely to a defendant’s conduct, history, and
characteristics:
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 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;
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
20
f. The release recommendation of the pretrial services
program obtained using a risk assessment
instrument . . . .
[N.J.S.A. 2A:162-20.]
Section 25 of the Act establishes a statewide Pretrial Services Program.
Pretrial Services officers are required to conduct an individualized risk
assessment for each eligible defendant in order to make a recommendation to
the court. Robinson, 229 N.J. at 56 (citing N.J.S.A. 2A:162-25(b)). To that
end, the Act directed that an objective risk assessment instrument be 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” -- for Pretrial Services officers to use. N.J.S.A.
2A:162-26(c)(1).
The risk assessment instrument considers nine factors that also relate to
a defendant’s behavior, history, and characteristics:
(1) the defendant’s age at the time of the current
offense; (2) whether the offense is violent and, if so,
whether the defendant is age 20 or older; (3) any
additional pending charge(s) at the time of the current
offense; and whether the defendant has any prior (4)
disorderly persons convictions, (5) indictable
convictions, (6) violent convictions, (7) failures to
appear pretrial in the past two years or (8) more than
two years ago, or (9) sentences of incarceration of
fourteen days or more.
21
[Robinson, 229 N.J. at 62.]
With the above objective details and other relevant information, Pretrial
Services prepares a PSA that assesses a defendant’s level of risk on two scales:
for failure to appear and for new criminal activity. Ibid. The PSA also
recommends whether to release a defendant, and if so, what conditions of
release to impose. Ibid. Once again, section 20 of the Act expressly
authorizes a court to consider “[t]he release recommendation of the pretrial
services program obtained using [the] risk assessment instrument.” N.J.S.A.
2A:162-20(f).
IV.
We rely on settled principles of statutory construction to determine the
meaning and scope of the CJRA.
The goal of all statutory interpretation is “to determine and give effect to
the Legislature’s intent.” In re Registrant H.D., 241 N.J. 412, 418 (2020)
(quoting DYFS v. A.L., 213 N.J. 1, 20 (2013)). Courts start with the plain
language of the statute, “which is typically the best indicator of intent.” State
v. McCray, 243 N.J. 196, 208 (2020) (quoting In re T.B., 236 N.J. 262, 274
(2019)). And courts must give words “their generally accepted meaning.”
N.J.S.A. 1:1-1.
22
A statute’s words and phrases should also “be read and construed with
their context.” Ibid. We do not read them in isolation; we instead consider
“them in context with related provisions so as to give sense to the legislation
as a whole.” DiProspero v. Penn, 183 N.J. 477, 492 (2005).
If the language of a statute is clear, a court’s task is complete. McCray,
243 N.J. at 208. If the text is ambiguous, courts may consider extrinsic
materials, including legislative history, committee reports, and other sources,
to discern the Legislature’s intent. In re Ridgefield Park Bd. of Educ., 244
N.J. 1, 18 (2020).
V.
A.
To determine whether the CJRA authorizes judges to detain defendants
who face possible removal by immigration officials, we begin with the plain
language of the Act. Once again, the relevant text provides for detention when
no combination of conditions “would reasonably assure the eligible
defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1)
(emphasis added).
Unlike the law’s federal counterpart, which we briefly consider later, the
CJRA does not specifically address whether or how judges may consider the
intervention of federal immigration officials. Cf. 18 U.S.C. § 3142(d)(1)(B)
23
(authorizing federal judges to temporarily detain certain non-citizens who may
flee or pose a danger, for up to ten days, so that immigration officials can
decide whether to take the person into custody during that time). The CJRA’s
text is revealing in other ways, though, starting with the ordinary meaning of
the language the Legislature used.
“Appearance” commonly involves action. Webster’s Third New
International Dictionary, for example, defines the term as “the act, action or
process of appearing” -- as in, “the act or action of coming before the public,”
“the act or action of coming formally before an authoritative body,” “the
coming into court of either of the parties to a suit,” and “the coming into court
of a party summoned in an action.” Webster’s Third New Int’l Dictionary
(Unabridged) 103 (1981); see also Black’s Law Dictionary 122 (11th ed. 2019)
(defining “appearance” as “[a] coming into court as a party or interested
person . . . esp., a defendant’s act of taking part in a lawsuit”); Ballentine’s
Law Dictionary 82 (3d ed. 1969) (defining “appearance” as “the overt act by
which [a defendant] submits himself to the court’s jurisdiction”).
A defendant’s “appearance in court” thus commonly refers to the
voluntary act of showing up. Consistent with N.J.S.A. 1:1-1, words and
phrases in a statute must not only be given their “generally accepted meaning,”
24
they must also be considered in context. Viewed in that way, the use of
“appearance” in the CJRA again implies a voluntary act by the defendant.
The statute lists three grounds for detention in a single sentence: to
reasonably assure a “defendant’s appearance in court,” “the protection” of the
public, and “that the eligible defendant will not obstruct or attempt to obstruct
the criminal justice process.” N.J.S.A. 2A:162-18(a)(1). The second and third
phrases plainly refer to a defendant’s voluntary behavior -- the risk the
defendant might harm someone or obstruct justice. Those phrases offer
context for the word “appearance” and permit an inference that the term
likewise refers to a defendant’s voluntary act of showing up in court as
required. See Molchor, 464 N.J. Super. at 289.
Other parts of the statute reinforce the conclusion that the Act addresses
a defendant’s own choices. The law is painstakingly designed to measure and
manage the level of risk each defendant presents. In that regard, as discussed
earlier, the CJRA called for the development of a nuanced risk assessment
instrument “based on analysis of empirical data and risk factors relevant to the
risk of failure to appear in court,” among other concerns. N.J.S.A. 2A:162-
25(c)(1). The tool, as noted, assesses the behavior, characteristics, and history
of each defendant. See Robinson, 229 N.J. at 62. Neither the tool nor the
25
statutory factors listed in section 20 of the CJRA measure actions by third
parties such as ICE. See ibid.; N.J.S.A. 2A:162-20.
The factors the Legislature included in section 20 likewise call upon
judges to consider a defendant’s conduct, history, and relationships. One
factor is particularly telling. The law invites judges, when they are deciding
whether to detain a defendant pretrial, to consider a defendant’s “record
concerning appearance at court proceedings.” N.J.S.A. 2A:162-20(c)(1)
(emphasis added). Here, more plainly than in section 18, the phrase the
Legislature repeated relates directly to a defendant’s prior voluntary conduct.
The related language in section 20 sheds light on the meaning of the words in
section 18 -- and on the Legislature’s intent. See Gilleran v. Township of
Bloomfield, 227 N.J. 159, 172 (2016) (noting statutory words should be
considered in context with related provisions).
B.
To discern the intent of the Legislature, we also consider the meaning of
the phrase “appearance in court when required,” N.J.S.A. 2A:162-18(a)(1), in
light of the statute’s overall scheme and purpose, see Merin v. Maglaki, 126
N.J. 430, 436 (1992).
At the outset of the CJRA, the Legislature declared the law “shall be
liberally construed to effectuate the purpose of primarily relying upon pretrial
26
release by non-monetary means.” N.J.S.A. 2A:162-15. Defendants charged
with certain eligible, serious offenses can be held in custody. Id. at -19(a)(1)
to (a)(6).3 In those serious matters, a judge, after considering various relevant
factors, must find clear and convincing evidence to justify detention. See id. at
-18(a)(1), -18(b), -19, -20. A presumption of detention, which can be rebutted,
exists only for cases in which the court finds probable cause that defendants
committed murder or a crime that subjects them to a sentence of life
imprisonment. Id. at -19(b).
The law’s graduated scheme serves the Legislature’s stated aim: to rely
primarily on pretrial release and reserve detention for defendants who pose a
serious risk of non-appearance, danger, or obstruction. See id. at -15.
Moreover, the Act empowers judges to implement its framework and decide
the question of pretrial release.
The State argues that pretrial detention is justified when a defendant’s
risk of removal is certain and imminent. If that were the case, defendants
could be detained no matter the nature and circumstances of their eligible
3
The statute contains a catch-all provision at N.J.S.A. 2A:162-19(a)(7), which
provides for the possibility of detention for any crime if the prosecutor
believes there is a serious risk of non-appearance, danger, or obstruction. But
aside from certain listed offenses under section 19(a)(6), it is not common for
someone charged with a fourth-degree offense, for example, to be detained
unless the surrounding circumstances are serious. See In re Request to Release
Certain Pretrial Detainees, ___ N.J. ___, ___ (2021) (slip op. at 7).
27
offense, the strength of the evidence against them, their record of appearing in
court in the past, their ties to and length of residence in the community, their
past conduct, or other considerations the Legislature outlined. See id. at -20.
To be clear, we are considering individuals who would not otherwise be
subject to pretrial detention. Under the State’s argument, which assumes that
one can be certain when removal is imminent, the single determining factor
would be whether immigration officials appeared likely to succeed in their
efforts to remove an individual. Such an approach would effectively cede
decisions on pretrial release to an outside agency and remove that authority
from judges. Trial judges in those cases would in essence be compelled to
enter an order of detention. The CJRA, as written, does not provide for that.
The logical scope of the State’s argument raises a related concern.
Under its view, acts and decisions of others can provide a basis to detain a
defendant -- a notion that could extend beyond immigration proceedings, as
defendant Rios and the ACLU note. For example, suppose a defendant
presented a minimal risk of danger, non-appearance, or obstruction, but faced a
threat of harm from others. Could a court detain the person because others
might harm him and prevent his return to court? If so, could the defendant
later ask to be released because the danger had gone away? No fair reading of
the statute allows for that type of analysis or outcome, which, like removal by
28
ICE, depends entirely on the behavior of third parties. Instead, the CJRA ties
detention to a defendant’s voluntary acts and related factors.
In both of the above situations, the State’s interpretation of the CJRA
would also run counter to the law’s command to liberally construe the statute
in favor of pretrial release. Id. at -15.
In the language, structure, and purpose of the CJRA, we find evidence
that the Legislature intended to authorize pretrial detention when there is clear
and convincing evidence that individual defendants pose a serious risk of non-
appearance based on their own conduct, not the acts of third parties like ICE.
But because the statute does not expressly mention the risk of removal by
immigration authorities, and is arguably ambiguous for that reason, we
consider the Act’s legislative history as well.
C.
The legislative history of the CJRA makes clear that the Legislature did
not debate whether decisions by immigration officials could form the basis for
pretrial detention. Three strands in the historical record, however, do shed
light on the issue, and two of them imply that an order of detention shoul d be
based on a defendant’s own behavior.
First, the enactment of the CJRA followed an extensive report from the
Joint Committee on Criminal Justice. See Robinson, 229 N.J. at 53-54. The
29
broad-based Committee was comprised of various stakeholders in the criminal
justice system; its membership included representatives of the Executive
branch, the State Senate, and the Assembly. Id. at 53; Report of the Joint
Committee on Criminal Justice 97 (Mar. 10, 2014), https://
www.njcourts.gov/courts/assets/criminal/finalreport3202014.pdf (JCCJ
Report).
The Committee examined and recommended changes to the State’s
criminal justice system -- specifically, the need for bail reform and a speedy
trial act. Robinson, 229 N.J. at 53-54; JCCJ Report at 1. The Legislature, in
turn, adopted many of the reforms proposed in the JCCJ Report. Compare
JCCJ Report at 8-9, with N.J.S.A. 2A:162-15 to -26; see also S. Budget &
Appropriations Comm. Statement to S. 946 1 (June 5, 2014) (explicitly
referring to the JCCJ Report); Assemb. Judiciary Comm. Statement to A. 1910
1 (June 12, 2014) (same).
The JCCJ Report focused at length on the topic of pretrial release. See
JCCJ Report at 1-4, 8, 11-68. Among other guiding principles, the Report
observed that a “defendant’s pretrial freedom” can be “restricted to respond to
risks of pretrial misconduct.” Id. at 14. “Pretrial misconduct,” the report
explained, “takes two forms: (1) “nonappearance in court when required
(hereinafter ‘flight’) and (2) commission of additional crimes, witness
30
intimidation or witness retaliation, while released and awaiting trial
(hereinafter ‘community danger’).” Ibid. (emphases added). In short, the
report expressly equated “nonappearance in court” with “flight.” Ibid.
The Report went on to recommend a framework to identify and manage
those “risks of pretrial release misconduct.” Id. at 15-16, 18. The proposal
included the use of individualized risk assessments, id. at 57-61, and pretrial
detention for “defendants who present unmanageable risks of pretrial
misconduct,” id. at 62. The CJRA, in turn, used language similar to what
appears in the Report. For example, as noted before, the Act provides for
detention to reasonably assure a defendant’s “appearance in court when
required,” N.J.S.A. 2A:162-18(a) -- language the Report treated as
synonymous with “flight,” JCCJ Report at 14.
The second strand of legislative history relates to the same point. When
the CJRA was first introduced on January 27, 2014, it provided for detention
to “ensure the defendant’s appearance as required,” S. 946 § 4(a) (as
introduced, Jan. 27, 2014), and authorized prosecutors to move for detention in
“case[s] that involve[] a serious risk that the defendant will flee,” id.
§ 5(a)(2)(a). An accompanying statement by the Senate Judiciary Committee
used the term “flee” in the same context. See S. Judiciary Comm. Statement to
S. 946 1 (Mar. 24, 2014).
31
An amended bill dated June 5, 2014 stated prosecutors could seek
detention if they “believe[] there is a serious risk that the defendant will not
appear in court as required.” S. 946 § 6(a)(6)(a) (First Reprint, June 5, 2014).
In other words, the revised bill substituted the phrase “will not appear in court
as required” for “will flee.” Ibid. The bill, reported by the Senate Budget and
Appropriations Committee, offered no reason for the change. See generally S.
Budget & Appropriations Comm., Statement to S. 946 (June 5, 2014). The
revised language remained in the final version of the Act. See L. 2014, c. 31,
§ 5(a)(7)(a).
The State and the Attorney General argue the removal of the reference to
flight confirms the Legislature did not intend to create a volitional act
requirement in the CJRA. They maintain the amendment is significant and
permits judges to consider all circumstances that would prevent a defendant
from standing trial.
The meaning of the amendment, though, is far from clear. As the
Appellate Division noted, the revised language “[c]onceivably” reveals the
Legislature intended to expand the grounds for detention beyond cases of
flight to include defendants who simply choose to remain at home and not
appear in court. Molchor, 464 N.J. Super. at 292.
32
Recent data reveals that happens often. The CJRA went into effect in
2017. Robinson, 229 N.J. at 55. For that full year, the court appearance rate
for defendants, out of tens of thousands of cases, was 89.4% -- three
percentage points lower than in 2014, when the rate was 92.7%. New Jersey
Courts, 2018 Report to the Governor and the Legislature 14-15, 18 (2018),
https://njcourts.gov/courts/assets/criminal/2018cjrannual.pdf?c=taP. Yet the
data shows that defendants, in general, did not flee, because their cases were
disposed of in roughly the same amount of time as before. Id. at 15-16. About
80% of cases that began in 2014 were completed within 22 months; about 78%
that began in 2017 were completed in the same time frame. Ibid.
In other words, despite missing one or more court appearances,
defendants generally did not flee. They returned to court to resolve their
cases. Prosecutors can seek to detain those defendants under the CJRA; they
could not under the initial draft of the bill. Compare N.J.S.A. 2A-
162:19(a)(7)(a) (permitting prosecutors to seek detention when there is a
serious risk the defendant “will not appear in court as required”), with S. 946
§ 5(a)(2)(a) (as introduced, Jan. 27, 2014) (permitting prosecutors to seek
detention when there is a serious risk that a defendant “will flee”).
33
At oral argument, the Attorney General acknowledged that the number
of defendants who do not to appear in court because they voluntarily absent
themselves -- but do not flee -- far outpaces the number who are deported.
There may also be a simpler explanation for the amendment, which can
be gleaned from the timeline. Between January and June 2014 -- when the
Legislature changed the risk that a defendant “will flee” to “will not appear in
court as required” as a basis for a prosecutor to seek detention -- the JCCJ
issued its report. The March 10, 2014 report equated the two phrases. JCCJ
Report at 14. It is possible, then, that the Legislature meant very little when it
substituted words that were considered interchangeable.
Ultimately, we cannot discern the precise reason for the change because
none was offered. But in light of the above history and timeline, it can hardly
be said the amendment presents conclusive proof the Legislature wanted to
permit pretrial detention of defendants who might not appear in court through
no choice of their own.
The Legislature also used different language when it proposed a
constitutional amendment -- on which the CJRA was conditioned -- to allow
for pretrial detention. Robinson, 229 N.J. at 54; see also L. 2014, c. 31, § 21.
This third strand of legislative history, the proposed amendment that the voters
approved, eliminated the right to bail in the Constitution. S. Con. Res. 128 § 1
34
(2014) (enacted and incorporated at N.J. Const. art. I, ¶ 11). In its place, the
amendment provided defendants a right “to be eligible for pretrial release,”
which could be denied if a court found that no “conditions would reasonably
assure the person’s appearance in court when required, or protect the safety of
any other person or the community, or prevent the person from obstructing or
attempting to obstruct the criminal justice process.” Ibid.
The Legislature crafted an interpretive statement for voters to review
alongside the proposed amendment. The statement on the ballot explained
courts would have “the option of ordering a person to remain in jail in some
situations” -- namely, “[t]he court could order such detention based upon
concerns that the person, if released: will not return to court.” Id. § 3(b)
(emphasis added).
Here, again, the word “return” commonly refers to a person’s own
actions -- not the behavior of others that may prevent someone from acting.
See Merriam-Webster’s Collegiate Dictionary 1065 (11th ed. 2003) (defining
“return” as “to go back or come back again” and “the act of coming back to or
from a place or condition”); New Oxford American Dictionary 1493 (3d ed.
2010) (defining “return” as to “come or go back to a place or person” and “an
act of coming or going back to a place or activity”). Voters were asked about
35
detaining someone who “will not return to court,” not someone who “will not
be in a position to return to court” because of a third party.
We do not rely on federal case law that interprets the federal Bail
Reform Act in this instance. The Legislature looked to the Bail Reform Act
when drafting the CJRA, as noted in Robinson, 229 N.J. at 56, and federal law,
like the CJRA, permits judges to detain a defendant when “no condition or
combination of conditions will reasonably assure the appearance of the person
as required and the safety of any other person and the community.” 18 U.S.C.
§ 3142(e)(1); see also N.J.S.A. 2A:162-18(a). But the Bail Reform Act differs
from the CJRA in this area in two ways.
First, unlike the CJRA, the federal statute expressly provides for
consideration of immigration status. It empowers judges to detain certain non-
citizens temporarily if the court “determines that the person may flee or pose a
danger.” 18 U.S.C. § 3142(d). Immigration officials, who are notified by the
prosecution, then have ten days to decide whether to take the person into
custody. Ibid. If ICE chooses not to do so, the defendant is assessed for
pretrial detention like any other defendant would be. Ibid. The Legislature,
however, declined to explicitly address immigration status in the CJRA despite
looking to the federal act as a model.
36
The CJRA and federal law differ in another way as well: the Bail
Reform Act authorizes prosecutors to move for pretrial detention if there is a
serious risk the defendant “will flee.” 18 U.S.C. § 3142(f)(2)(A); but cf.
N.J.S.A. 2A:162-19(a)(7)(a) (authorizing prosecutors to seek detention when
they believe there is a serious risk the defendant “will not appear in court as
required”). Because of those differences, we do not consider federal case law
interpreting the Bail Reform Act to resolve the issue in this appeal.
In the end, the issue here is about the interpretation of a state statute.
The question is not whether the sovereign had the power to act; it is what the
law -- as written -- actually authorizes.
VI.
Another important concern influences our analysis. A bedrock principle
of our system of justice is that individuals charged with a crime are presumed
innocent. See In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin v.
United States, 156 U.S. 432, 453 (1895)). For like reasons, “[i]n our society
liberty is the norm, and detention prior to trial or without trial is the carefully
limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).
Detention statutes must be narrowly drawn to live up to those basic
principles. See id. at 749-50 (upholding the constitutionality of the Bail
Reform Act because it “narrowly focuses on a particularly acute problem in
37
which the Government interests are overwhelming”). The CJRA, like federal
law, therefore requires that a heightened standard be met before a person can
be detained pretrial: a finding by clear and convincing evidence that no
combination of conditions would reasonably guard against the risk of non -
appearance, danger, or obstruction. N.J.S.A. 2A:162-18(a); see also 18 U.S.C.
§ 3142(f).
The Public Defender and amici emphasize that decisions relating to the
removal of non-citizens are highly discretionary and involve complex legal
issues, making the risk of deportation extremely difficult to predict. The
extensive review of the immigration process presented by the Professors,
Former Judges, and the Public Defender reveals that various factors can
influence whether and when a non-citizen will actually be deported -- ranging
from ICE’s exercise of discretion, to the defenses and opportunities for relief
available to a particular non-citizen; from different legal and practical hurdles
that can make it difficult to execute a final order of removal, to the backlog in
immigration courts; and more. According to amici, it is difficult even for
experts to predict whether an individual will likely be deported.
38
A number of parties and advocates suggest multi-factor tests to gauge
the likelihood of deportation. The State proposes a three-factor test.4 The
Public Defender, on behalf of defendant Rios, argues that removal cannot
trigger detention under the CJRA but offers six factors to consider in the
alternative.5 The ACLU agrees that decisions by immigration officials cannot
justify detention under the Act but proposes seven factors in the alternative.6
The Professors suggest there are yet more considerations those tests do not
cover.
4
The State contends that deportation is “certain and imminent” when three
conditions are satisfied: (1) there is a final order of removal that has not been
stayed; (2) the defendant has exhausted all appeals and no forms of collateral
relief are pending; and (3) ICE has obtained travel documents for the
defendant.
5
The Public Defender proposed these factors in its brief and at oral argument:
(1) there is a final order of removal that has not been stayed; (2) the defendant
has no pending appeals or collateral challenges to the removal order; (3) the
defendant is in ICE custody; (4) ICE has obtained appropriate travel
documents; (5) a flight has been scheduled to the receiving country; and (6)
the State has exhausted all of its options to guarantee the defendant’s
appearance at trial.
6
The ACLU presented these factors in its brief and at oral argument: (1)
there is a final order of removal that has not been stayed; (2) the defendant has
no pending appeals or collateral challenges to the removal order; (3) ICE has
obtained travel documents; (4) the defendant is in ICE custody; (5) the State
has made a sufficient effort to forestall removal; (6) ICE has obtained a ticket
for a flight; and (7) the defendant is charged with a serious crime.
39
One thing seems apparent. If the Legislature were to ask judges to
consider the likelihood of removal when they decide detention motions, it
would be quite challenging, to say the least, for judges, prosecutors, and
defense attorneys -- many of whom are unfamiliar with immigration law and
practice -- to make accurate predictions. Yet judges can order detention only
if they find that “clear and convincing evidence” requires that outcome.
N.J.S.A. 2A:162-18(a). The legal standard and the realities of immigration
proceedings are not easily reconciled.
VII.
The Appellate Division correctly remanded the cases involving
defendants Molchor and Rios to the trial court “to weigh the risk of non -
appearance arising only from defendants’ own potential misconduct or
volitional acts.” Molchor, 464 N.J. Super. at 297. Those hearings have been
completed, and both defendants were released on conditions.
At a hearing on remand, just as at an initial detention hearing, trial
courts consider a host of factors to assess whether a defendant presents a risk
of non-appearance. N.J.S.A. 2A:162-20. A defendant’s family ties, length of
residence in the community, and community ties all bear on the risk that an
individual might choose not to appear in court. Ibid. Ties to another country
can likewise inform a court’s decision.
40
To be clear, a person’s immigration status alone cannot be dispositive.
See Molchor, 464 N.J. Super. at 297 (“[A] defendant’s immigration status
alone can rarely if ever justify a finding that the defendant poses a risk of
flight.”). Courts must engage in a fact-specific inquiry that looks beyond
status because each person’s circumstances -- citizens and non-citizens alike --
are different. Non-citizens who have lived here for years, gone to school here,
raised families here, and established roots in their communities may pose only
a minimal risk of non-appearance. Other non-citizens who arrived recently
and have no such connections may pose a much greater risk of
non-appearance.
In State v. Fajardo-Santos, we found that courts could “consider a
defendant’s immigration status in evaluating the risk of flight or non -
appearance.” 199 N.J. 520, 531 (2009). In doing so, we pointed to the impact
of immigration status and the filing of a detainer on a person’s decision
whether to appear in court. We noted that some defendants faced with “a
greater prospect of removal will have an additional incentive not to appear,”
while others “might be more determined to clear their name and vigorously
contest removal to remain with family members in the United States.” Id. at
531-32. To be clear, we intended, then and now, to invite an inquiry into how
non-citizen defendants facing immigration action will decide to respond to
41
their obligation to appear in court, a question that status alone does not answer.
Aside from concerns about the risk of danger or obstruction, the key question
for the court is whether a defendant will choose to appear, not what the
person’s immigration status is.
The decision in Fajardo-Santos concluded that judges could increase bail
for a non-citizen who was subject to an ICE detainer. Id. at 523, 532. As
noted earlier, various amici and the Public Defender persuasively argue that
the existence of a detainer or the start of removal proceedings does not mean
that removal is either highly likely or imminent. In Fajardo-Santos, we did not
have the benefit of the helpful briefs submitted in this appeal, and the decision
overstated the significance of the filing of a detainer in the removal process.
See id. at 523, 531. ICE agents -- not judges -- issue detainers when they
believe there is probable cause to remove a non-citizen; detainers are requests
to law enforcement, not mandatory orders, to permit ICE to assume custody.
See 8 C.F.R. § 287.7; Gonzalez v. ICE , 975 F.3d 788, 799 (9th Cir. 2020);
Hernandez v. United States, 939 F.3d 191, 200 (2d Cir. 2019); Galarza v.
Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014); Lunn v. Commonwealth, 78
N.E.3d 1143, 1148-53 (Mass. 2017). Regardless, Fajardo-Santos does not
support the proposition that decisions by immigration officials can justify
pretrial detention under the CJRA.
42
Fajardo-Santos considered New Jersey’s prior system of pretrial release,
which relied heavily on the use of monetary bail. 199 N.J. at 530. And the
Court’s conclusion rested in part on an interpretation of case law and a court
rule in effect at the time of the 2009 appeal. See ibid. (citing State v. Johnson,
61 N.J. 351, 364 (1972); R. 3:26-1(a) (2009)). The ruling did not interpret a
statute or its text, and the CJRA, of course, did not come into existence for
another five years. Fajardo-Santos is not an interpretive aid for the CJRA or
the issue now on appeal.
VIII.
It is important to keep in mind that these appeals involved defendants
who did not present a serious risk of flight, danger, or obstruction. Since
2017, defendants posing those types of risks have been detained under the
CJRA.
The Attorney General could not estimate how many non-citizen
defendants who are not detained are deported each year. The State conceded
the concern involves “a relatively small total number of cases” in the overall
context of pretrial release. Also, the parties have not provided data on how
many defendants facing removal actually resolve their cases while the
immigration process unfolds. Prosecutors can and do seek to defer action and
43
stay removal in appropriate cases so that the criminal process can be
completed.
As noted earlier, it would be preferable for ICE to refrain from deporting
defendants while they await trial for many reasons. If removal proceedings
occur while a case is pending, we again urge ICE officials to work with
prosecutors to allow pending criminal charges to be resolved.
IX.
For the reasons outlined above, we affirm the judgment of the Appellate
Division in both matters.
JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN,
joined by JUSTICE PIERRE-LOUIS, filed a dissent in Lopez-Carrera and
concurred in the judgment in Molchor and Rios.
44
State of New Jersey,
Plaintiff-Appellant,
v.
Oscar Lopez-Carrera,
Defendant-Respondent.
______________________________________________________________
State of New Jersey,
Plaintiff-Appellant,
v.
Juan C. Molchor,
Defendant-Respondent.
______________________________________________________________
State of New Jersey,
Plaintiff-Appellant,
v.
Jose A. Rios,
Defendant-Respondent.
JUSTICE ALBIN, dissenting in Lopez-Carrera; concurring in Molchor and
Rios
1
The State possesses the sovereign power to prosecute foreign nationals
who are charged with committing crimes against New Jersey citizens. New
Jersey crime victims, in turn, have the right to see that their perpetrators are
brought to justice in this State. The exercise of the State’s power to prosecute
and the right of crime victims to see justice done, however, can be thwarted if
the U.S. Immigration and Customs Enforcement (ICE) takes into custody
undocumented aliens charged with crimes in New Jersey and removes them to
their country of origin. 1 Today’s decision bars a New Jersey court from
issuing a detention order to prevent the certain and imminent removal of
defendant aliens on pretrial release. That decision means that those defendants
will not have to answer for their alleged crimes committed in this state.
In construing the Criminal Justice Reform Act (CJRA), N.J.S.A.
2A:162-15 to -26, the majority comes to a conclusion that is completely at
odds with the fundamental tenets of state sovereignty and victims’ rights
guaranteed in the New Jersey Constitution and our laws. In passing the CJRA,
1
The term “alien” is used here because it is part of the nomenclature of
federal immigration law and regulation. See, e.g., 8 U.S.C. § 1101(a)(3)
(defining “alien” as “any person not a citizen or national of the United
States”); 8 U.S.C. § 1227 (defining who qualifies as a “deportable alien”); 8
C.F.R. § 287.7 (governing the Department of Homeland Security’s issuance of
detainers to “seek[] custody of an alien . . . for the purpose of arresting and
removing the alien”).
2
the Legislature did not express an intention to waive state sovereignty or to
diminish the constitutional rights of New Jersey crime victims. The CJRA
authorizes trial courts to deny pretrial release “to reasonably assure an eligible
defendant’s appearance in court when required.” N.J.S.A. 2A:162-15. Yet,
the majority has parsed that statutory language to reach a result that the
Legislature could not have intended -- a result that leaves the State powerless
to detain a defendant alien, subject to certain and immediate removal by ICE,
to face prosecution and justice in a New Jersey court.
The stark and unsettling consequences of the majority’s decision are
evident in one of the cases before us. Defendant Oscar Lopez-Carrera was
indicted on charges related to the sexual molestation of a minor. 2 While on
pretrial release, defendant was taken into custody by ICE officials. Later, ICE
informed prosecutors that a final order had been entered for the removal of
Lopez-Carrera from this country to Guatemala. The State then immediately
sought to revoke Lopez-Carrera’s pretrial release so that he would not escape
prosecution for his alleged crimes in New Jersey. Despite urgent appeals from
2
Lopez-Carrera was indicted on charges of second-degree attempted sexual
assault, N.J.S.A. 2C:5-1(a)(1) and 2C:14-2(c)(4), and fourth-degree criminal
sexual contact, N.J.S.A. 2C:14-3(b). Defendants Juan Molchor and Jose Rios
were charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1),
and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
3
the State, certifying that Lopez-Carrera would be deported to Guatemala on the
next available flight, no court -- including the New Jersey Supreme Court --
granted the State’s emergent application for the issuance of a detention order.3
Because of the failure of our courts to intervene, ICE removed Lopez-
Carrera from the United States to Guatemala, ensuring that he would not face
justice for his alleged crimes. That discordant result is not commanded by the
CJRA. I would hold that a court may grant the State’s application for the
pretrial detention of a defendant alien when a final order of removal has been
issued, no appeals are pending, and removal by ICE is certain and imminent,
as in the case of Lopez-Carrera. Because the State could not show that
Molchor’s and Rios’s removals were certain and imminent, pretrial detention
would have been inappropriate.
Today’s decision will result in more defendant aliens not answering in a
New Jersey courtroom for serious crimes committed against residents of this
state. It is now for the Legislature to determine whether that decision is the
result it intended in enacting the CJRA. Because the majority’s interpretation
of the CJRA preempts this state’s sovereign authority to prosecute certain
3
I voted in favor of granting the State’s emergent application for a detention
order to prevent Lopez-Carrera’s removal to Guatemala.
4
defendant aliens for offenses committed in this state and denies crime victims
their rights under our laws, I respectfully disagree with the majority’s holding.
More specifically, I dissent in Lopez-Carrera and concur in the judgment in
Molchor and Rios.
I.
A.
A “State’s power to prosecute is derived from its own inherent
sovereignty.” Heath v. Alabama, 474 U.S. 82, 89 (1985) (internal quotation
marks omitted). Each state is armed with the police power to enforce the
criminal laws within its jurisdiction and to vindicate the rights of crime
victims. See United States v. Morrison, 529 U.S. 598, 618 (2000); see also
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (“The States possess primary
authority for defining and enforcing the criminal law.” (quoting Engle v.
Isaac, 456 U.S. 107, 128 (1982))); State v. Denofa, 187 N.J. 24, 36 (2006)
(“[T]he State is vested with the power to prosecute and punish crimes that
occur . . . within its territorial borders.”).
If, in enacting the CJRA, our Legislature intended to cede the State’s
sovereign power to prosecute aliens who are on pretrial release for crimes
committed in New Jersey, one would expect it to have done so in clear and
unmistakable language. Cf. Royster v. State Police, 227 N.J. 482, 494 (2017)
5
(noting that an effective waiver of sovereign immunity requires “a clear and
unequivocal statement of the Legislature.” (quoting Allen v. Fauver, 167 N.J.
69, 77 (2001))). Yet, neither the text nor the legislative history of the CJRA
indicates that the Legislature waived the State’s police power to detain a
defendant alien who is subject to certain and immediate removal by ICE.
Indeed, a reading of the CJRA that deprives the State of its power to
bring a defendant alien to justice would eviscerate the rights conferred on
crime victims in the Victim’s Rights Amendment to our State Constitution,
N.J. Const. art. I, ¶ 22, and in the Crime Victim’s Bill of Rights, N.J.S.A.
52:4B-34 to -38. The Victim’s Rights Amendment promises crime victims
that they will be treated with “fairness, compassion and respect” by the
criminal justice system. State v. Lawless, 214 N.J. 594, 614 (2013) (quoting
N.J. Const. art. I, ¶ 22). The Crime Victim’s Bill of Rights guarantees victims
the right to participate in the criminal justice process. See N.J.S.A. 52:4B-36;
see also State v. Blackmon, 202 N.J. 283, 298-99 (2010). Those promises and
rights are rendered meaningless if the CJRA preempts a court from entering a
detention order that prevents the immediate removal of defendant aliens -- an
order that would require that they face justice in this state. In passing the
CJRA, the Legislature did not signal its intent to strip the State of its police
powers or diminish the rights of crime victims. The CJRA must be
6
harmonized with the State’s inherent sovereign powers and legislative
enactments such as the Crime Victim’s Bill of Rights. Ambiguities in the
language of the CJRA should not be read to create conflict with other statutory
schemes.
B.
The CJRA empowers judges to detain defendants when the State has
shown by clear and convincing evidence that no conditions of pretrial release
(either non-monetary or monetary) “would reasonably assure the eligible
defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1)
(emphasis added). Certainly, a “defendant’s appearance in court when
required” will not happen if ICE removes an indicted defendant alien from the
country. As the majority correctly notes, the CJRA “does not expressly
mention the risk of removal by immigration authorities.” Ante at ___ (slip op.
at 29).
Did the Legislature intend the use of the word “appearance” in its
broadest sense to encompass circumstances that it may not have considered or
anticipated, such as a removal of a defendant from the jurisdiction by ICE? Or
did the Legislature intend to use the word “appearance” more narrowly, to
refer only to voluntary non-appearances?
7
To resolve that perceived ambiguity, the majority essentially rewrites the
statute by importing into the provision’s text the word “voluntary.” The
recomposed statute, in effect, reads that a court can detain a defendant only
when no conditions of release “would reasonably assure the eligible
defendant’s voluntary appearance in court when required.” But if the drafters
of the statute intended the word “voluntary” to be in the statute, presumably
they would have put it there. See DiProspero v. Penn, 183 N.J. 477, 492
(2005) (“We cannot write in an additional qualification which the Legislature
pointedly omitted. . . .” (quoting Craster v. Bd. of Comm’rs of Newark, 9 N.J.
225, 230 (1952))).
The majority justifies importing the volitional requirement by referring
to various dictionary definitions of “appearance.” Yet such definitions are
hardly conclusive and clearly not determinative of legislative intent. See State
v. Sisler, 177 N.J. 199, 207 (2003) (noting that a statute “must always be
construed as a whole, and the particular meaning to be attached to any word or
phrase is usually to be ascribed from the context, the nature of the s ubject
matter treated of, and the purpose or intention of” the drafters (quoting 2A
Norman J. Singer, Sutherland Statutory Construction § 46:05 at 167-68 (6th
ed. 2000))); see also Sherman v. Citibank (S.D.), N.A., 143 N.J. 35, 74 (1995)
(Pollock, J., dissenting) (“More relevant than the meaning that lexicographers
8
assign to statutory terms is the meaning assigned by the Legislature.”) ,
vacated, 517 U.S. 1241 (1996). Merely because the term “appearance”
typically involves a voluntary act does not suggest that it always does. The
CJRA’s legislative history suggests that the Legislature intended to allow for a
defendant’s detention even in the absence of a willful non-appearance from
court.
An initial draft of the CJRA provided that a prosecutor could move for
detention if there was a “serious risk that the defendant will flee,” S. 946
§ 5(a)(2)(a) (Jan. 27, 2014) (emphasis added). That language clearly envisions
the potential for a voluntary act by a defendant, i.e., flight. The Legislature,
however, amended that language to account for the “serious risk” that “the
defendant will not appear in court as required,” S. 946 § 6(a)(6)(a) (June 5,
2014) (emphasis added); N.J.S.A. 2A:162-19(a)(7)(a).
The change in language -- from narrow to broad -- may have been a
simple acknowledgement by the Legislature that it could not foresee every
scenario in which the statute might apply. See Perrelli v. Pastorelle, 206 N.J.
193, 208 (2011) (“It is frequently difficult for a draftsman of legislation to
anticipate all situations and to measure his words against them.” (quoting New
Capitol Bar & Grill Corp. v. Div. of Emp. Sec., 25 N.J. 155, 160 (1957))).
And for that reason, the Legislature may have added broader language to give
9
play in the joints of the statute to encompass circumstances such as a
defendant’s non-appearance because of the actions of immigration authorities.
See Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (“[W]here a
statute . . . does not expressly address a specific situation, the court will
interpret it ‘consonant with the probable intent of the draftsman.’” (quoting
AMN, Inc. of N.J. v. S. Brunswick Twp. Rent Leveling Bd., 93 N.J. 518, 525
(1983))).
Further, in deciding whether pretrial detention or release is appropriate,
trial courts, when reviewing a defendant’s “history and characteristics,” may
consider non-volitional factors such as a defendant’s “physical and mental
condition,” “family ties,” and “financial resources.” N.J.S.A 2A:162-20(c)(1).
Those factors do not implicate “voluntary” conduct by persons subject to
pretrial detention.
To the extent that the CJRA’s language is susceptible to more than one
reasonable interpretation, then we must consider the common-sense objectives
of the Legislature and harmonize the CJRA with the State’s inherent sovereign
powers and enactments such as the Crime Victim’s Bill of Rights. Dvorkin v.
Township of Dover, 29 N.J. 303, 315 (1959) (“[W]hen the lawgiver’s intent is
in doubt, the court ought to interpret the law to be what is most consonant to
equity . . . .” (quoting Kerlin’s Lessee v. Bull, 1 U.S. 175, 178 (1786))).
10
Viewed in that light, we should not impute to the Legislature an intent to
achieve a seemingly absurd result -- an intent to strip a court’s power to enter a
detention order to prevent a defendant alien’s removal from the country and
his escape from justice. See State v. Nance, 228 N.J. 378, 396 (2017)
(“[S]tatutory interpretations that lead to absurd or unreasonable results are to
be avoided.” (alteration in original) (quoting State v. Haliski, 140 N.J. 1, 9
(1995))).
II.
To be clear, I am not suggesting that a detention order can be entered
solely because of an alien’s status. Ordinarily, an alien’s status should not be
a factor. However, when a final order of removal has been entered, no appeals
are pending, and ICE has reported that a defendant alien’s removal from the
country is certain and imminent, that is a different matter. Indeed, in the case
of Lopez-Carrera, a flight was readied for his departure to Guatemala. In those
circumstances, the State has met its burden that no condition of release “would
reasonably assure the eligible defendant’s appearance in court when required.”
N.J.S.A. 2A:162-18(a)(1); see also N.J.S.A. 2A:162-19(a)(7) (allowing the
prosecutor to move for a defendant’s pretrial detention where there is a
“serious risk” of a defendant’s nonappearance).
11
That common-sense interpretation is consistent with the objectives of the
CJRA, the State’s exercise of its inherent sovereign power, and the Victim’s
Rights Amendment and Crime Victim’s Bill of Rights. That interpretation
ensures that defendants like Lopez-Carrera will answer for their alleged crimes
in a New Jersey courtroom and face their victims.
Under the CJRA, defendants charged with such crimes as aggravated
sexual assault, armed robbery, kidnapping, and other serious offenses are
subject to pretrial release. In all of those cases, victims have a right to see
those defendants -- whether United States citizens or foreign nationals --
brought to justice. It is now for the Legislature to determine whether, in
passing the CJRA, it intended to strip our courts of the power to enter
detention orders that would prevent the removal of defendant aliens charged
with committing crimes in this state.
For the reasons expressed, I respectfully disagree with the majority’s
holding, and I dissent in Lopez-Carrera and concur in the judgment in Molchor
and Rios.
12