247 A.3d 842
N.J.2021Background
- Three consolidated cases: Molchor and Rios (aggravated assault, criminal mischief) and Lopez‑Carrera (attempted sexual assault; minor). All three had no convictions/failures to appear and low PSA risk scores recommending release.
- Prosecutors sought pretrial detention because defendants were non‑citizens; trial courts in Molchor and Rios ordered detention citing immigration status as the sole justification; Appellate Division reversed and remanded.
- Lopez‑Carrera was released, immediately taken into ICE custody, later subject to a final removal order, and ultimately deported; the State’s motion to revoke release was denied and affirmed on appeal.
- The State argued CJRA permits detention to prevent certain/imminent removal; defendants and amici argued CJRA targets voluntary nonappearance and judges cannot reliably predict removal.
- The New Jersey Supreme Court held the CJRA favors release and does not authorize detention solely to thwart ICE removal; detention is limited to cases where clear and convincing evidence shows no conditions would reasonably assure appearance, protection, or non‑obstruction based on the defendant’s own conduct.
- The Court urged ICE cooperation with prosecutors to allow state prosecutions to proceed while noting the difficulty judges face in predicting immigration outcomes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the CJRA authorize pretrial detention to prevent ICE removal? | CJRA permits detention when removal is certain and imminent to "reasonably assure" appearance. | CJRA addresses voluntary non‑appearance and focuses on defendant conduct; ICE actions cannot justify detention. | No. CJRA does not authorize detention to thwart ICE; detention only when clear & convincing evidence shows risk based on defendant's own conduct. |
| Does “appearance” in CJRA imply a volitional act? | Not necessarily; plain text covers any failure to appear, regardless of cause. | Yes; appearance commonly refers to a defendant’s voluntary act; related statutory factors target defendant behavior. | Court inferred “appearance” implies a voluntary act and read CJRA in context to focus on defendant choices. |
| Should courts assess likelihood of removal (and by what standard)? | Courts can apply multi‑factor tests to assess certainty/imminence of removal. | Immigration proceedings are complex and discretionary; judges are ill‑equipped to predict removal. | Court declined to adopt judge‑made removal‑likelihood framework; predicting removal is too speculative for clear & convincing detention standard — legislature should address if broader power desired. |
Key Cases Cited
- State v. Robinson, 229 N.J. 44 (2017) (describing CJRA’s risk‑assessment framework and PSA use)
- State v. Fajardo‑Santos, 199 N.J. 520 (2009) (immigration status may inform flight inquiry under prior bail regime)
- United States v. Salerno, 481 U.S. 739 (1987) (pretrial detention is a carefully limited exception to liberty)
- In re Winship, 397 U.S. 358 (1970) (presumption of innocence requires heightened standards for deprivation of liberty)
- United States v. Santos‑Flores, 794 F.3d 1088 (9th Cir. 2015) (federal interpretation holding nonappearance risk requires volition)
- Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) (explaining ICE detainers are requests, not mandatory orders)