RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2009-19T6 A-2010-19T6
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. July 8, 2020
APPELLATE DIVISION JUAN C. MOLCHOR,
Defendant-Appellant. ________________________
Plaintiff-Respondent,
v.
JOSE A. RIOS,
Argued telephonically May 4, 2020 – Decided July 8, 2020
Before Judges Messano, Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Complaint Nos. W-2020-000045-0806 and W-2020-000047-0806. Cristina L. Vazquez argued the cause for appellant Juan C. Molchor.
Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for appellant Jose A. Rios (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, of counsel and on the briefs).
Jonathan I. Amira, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney; Jonathan I. Amira, of counsel and on the briefs).
Sarah C. Hunt, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief).
Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey, attorneys; Katherine Eliza Haas, Alexander R. Shalom, and Jeanne M. LoCicero, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
These consolidated pretrial detention appeals raise the question: does the
Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26,
authorize a court to detain arrestees who are undocumented immigrants in
order to thwart their potential removal from the country by federal
immigration officials, and thereby to assure they appear at trial? Construing
the Act in light of its legislative history and persuasive federal authority, we
A-2009-19T6 2 conclude it does not. Rather, the risk of a defendant's failure to appear
justifying detention must arise from the defendant's own misconduct, not the
independent acts of a separate arm of government that may prevent a defendant
from appearing. The trial court erred in detaining defendants in part out of
concern that their possible removal from the country would prevent their
appearance at trial. The trial court also lacked sufficient evidence for its
finding that no conditions would reasonably assure that they would not
obstruct justice, and, in Rios's case, would not pose a risk to the safety of
others. Therefore, we reverse the trial court's orders and remand for further
consideration.
I.
Jose A. Rios and Juan Molchor were both 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). According to the State's version of
events,1 Rios, Molchor and a third person engaged in a fight with an
acquaintance, Hugo Alvarez, at a party at Alvarez's address. Defendants
allegedly punched Alvarez, and struck him repeatedly on the head with beer
bottles. Alvarez suffered a severe laceration, and briefly lost consciousness.
1 We rely on the complaint-warrants, affidavits of probable cause, preliminary law enforcement incident reports, police reports, and the assistant prosecutor's statements at the detention hearing.
A-2009-19T6 3 Defendants also allegedly damaged Alvarez's and another vehicle. Both Rios
and Molchor left the scene in a car, but police stopped them. They appeared to
be under the influence when arrested. Rios was also charged with driving
under the influence. N.J.S.A. 39:4-50. He was twenty-two years old. Molchor
was twenty-one.
On the risk scale for failure to appear, defendants' Public Safety
Assessments (PSAs) rated them both "1," the lowest risk. The PSAs rated them
"2" on the risk scale for new criminal activity. Neither defendant triggered a
"New Violent Criminal Activity Flag." Defendants had no prior convictions,
failures to appear, or adjudications of delinquency. The PSAs recommended
defendants' release conditioned on monthly reporting.
Highlighting defendants' immigration status, the State moved for pretrial
detention in separate hearings. The State argued that because Rios is
"undocumented," he posed a "risk of flight," and "there is concern that if he is
taken into federal custody on possibly an ICE [Immigration and Customs
Enforcement] detainer that the alleged victim will not be able to have the . . .
benefit of justice from having a fair trial . . . ." The assistant prosecutor stated
he believed it "very likely" that would happen, without presenting any evidence
ICE was interested in Rios.
A-2009-19T6 4 In making a similar argument in Molchor's case, the assistant prosecutor
appeared to equate Molchor's potential involuntary detention by federal
immigration officials as "flight." He stated, "[H]e is an undocumented
immigrant which gives the State serious concern with respect to risk of flight
given the nature and seriousness of these charges. If for instance Mr. Molchor
was to become detained in federal custody the State would have serious
difficulty having him appear . . . ."
The State argued that the PSA "[did] not take immigration status into
account," and suggested that Rios could have "prior failures to appear or other
matters [the State was] unaware of if he used other identifiers." In both cas es,
the State also asserted that defendants lived within "five minutes" of Alvarez,
and posed a risk of retaliation against the alleged victim. In each case, the
assistant prosecutor also argued that each defendant was "charged with a crime
of serious risk that he will impose a danger to any other person of the
community."
In opposing detention, defense counsel highlighted defendants' PSA
scores and recommendations of release. He argued in Molchor's case that there
was no evidence of an ICE detainer; and the State could inform ICE that
Molchor's presence was needed at trial. He argued in both cases that a no-
contact order would suffice to protect the alleged victim. Lastly, he argued the
A-2009-19T6 5 State, in alleging risk to the safety of others, inappropriately relied solely on the
offense charged.
The court accepted the State's argument that detention was needed to
prevent defendants' non-appearance as a result of their potential removal from
the country. In Rios's case, the court stated, in response to defense counsel's
argument for release, "[E]verything you say I agree with under normal
circumstances, but your client is an admitted, undocumented illegal alien which
raises major concerns for whether he's going to be here to answer to these
charges." The judge indicated that his concern related not to the risk Rios
might intentionally absent himself, but the risk ICE might prevent him from
appearing: "ICE needs to be contacted before he is released. They may choose
to deport him at this point, I don't know." The judge then referred to the risk of
"flight," without clarifying whether he meant defendant's volitional acts, or
ICE's intervention. "I'm not keeping him because of the seriousness of the
charges, but I am keeping him because of the seriousness of the charges and the
concern . . . of flight which will lead to his failure to appear in court for these
matters."
Without specifically addressing the efficacy of a no-contact order, the
judge added, "[T]here's a concern, which I don't think can be resolved, with
A-2009-19T6 6 him attempting to obstruct the criminal justice process by contact with the
victims in this case."
In Molchor's case, the judge again expressed concern that defendant
would not appear because of his immigration status. He stated that "everything
else being equal," he "would probably [be] subject to release." However, "the
seriousness of the charge coupled with the fact that [he was] looking at severe
jail time[,] [a]nd the fact that he is an illegal undocumented alien" created
"great concern . . . that he [would] be available to answer for these charges."
The judge added that "ICE needs to be notified by the State . . . . Let it shake
out where it shakes out. I don't feel comfortable releasing him." The court also
stated that Molchor could potentially "interfere with the State's process by
contact with the victim."
The court entered nearly identical written orders that embodied the
court's conclusions. In each, the court included, as its sole finding of fact and
conclusions of law, "The nature and circumstances of the offenses charged.
Particular circumstances, specifically, Defendant is an illegal alien."
Additionally, the court stated in Rios's order, "Based upon the seriousness of
these charges and his immigration status, the court finds by clear and
convincing evidence that there are no conditions of release which will assure
A-2009-19T6 7 his appearance in court." The court stated virtually the same thing in Molchor's
order.
The court also relied upon the seriousness of the charges and defendant's
immigration status in finding there were no conditions "which will assure that
the defendant will not be attempting to obstruct the criminal justice processes
by contact with the victim." Without explanation, in Rios's order, the court also
found by clear and convincing evidence that there was no amount of monetary
bail, non-monetary conditions, or a combination of the two that "would
reasonably assure . . . the protection of the safety of any other person or the
community . . . ."
These appeals followed. We asked for supplemental briefs and granted
amicus status to the Attorney General and the American Civil Liberties Union
(ACLU).
II.
Defendants and the ACLU argue defendants were detained because of
their immigration status, and the perceived threat that federal immigration
action would prevent them from appearing. They contend the CJRA does not
permit detention on those grounds. They argue the risk a defendant may fail to
appear justifying detention must arise from the defendant's own volitional acts,
not the intervening acts of another governmental entity. In the alternative, they
A-2009-19T6 8 argue if the threat of removal is an appropriate consideration regardless of a
defendant's volitional acts, the threat must be imminent, and the State must
diligently seek its delay. As there was no evidence that ICE had even lodged a
detainer or otherwise expressed interest in defendants – and given the inherent
uncertainty in federal immigration law and proceedings – they argue the threat
of their removal was too remote to justify detention. Defendants also contend
there was insufficient evidence to support the court's conclusion that detention
was necessary to prevent obstruction of justice, or in Rios's case, to protect
others' safety.
The State and the Attorney General respond that a defendant's volitional
conduct is not required in evaluating the risk he (or she) may not appear in
court. They contend that the court may consider the risk of non-appearance
created by other governmental actors. They argue, based on their interpretation
of federal immigration law and practice, federal immigration enforcement
action leading to removal was sufficiently likely in defendants' cases to justify
detention. They add that detention in this case was warranted based on the
totality of factors, including defendants' alleged lack of community ties –
although the record is silent on the subject – and the seriousness of the charges.
A-2009-19T6 9 III.
We review the trial court's detention decision for an abuse of discretion,
meaning, we may reverse the trial court if it ordered detention "by relying on an
impermissible basis, by relying upon irrelevant or inappropriate factors, by
failing to consider all relevant factors, or by making a clear error in judgment."
State v. S.N., 231 N.J. 497, 500 (2018). Also, we generally will not defer to the
trial court if it fails to provide the "factual underpinnings and legal bases" for
its discretionary decision. Id. at 516 (quoting State v. C.W., 449 N.J. Super.
231, 255 (App. Div. 2017)). We review de novo questions of the CJRA's
meaning. State v. Pinkston, 233 N.J. 495, 507 (2018). Consequently, we
review de novo a detention decision "based upon a misconception of the law."
C.W., 449 N.J. Super. at 255.
We assume the reader's general familiarity with the history of the CJRA,
and its mandate for the presumptive pre-trial release of all defendants except
those charged with murder and offenses for which a life term is possible, unless
the court finds by clear and convincing evidence that no release conditions
"would reasonably assure the eligible defendant's appearance in court when
required, the protection of the safety of any other person or the community, and
that the eligible defendant will not obstruct or attempt to obstruct the criminal
justice process." N.J.S.A. 2A:162-18(a)(1); see generally State v. Robinson,
A-2009-19T6 10 229 N.J. 44, 52-62 (2017) (describing CJRA background and summarizing the
Act).
We focus on a court's power to detain if no release conditions "would
reasonably assure the eligible defendant's appearance in court when required."
N.J.S.A. 2A:162-18(a)(1). The Act's language matches that of the
Constitutional amendment authorizing pre-trial detention, stating that "[p]retrial
release may be denied to a person if the court finds that no amount of monetary
bail, non-monetary conditions of pretrial release, or combination of monetary
bail and non-monetary conditions would reasonably assure the person's
appearance in court when required . . . ." N.J. Const., art. I, ¶ 11; see also
N.J.S.A. 2A:162-19(a)(7)(a) (stating that a prosecutor may seek detention in
any case in which "the prosecutor believes there is a serious risk that . . . the
eligible defendant will not appear in court as required").2
In determining whether detention is necessary, the trial court "may take
into account," among other factors, "[t]he history and characteristics of the
eligible defendant." N.J.S.A. 2A:162-20(c). We conclude a defendant's
immigration status is a "characteristic," notwithstanding the Act does not
2 Although we refer to the Constitutional amendment, we confine ourselves to construing the Act, as "[c]ourts should not reach a constitutional question unless its resolution is imperative to the disposition of the litigation." Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006).
A-2009-19T6 11 explicitly mention it in a non-exclusive list of characteristics. 3 In State v.
Williams, 452 N.J. Super. 16, 21-22 (App. Div. 2017), we held that the
defendant's pregnancy could be considered as a factor potentially impacting
whether pretrial detention was necessary, despite it not being explicitly listed in
N.J.S.A. 2A:162-20. Similarly, applying the pre-CJRA bail regime, the
Supreme Court stated, "When bail is set, it is entirely appropriate to consider a
defendant's immigration status in evaluating the risk of flight or non -
appearance." State v. Fajardo-Santos, 199 N.J. 520, 531 (2009).
The person's status along with the action or inaction of federal
immigration officials may prompt a defendant to react in different ways. A
person's status may include, for example, whether the person is an
undocumented entrant to the country, the person has overstayed a visa, or the
3 N.J.S.A. 2A:162-20(c) states that "history and characteristics" include:
(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 . . . .
A-2009-19T6 12 person is a permanent resident. Federal immigration action may include, for
example, whether a detainer has been lodged, whether federal officials have
released the defendant on bond or parole after arrest, 4 whether an order of
removal has been issued, and whether such an order has been stayed.
Absent any action by immigration officials, a person's status conceivably
may, under the totality of circumstances, have little impact on whether he or
she will appear in court. However, that may change, for example, with the
lodging of a detainer, which "announces ICE's decision to obtain custody of the
defendant in order to arrest and remove him, and . . . sets in motion the entire
removal process." Fajardo-Santos, 199 N.J. at 531 (citing 8 C.F.R. § 287.7(a)).
The triggering event may prompt some defendants to flee to avoid removal;
others may want to submit to removal, as a more palatable option than the risk
of conviction and incarceration following trial; and yet, others may "vigorously
contest removal" to remain here and to fight State charges. Id. at 531-32.
Their response may depend on factors related to their individual status and the
particular stage of the immigration process; and their response may depend on
other circumstances, such as their ties to the community, family and work, and
their resources to fight to remain in the country.
4 See Nielsen v. Preap, ___ U.S. ___, ___, 139 S.Ct. 954, 958-59 (2019) (interpreting statute authorizing such release subject to exceptions).
A-2009-19T6 13 The Court's observations in Fajardo-Santos are pertinent here, although
the Court made them in determining if it was appropriate, under the pre-CJRA
regime, to increase bail of an undocumented immigrant after a detainer was
filed. Under the CJRA, a court may consider facts regarding a defendant's
immigration status, and the immigration proceedings, if any, that pertain to him
or her, along with all other relevant circumstances, because they may affect a
person's decision whether or not to appear in court as required. Critically, the
two forms of non-appearance that the Fajardo-Santos Court considered
involved a defendant's volitional act: purposely absenting oneself from court
and intentionally submitting to federal removal proceedings. 5
The question presented here is whether the CJRA permits a court to
detain a defendant who would otherwise likely appear of his own volition, to
thwart federal immigration officials who may prevent him from doing so. In
other words, may a defendant be detained where release conditions may be
5 Notably, Fajardo-Santos was still entitled to pre-trial release after the federal immigration detainer was lodged, although the release was conditioned on a higher monetary bail. The Constitution then mandated, in non-capital offenses, that "all persons shall, before conviction, be bailable by sufficient sureties," N.J. Const., art. I, ¶ 11 (2016). "Sufficient sureties" meant a bond amount that "will insure [the defendant's] appearance at the trial." State v. Johnson, 61 N.J. 351, 359-60 (1972); see also State v. Steele, 430 N.J. Super. 24, 35 (App. Div. 2013).
A-2009-19T6 14 crafted to assure the defendant's appearance, but for his possible detention and
removal by federal immigration officials.
Our goal is to discern and implement the Legislature's intent in adopting
the CJRA. Pinkston, 233 N.J. at 504. We begin with the Act's plain language
and "give the law's words their generally accepted meaning." State v. Ingram,
230 N.J. 190, 203 (2017) (citing N.J.S.A. 1:1-1). "If the plain language chosen
by the Legislature 'leads to a clearly understood result' that is consistent with
the legislative objectives of the statute and its context with related provisions,
we apply the law as written." State v. Robinson, 217 N.J. 594, 604 (2014) (first
quoting State v. Hudson, 209 N.J. 513, 529 (2012); and then citing State v.
Rangel, 213 N.J. 500, 509 (2013)). "We may not 'rewrite a plainly written'
statute 'or presume that the Legislature intended something other than that
expressed by way of the plain language.'" State v. McCray, 458 N.J. Super.
473, 484 (App. Div. 2019) (quoting DiProspero v. Penn, 183 N.J. 477, 492
(2005)).
On the other hand, if the statutory language is not clear, as with any issue
of statutory construction, "a court may resort to extrinsic evidence for guidance,
including legislative history and committee reports." In re Kollman, 210 N.J.
557, 568 (2012). Regarding the CJRA, we also carefully consider federal case
A-2009-19T6 15 law interpreting the federal Bail Reform Act, upon which the CJRA was
modeled. Pinkston, 233 N.J. at 504-05.
The CJRA's plain language does not resolve the question whether the risk
of a defendant's failure to appear justifying detention must arise from the
defendant's own volitional acts, and not federal officials' independent acts that
prevent a defendant from appearing. N.J.S.A. 2A:162-18 does not explicitly
dictate that release conditions that fail to reasonably assure the person's
appearance in court when required must fail because of the defendant's
volitional acts, or someone else's. Yet, read in context, one may plausibly
construe the statute to require a defendant's volitional act, as the other grounds
for detention – threatening "the safety of another person or the community," or
"obstructing or attempting to obstruct the criminal justice process" –
necessarily involve volitional acts. N.J.S.A. 2A:162-19 ambiguously refers to
the "serious risk that . . . the eligible defendant will not appear in court as
required." While the provision does not expressly require that the risk arise
from a defendant's volitional acts, one may infer that requirement, since the
provision refers to the defendant's response to requirements to appear.
The interpretive statement to the constitutional amendment, which the
Legislature supplied, explained to voters that the language found now in
Article I, Paragraph 11 (and in N.J.S.A. 2A:162-18) "would give a court the
A-2009-19T6 16 option of ordering a person to remain in jail in some situations. The court
could order such detention based upon concerns that the person, if released:
will not return to court." Sen. Concurrent Res. 128 (216th Legis.) (July 10,
2014). An interpretive statement is designed to be "an aid to understanding the
matter under consideration." Bd. of Chosen Freeholders v. State, 159 N.J. 565,
582 (1999). We may presume the Legislature, in utilizing the same language
in the Act, had that same meaning in mind. By referring to a defendant's
"return," the provision arguably implies a defendant's volitional act.
Alternatively, a person's return to court may be blocked by others.
In light of the Act's ambiguity, we turn to its legislative history. As the
Supreme Court observed, the CJRA's enactment followed recommendations of
the Joint Committee on Criminal Justice (Joint Committee). Robinson, 229
N.J. at 53-54 (discussing report of the JCCJ).6 The Legislature adopted the
CJRA to implement the proposed reforms. In construing a statute, we may
look for guidance to the statements of intent that a study commission
expressed in recommending the statute's enactment. See In re LoBasso, 423
N.J. Super. 475, 490-91 (App. Div. 2012) (interpreting expungement statute
6 The Joint Committee's report (JCCJ Report) may be found at http://www.judiciary.state.nj.us/pressrel/2014/FinalReport_3_20_2014.pdf.
A-2009-19T6 17 adopted to implement gubernatorial study commission's recommendations in
light of commission's statement of intent).
The Joint Committee equated non-appearance with a defendant's
"misconduct," that is, a defendant's purposeful acts. It adopted as a "guiding
principle" that "[a] criminal defendant's pretrial freedom may be legitimately
restricted to respond to risks of pretrial misconduct." JCCJ Report at 14. The
Joint Committee explained, "Pretrial misconduct takes two forms: (1)
nonappearance in court when required (hereinafter 'flight') and (2) commission
of additional crimes, witness intimidation or witness retaliation, while released
and awaiting trial (hereinafter 'community danger')." Id.
The Joint Committee's focus on a defendant's "misconduct" is
incompatible with permitting detention to thwart the independent actions of a
federal governmental agency that affects the defendant's ability to appear.
Rather, the Joint Committee proposed a system that authorized pre-trial
detention when release conditions could not be devised to manage a
defendant's "misconduct" leading to non-appearance. Id. at 15-16, 18. The
system depends on individualized assessments of the defendant's risk of
misconduct. Id. at 57-62. The Joint Committee proposed a system to address
a fundamental unfairness of the old bail system: that a person who is presumed
innocent and who posed a manageable risk of pre-trial misconduct could be
A-2009-19T6 18 detained because he or she lacked the resources to post bail. Id. at 3, 14. It
would likewise be unfair to detain such a person to thwart some other
governmental entity's actions.
As initially introduced, the CJRA legislation expressly equated the risk
of "non-appearance" with the risk a defendant would "flee," indicating that
non-appearance, like the act of fleeing, is volitional. Senate Bill No. 946
(216th Legis.) (January 27, 2014) expressed the purpose of avoiding monetary
bail to "reasonably assure the defendant's appearance in court," see § 1; it
authorized detention if no pre-release conditions "would ensure the defendant's
appearance as required," see § 4(a); and it authorized a prosecutor to seek
detention "in a case that involves a serious risk that the defendant will flee,"
see § 5(2)(a). In reporting that version of the bill, the Senate Judiciary
Committee Statement explained that "the bill provides that a court may also
hold a detention hearing, upon a motion of either the prosecutor or as initiated
by the court in any case that involves a serious risk that the defendant . . . will
flee"; and the court is authorized to impose "non-monetary release alternatives
to setting bail . . . to ensure that a defendant appears for trial." See Sen.
Judiciary Comm. Statement to Sen. Bill 946 (March 24, 2014) at 1, 2.
We recognize that by subsequent amendment, the Senate deleted the
reference to the risk a defendant "will flee." See Sen. Bill 946 First Reprint
A-2009-19T6 19 (216th Legis.) (as reported by Sen. Budget and Approp. Comm. June 5, 2014),
§ 6(a)(6)(a) (authorizing a detention motion when the prosecutor believes
"there is a serious risk that . . . the defendant will not appear in court as
required"). However, the accompanying committee statement did not address
the reason for the change, which survived subsequent amendments and
enactment without further explanation. See Sen. Bill 946 Second Reprint
(216th Legis.) (as adopted by the Senate June 12, 2014); and Sen. Bill 946
Third Reprint (216th Legis.) (as adopted by the Senate July 31, 2014).
Conceivably, the change was intended to make sure that a defendant's
voluntary non-appearance was not limited to flight. Flight includes an element
of departure and an intent to avoid detection. See Ingram, 196 N.J. 23, 46
(2008). Yet, a defendant may voluntarily absent himself from court without
going anywhere, or hiding from anyone. Id. at 47 (holding it was error to
deliver a flight charge where a defendant decided to absent himself from trial
without evidence he did so "to avoid detection, arrest, or the imposition of
punishment"). The amended legislation enables a prosecutor to seek detention
to manage that sort of non-flight voluntary non-appearance. Therefore, the
legislative change does not imply an intent to authorize detention to manage
the risk of a defendant's non-volitional failure to appear.
A-2009-19T6 20 Indeed, notwithstanding the Legislature's modification, our Supreme
Court has often equated "non-appearance" with "flight," suggesting that "non-
appearance," like "flight," must be volitional. The Court explained in
Robinson, 229 N.J. at 54, that the Act "allows for pretrial detention of
defendants who present . . . a serious risk of danger, flight, or obstruction
. . . ." See also State v. Mercedes, 233 N.J. 152, 163 (2018) (stating that
"whether detention is warranted" depends on "whether any combination of
conditions will reasonably protect against the risk of flight, danger, or
obstruction"); Ingram, 230 N.J. at 194 (noting that "prosecutors can seek to
detain defendants who pose a serious risk of danger, flight, or obstruction").
Our conclusion that non-appearance under the CJRA must be volitional,
finds support in persuasive federal case law interpreting the federal Bail
Reform Act. Like the CJRA, the federal law allows a court to order a
defendant detained pretrial upon finding "no condition or combination of
conditions will reasonably assure the appearance of the person as required."
18 U.S.C. § 3142(e)(1). 7 The federal law also specifically authorizes
7 The phrase "reasonably assure the appearance . . . as required" is also used in the provision authorizing release conditions, 18 U.S.C. § 3142(c); and the provision authorizing a hearing to determine the efficacy of such conditions, 18 U.S.C. § 3142(f). Notably, the federal law also includes the language found in the originally introduced State legislation, authorizing a prosecutor (and the
A-2009-19T6 21 temporary detention, to give federal immigration officers an opportunity, over
a ten-day period, to take the defendant into custody, if the court finds that the
person is not a citizen or a lawfully admitted permanent resident and "such
person may flee or pose a danger to any other person or the community." 18
U.S.C. § 3142(d)(2). We do not view that provision as a distinction that would
make federal precedent inapplicable. If federal immigration officials do not
avail themselves of the ten-day window of opportunity, then the defendant is
treated like any other under the law's remaining provisions, including 18
U.S.C. § 3142(e), allowing detention for an unmanageable risk of non-
appearance. Ibid.; see United States v. Soriano Nunez, 928 F.3d 240, 244-45
(3d Cir. 2019).
In United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015),
the Court of Appeals held that "the risk of nonappearance referenced in 18
U.S.C. § 3142 must involve an element of volition." (citing United States v.
Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1176-78 (D. Or. 2012)). The Court of
Appeals held "the district court erred in relying on the existence of an ICE
detainer and the probability of [the defendant's] immigration detention and
removal from the United States to find that no condition or combination of
court on its own initiative) to seek detention "in a case that involves . . . a serious risk that such person will flee." 18 U.S.C. § 3142(f)(2)(A).
A-2009-19T6 22 conditions will reasonably assure [his] appearance pursuant to 18 U.S.C. §
3142(e)." Id. at 1092. Since immigration officials did not avail themselves of
the temporary detention provision, the district court's order detaining t he
defendant "based on the possibility of his detention or removal by immigration
authorities . . . [was] contrary to the express language of the Bail Reform Act."
Id. at 1091. The district court's decision "substitute[d] a categorical denial of
bail for the individualized evaluation required by the Bail Reform Act." Id. at
1091-92.
Other federal courts have likewise concluded that, to justify detention
under 18 U.S.C. § 3142(e), the risk of non-appearance must pertain to
voluntary or volitional non-appearance. See United States v. Espinoza-Ochoa,
371 F. Supp. 3d 1018, 1022 (M.D. Ala. 2019) (holding non-appearance must
be volitional, and rejecting United States' argument "that because it could not
ensure that the defendant would be present at trial due to the administrative
deportation proceedings initiated by ICE, the defendant should be held
pursuant to the 'risk of nonappearance' clause of the Bail Reform Act"); United
States v. Resendiz-Guevara, 145 F. Supp. 3d 1128, 1134 (M.D. Fla. 2015)
(following Santos-Flores); United States v. Barrera-Omana, 638 F. Supp. 2d
A-2009-19T6 23 1108, 1111 (D. Minn. 2009) ("[t]he risk of nonappearance referenced in 18
U.S.C. § 3142 has to involve an element of volition"). 8
Notably, the Court of Appeals in Santos-Flores affirmed the district
court's alternative ruling that detention was justified because the defendant was
a "voluntary flight risk." 794 F.3d at 1092 (emphasis added). The district
court's finding was supported by such factors as the defendant's "violation of
the terms of his supervised release, his multiple unlawful entries into the
United States, [and] his prior failure to appear . . . in state court," among other
factors. Ibid.
We reject the Attorney General's argument that detaining a defendant to
prevent his or her removal from the country is justified "to save our criminal-
justice system from being trampled by the actions of federal immigration
8 The court in United States v. Ailon-Ailon, 875 F.3d 1334, 1336-38 (10th Cir. 2017) reasoned that before the court may consider, as a second step, whether there exist conditions that "will reasonably assure [the defendant's] appearance," 18 U.S.C. § 3142(e), the government had to make a threshold showing of a serious risk that the defendant "will flee," under 18 U.S.C. § 3142(f)(2)(A), and "[t]he ordinary meaning of 'flee' suggests volitional conduct." See also United States v. Villatoro-Ventura, 330 F. Supp. 3d 1118, 1135 (N.D. Iowa 2018) (following Ailon-Ailon reasoning). Inasmuch as the reference to "flee" was deleted from the CJRA legislation, we do not rely on the textual analysis in Ailon-Ailon. Notably, the government may also file a motion to detain if the defendant is charged with certain enumerated crimes, 18 U.S.C. § 3142(f)(1), without demonstrating a threshold risk the defendant "will flee." The court must then consider whether there exist conditions that would "reasonably assure [the defendant's] appearance." 18 U.S.C. 3142(e).
A-2009-19T6 24 officials." The State has other options. It may seek the immigration officials'
cooperation in staying their proceedings to permit the State's prosecution to
proceed.9 However, even if such efforts fail, we do not accept the premise that
a defendant's pre-trial freedom may be sacrificed, against the defendant's will,
to enable the State's prosecutorial goals to override federal immigration
priorities.
"In 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) (declaring federal Bail Reform Act constitutional); see also
Robinson, 229 N.J. at 68. Defendants are presumed innocent. Detention may
be justified by the unmanageable risk a defendant will obstruct justice, harm
others, or not appear. Those acts must be volitional.
Our criminal statutes "require a voluntary act . . . as [one of] the
minimum conditions for liability." State v. Sexton, 160 N.J. 93, 98 (1999). "A
person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act or the omission to perform an act of which he is
9 See U.S. Immigration Customs and Enforcement, Protecting the Homeland: Tool Kit for Prosecutors (April 2011), available at https://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-prosecutors.pdf. The document states that "ICE is committed to supporting the efforts of prosecutors to bring criminals to justice," at 2; it explains that prosecutors ma y request that ICE defer action, at 4-6, or stay removal, at 6-8, to enable local prosecutions to proceed.
A-2009-19T6 25 physically capable." N.J.S.A. 2C:2-1(a). Under our system, a person must be
responsible for an act, to be punished for it. Although the CJRA is not a
criminal statute, it authorizes a defendant's incarceration that is all the more
harsh because a court has not convicted him or her of any crime, and may
never do so. Allowing detention to thwart federal immigration action would
offend the fundamental requirement of a voluntary act. It would permit
incarceration to address the risk a defendant may not appear when he or she is
not responsible for his or her absence, and is not "physically capable" of
appearing, because federal immigration officials have taken that defendant into
custody or removed that defendant from the country. Without addressing the
scope of defendants' substantive due process rights to pre-trial freedom, we
conclude that the Legislature did not intend such a result. Rather, it 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.
In sum, the trial court erred in accepting the State's argument that the
risk of defendants' involuntary non-appearance, resulting from federal
immigration officials' actions, justified detention. 10
10 Having concluded that a defendant's non-appearance must be volitional, we need not address defendants' alternative argument that if the risk of involuntary removal may be considered a factor in ordering detention, then the State must be obliged to diligently seek its delay, and the removal should be
A-2009-19T6 26 IV.
We remand for reconsideration, directing the court to weigh the risk of
non-appearance arising only from defendants' own potential misconduct or
volitional acts. We add the following comments.
As our Court recognized in Fajardo-Santos and the federal court
recognized in Santos-Flores, a defendant's immigration status, coupled with
federal immigration action and other factors, may support a finding that a
defendant poses a risk of flight or voluntary non-appearance. However, a
court may conclude that such a risk is manageable. For example, in United
States v. Chavez-Rivas, 536 F. Supp. 2d 962, 969 (E.D. Wis. 2008), which the
Fajardo-Santos court cited with approval, 199 N.J. at 531, the federal court
declined to find an unmanageable risk of flight notwithstanding the lodging of
an ICE detainer, because of the defendant's "strong family and community
ties."11 In any event, a defendant's immigration status alone can rarely if ever
imminent. However, defendants persuasively argue that the likelihood their detention would block their appearance was speculative at best, inasmuch as ICE had not lodged a detainer or otherwise expressed interest in them. Furthermore, defendants' detailed discussion of the complexities of federal immigration practice highlight the difficulty in predicting whether or when a defendant will actually be removed from the country. 11 The court ordered the defendant's release, subject to home confinement on electronic monitoring, mindful that the government's case was strong, and the
A-2009-19T6 27 justify a finding that the defendant poses a risk of flight. The court is obliged
to consider all relevant information available to it. Robinson, 229 N.J. at 62.
We also vacate the court's findings, as lacking sufficient evidence in the
record, that defendants posed an unmanageable risk that they would obstruct
justice by retaliating against the alleged victim, or that Rios posed a risk of
danger to others or the community. The court did not consider the efficacy of
other possible conditions to reasonably assure that defendants would not
obstruct the criminal justice process. Simply asserting that defendants resided
within a five-minute drive from the alleged victim does not suffice by itself to
support detention. As for the safety risk Rios allegedly posed, the State cited
only the nature of the offense. A Pretrial Services Program's "recommendation
against release, based on the type of charge alone, cannot justify detention
unless it is based on a statutory presumption of detention." Mercedes, 233 N.J.
at 171. Here, Pretrial Services' recommendation was for release. Yet, the
court appeared to detain Rios based on the charge alone. That was error.
Reversed and remanded for reconsideration. Defendants shall remain
detained pending the hearing. We do not retain jurisdiction.
defendant faced the risk of a significant prison sentence. Chavez-Rivas, 536 F. Supp. 2d at 969.
A-2009-19T6 28