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Holland v. Rosen

United States District Court, D. New Jersey

September 21, 2017

BRITTAN B. HOLLAND and LEXINGTON NATIONAL INSURANCE CORPORATION, Plaintiffs,
v.
KELLY ROSEN, MARY E COLALILLO, and CHRISTOPHER PORRINO, Defendants.

          JUSTIN TAYLOR QUINN, ESQ. ROBINSON MILLER LLC AND PAUL D. CLEMENT, ESQ., MICHAEL F. WILLIAMS, ESQ. CHRISTOPHER G. MICHEL, ESQ., ANDREW. C. LAWRENCE, ESQ. KIRKLAND & ELLIS LLP ATTORNEYS FOR PLAINTIFFS

          STUART MARK FEINBLATT, ASSISTANT ATTORNEY GENERAL CHRISTOPHER JOSEPH RIGGS, DEPUTY ATTORNEY GENERAL ATTORNEYS FOR DEFENDANTS

          ALEXANDER R. SHALOM, ESQ. AND BRANDON J. BUSKEY, ESQ., ANDREA WOODS, ESQ. ATTORNEYS FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, DRUG POLICY ALLIANCE, LATINO ACTION NETWORK, AND NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE - NEW JERSEY STATE CONFERENCE

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         Table of Contents

         I. INTRODUCTION............................................. 3

         II. BACKGROUND............................................... 5

         A. Historical Perspective on Bail in New Jersey........ 5

         B. The Criminal Justice Reform Act..................... 10

         1. The Pretrial Release Decision.................. 11

         2. The Risk Assessment Instrument................. 14

         3. The Pretrial Detention Hearing................. 20

         C. Effect of the CJRA on New Jersey's Criminal Justice System.............................................. 23

         D. Plaintiff Holland................................... 24

         E. Plaintiff Lexington................................. 28

         F. The State Defendants................................ 29

         G. Procedural History.................................. 29

         III. STANDARD OF REVIEW....................................... 30

         IV. DISCUSSION............................................... 34

         A. Preliminary Issues.................................. 34

         1. Standing....................................... 34

         2. Younger Abstention............................. 51

         3. Habeas vs. 1983................................ 63

         4. Summary of Preliminary Issues.................. 66

         B. Likelihood of Success on the Merits................. 66

         1. Eighth Amendment............................... 67

         2. Fourteenth Amendment........................... 77

         3. Fourth Amendment............................... 84

         4. Summary of Likelihood of Success Prong......... 84

         C. Probability of Irreparable Harm..................... 88

         D. Balance of Harms.................................... 90

         E. Considerations of the Public Interest............... 92

         F. Summary of Preliminary Injunction Factors........... 93

         I. INTRODUCTION

         This dispute centers on the constitutionality of New Jersey's recently-enacted Criminal Justice Reform Act (“CJRA”). The matter is presently before the Court upon the motion of Plaintiffs Brittan B. Holland (“Holland”) and Lexington National Insurance Corporation (“Lexington”) for a preliminary injunction enjoining Defendants Kelly Rosen, the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey; Mary E. Colalillo, the Camden County Prosecutor; and Christopher S. Porrino, the Attorney General of New Jersey, (collectively, “the State Defendants” or “Defendants”), as well as their agents, “from taking any actions to enforce statutory provisions [of the CJRA] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” (Pl. Proposed Order.)

         Holland is presently on pretrial release from the Superior Court of New Jersey on conditions including home confinement (except for employment) and electronic monitoring, but not cash bail, as he faces charges for second-degree aggravated assault. Lexington is a bail bond provider that alleges its business in New Jersey has essentially dried up since the CJRA took effect on January 1, 2017, although it does not allege it has a bonding relationship with Holland or any other person processed under the CJRA.

         The primary issue before the Court is whether Plaintiffs have a “reasonable probability of eventual success” on their claims that the CJRA violates Holland's Fourth, Eighth, and/or Fourteenth Amendment rights under the U.S. Constitution. This inquiry necessarily requires the Court to also consider jurisdictional issues, such as whether Plaintiffs have standing to bring their constitutional claims and whether the Court must abstain under Younger v. Harris, 401 U.S. 37 (1971), in light of Holland's ongoing state prosecution.

         The Court heard oral argument at a Preliminary Injunction Hearing held on August 22, 2017 [Docket Item 42], and no testimony was offered beyond various affidavits and attached documents. After careful consideration, Plaintiffs' Motion for a Preliminary Injunction will be denied for the reasons explained below. The following constitute the Court's findings of fact and conclusions of law upon Plaintiffs' Motion for a Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 52(a).

         II. BACKGROUND

         A. Historical Perspective on Bail in New Jersey

         As under the Eighth Amendment of the U.S. Constitution, the New Jersey State Constitution (“State Constitution”) provides: “[e]xcessive bail shall not be required.” N.J. Const. art. 1, ¶ 12. For more than a century, the State Constitution additionally required: “[a]ll persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.” N.J. Const. of 1844, art. I, ¶ 10; see also N.J. Const. of 1947, art. I, ¶ 11 (2016) (retaining same language from 1844 Constitution).[1] Thus, New Jersey has long considered the right of an individual to bail before trial to be “a fundamental one.” State v. Johnson, 61 N.J. 351, 355 (1972).

         The constitutional guarantee that a criminal defendant be “bailable by sufficient sureties” produced tension in New Jersey's criminal justice system. On one hand, “any defendants -even those who posed a substantial risk of flight or danger to the community - could be released if they had access to untainted funds to post as bail.” State v. Robinson, 229 N.J. 44, 52-53 (2017). On the other hand, “poorer defendants accused of less serious crimes, who presented minimal risk, were held in custody if they could not post even modest amounts of bail.” Id. at 53.

         For example, a 2013 Report revealed that on a particular day in 2012, a total of 13, 003 inmates were housed in 20 of New Jersey's 22 county jails. Marie VanNostrand, Ph.D., Luminosity & the Drug Policy Alliance, New Jersey Jail Population Analysis 8 (Mar. 2013), https://university.pretrial.org/viewdocument/new-jersey-jail-popu)[hereinafter, “VanNostrand Report”]. About 9, 500 inmates (or 73% of the sampled jail population) were confined because they were awaiting trial or sentencing in either Superior or Municipal Court. Id. at 11.[2] Most importantly, more than 5, 000 inmates (or 38.5% of the sampled jail population) were in custody simply because they could not afford bail. Id. at 13.[3] A total of 1, 547 of those inmates (or 12% of the sampled jail population) were in pretrial custody because they could not afford $2, 500 or less, including about 800 inmates who could have secured their release for $500 or less. Id. “In other words, one in eight inmates, who posed little risk, sat in jail pretrial because they were poor, while defendants charged with serious crimes who posed a substantial risk of danger or flight could be released into the community without monitoring so long as they could make bail.” Robinson, 229 N.J. at 53.

         In 2012, Governor Chris Christie called for a constitutional amendment to reform New Jersey's pretrial detention system. Id. Chief Justice Stuart Rabner of the New Jersey Supreme Court subsequently established a Joint Committee on Criminal Justice (“the Joint Committee”) to examine “issues relating to bail and the delays in bringing criminal cases to trial.” Joint Committee, Report of the Joint Committee on Criminal Justice at 1 (Mar. 10, 2014), available at https://www.judiciary.state.nj.us/courts/assets/criminal/finalre port3202014.pdf. The Joint Committee was comprised of members from all three branches of state government and included judges, prosecutors, public defenders, private counsel, court administrators, and staff from the Legislature and Governor's office. Id.

         On March 10, 2014, the Report of the Joint Committee on Criminal Justice was issued. Id. According to the Joint Committee:

the current system presents problems at both ends of the spectrum: defendants charged with less serious offenses, who pose little risk of flight or danger to the community, too often remain in jail before trial because they cannot post relatively modest amounts of bail, while other defendants who face more serious charges and have access to funds are released even if they pose a danger to the community or a substantial risk of flight.

Id. at 2. To that end, the Joint Committee first recommended that “New Jersey should move from a largely ‘resource-based' system of pretrial release to a ‘risk-based' system of pretrial release.” Id. at 8. Among several other proposals, the Joint Committee further recommended that “[a] statute should be enacted requiring that an objective risk assessment be performed for defendants housed in jail pretrial, using an assessment instrument that determines the level of risk of a defendant, ” and “[n]onmonetary conditions of release that correspond to the level of risk should be established.” Id.

         After conducting hearings on the Joint Committee's findings and recommendations, the State Legislature proposed and passed the Criminal Justice Reform Act, S. 946, A. 1910 (2014). On August 11, 2014, Governor Christie signed the CJRA into law. L. 2014, c. 31 (codified at N.J.S.A. 2A:162-15 to -26).

         Enforcement of the CJRA was predicated on ratification of a proposed amendment to the State Constitution that would authorize New Jersey courts to deny the pretrial release of certain defendants. See N.J.S.A. 2A:162-15 Note. In a state-wide referendum held on November 4, 2014, New Jersey voters approved such an amendment by a vote of 68% to 32%. Div. of Elections, Dep't of State, Official List: Public Question Results for 11/04/2014 General Election Public Question No. 1 (Dec. 2, 2014), http://nj.gov/state/elections/2014-results/2014-official-general-public-question-1.pdf.

         The amendment, which took effect on January 1, 2017, replaced Article 1, Paragraph 11 of the State Constitution (which had previously guaranteed all criminal defendants the right to be “bailable by sufficient sureties”) with the following:

All persons shall, before conviction, be eligible for pretrial release. Pretrial 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, 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. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.

N.J. Const. art. 1, ¶ 11. Notably, the amendment did not affect the “excessive bail” clause of the State Constitution, N.J. Const. art. 1, ¶ 12.

         B. The Criminal Justice Reform Act

         Through enactment of the CJRA, New Jersey sought to promote three separate goals in considering conditions of pretrial release: (1) reasonably assuring the person's appearance in court; (2) protecting the community and persons; and (3) preventing the obstruction of justice by persons awaiting trial. See N.J.S.A. 2A:162-15. To that end, the CJRA modified New Jersey's previous criminal justice system in several ways. First, the CJRA permits judges to order the pretrial detention of certain defendants if the court “finds clear and convincing evidence that no condition or combination of conditions can reasonably assure the effectuation of [the CJRA's] goals.” Id.; see also N.J.S.A. 2A:162-18(a)(1). Second, the CJRA shifts New Jersey's bail system away from one that is resource-based (i.e., posting money bail) and towards one that relies upon an objective evaluation of an individual defendant's level of risk. N.J.S.A. 2A:162-17, -25(d); see also Report of the Joint Committee on Criminal Justice at 8 (recommending that “New Jersey should move away from a largely ‘resource-based' system of pretrial release to a ‘risk-based' system of pretrial release”). Finally, the CJRA establishes speedy trial deadlines for defendants who are detained pending trial, N.J.S.A. 2A:162-22, which is not at issue in this case.

         1. The Pretrial Release Decision

         Once a complaint-warrant is issued based on a judicial officer's finding of probable cause, an “eligible defendant”[4]“shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessment with recommendations on conditions of release.” N.J.S.A. 2A:162-16(a). Within 48 hours of a defendant's commitment to jail, the court must make a “pretrial release decision.” N.J.S.A. 2A:162-16(b)(1).

         In making a pretrial release decision, the court must impose “the least restrictive condition, or combination of conditions, that the court determines will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.” N.J.S.A. 2A:162-17(d)(2). Thus, the purposes of pretrial release are enlarged to address concerns not only of appearance in court but also protection of the safety of other persons and the community and deterring obstruction of the criminal justice process - concerns not normally addressed through monetary bail.

         To assist in the pretrial release decision-making process, the CJRA provides a five-stage, hierarchical process for courts to follow. Robinson, 229 N.J. at 55-57. First, the court must order that a defendant be released on his own personal recognizance or an unsecured bond if such release is adequate to ensure the defendant's appearance in court and safety of the public. N.J.S.A. 2A:162-16(b)(2)(a), -17(a). Second, if release on personal recognizance is inadequate, the court may release the defendant on “a non-monetary condition or conditions, [5] with the condition or conditions being the least restrictive condition or combination of conditions” that are adequate to ensure the defendant's appearance in court and the safety of the public. N.J.S.A. 2A:162-16(b)(2)(b), -17(d)(2) (emphasis added.) Third, if non-monetary conditions are inadequate, the court may release the defendant subject to monetary bail, but only to reasonably assure the defendant's appearance in court. N.J.S.A. 2A:162-16(b)(2)(c), -17(c).[6] Fourth, if the above non-monetary conditions are insufficient, the court may release the defendant subject to a combination of monetary and non-monetary conditions reasonably calculated to assure the defendant's appearance in court and safety of the public. N.J.S.A. 2A:62-16(b)(2)(c), -17(d). Fifth, if the prosecutor has moved for pretrial detention and a judge determines no combination of monetary and non-monetary conditions are adequate to ensure the defendant's appearance in court or safety of the public, the court may order that the defendant remain detained pending a pretrial detention hearing. N.J.S.A. 2A:162-16(b)(2)(d), -18(a)(1).

         Before making any pretrial release decision for an eligible defendant, a judge is required to consider, but is not bound by, the Pretrial Services Program's risk assessment and recommendations on conditions of release (described below). N.J.S.A. 2A:162-16. “If the court enters an order that is contrary to a recommendation made in a risk assessment when determining a method of release or setting release conditions, the court shall provide an explanation in the document that authorizes the eligible defendant's release.” N.J.S.A. 2A:162-23(emphasis added).

         2. The Risk Assessment Instrument

         Under the CJRA, the Pretrial Services Program's risk assessment must be conducted using a “risk assessment instrument” that is approved by the Administrative Director of the New Jersey Courts. N.J.S.A. 2A:162-25(c). This instrument must be “objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release.” N.J.S.A. 2A:162-25(c)(1).

         In partnership with the Laura and John Arnold Foundation, the New Jersey courts adopted an automated risk assessment instrument that contains a risk measurement component, called the Public Safety Assessment (“PSA”), as well as a risk management component, called the Decision Making Framework (“DMF”). Glenn A. Grant, J.A.D., New Jersey Courts, 2016 Report to the Governor and Legislature at 4 (Dec. 31, 2016), available at https://www.judiciary.state.nj.us/courts/assets/criminal/ 2016cjrannual.pdf.

         a. The Public Safety Assessment

         Under the risk assessment instrument adopted by the New Jersey courts, the state police must first gather criminal history information from various law enforcement and court databases, including the N.J. State Police criminal case history system, the PROMIS/GAVEL criminal database, the MACS municipal court database, and other sources. State v. C.W., 449 N.J.Super. 231, 238-39 (Mar. 21, 2017) (citing N.J. Attorney General Law Enforcement Directive No. 2016-6 at 15-16 (October 11, 2016), available at http://www.nj.gov/oag/dcj/agguide/ directives/2016-6Law-Enforcement.pdf). The PSA then uses the information derived from these sources to address nine risk factors: (1) the defendant's age at the time of arrest; (2) whether the offense charged is “violent”; (3) other charges pending against the defendant at the time of the alleged offense; (4) prior disorderly persons convictions; (5) prior indictable convictions; (6) prior “violent” convictions; (7) prior failures to appear at a pre-deposition court date within the two years preceding the alleged offense; (8) prior failures to appear at a pre-disposition court date more than two years preceding the alleged offense; and (9) prior sentences to incarceration of 14 days or more. C.W., 449 N.J.Super. at 239; see also ACLU of New Jersey, NACDL, and N.J. Office of the Public Defender, The New Jersey Pretrial Justice Manual at 8 (Dec. 2016), available at https://www.nacdl.org/NJPretrial/. These objective risk factors are race and gender neutral, and do not require the police to interview the defendant. 2016 Report to the Governor and Legislature at 4.

         Using an algorithm, the automated process generates the PSA, which “scores” three different categories: (1) Failure to Appear (“FTA”); (2) New Criminal Activity (“NCA”); and (3) New Violent Criminal Activity (“NVCA”).

         i. Failure to Appear Score

         A defendant's FTA score, which is used to calculate the risk that a defendant will fail to appear at future court proceedings, is calculated using the following framework: (1) if the defendant has a pending charge against him he receives one point; (2) one point is added if the defendant has a prior conviction; (3) another point is added if the defendant failed to appear at a pre-disposition court date more than two years ago; and (4) if the defendant failed to appear at a predisposition court date within two years of the alleged offense, two point are added (and if the defendant failed to appear at more than one pre-disposition court dates within the past two years, four points are added). The New Jersey Pretrial Justice Manual at 8. The defendant's raw score is then converted into a six-point scale, with one being the lowest score a defendant can receive and six being the highest. Id.

         ii. New Criminal Activity Score

         A defendant's NCA score, which is used to predict the risk that the defendant will commit new criminal activity while on release, is calculated using the following framework: (1) if the defendant is 22 years old or younger he receives two points; (2) three points are added if there were pending charges against the defendant at the time of the arrest; (3) one point is added if the defendant has a prior disorderly persons offense; (4) another point is added if the defendant has a prior conviction for an indictable offense; (5) one more point is added if the defendant has been convicted of a “violent” crime on one or two occasions (if there are three or more convictions for crimes of violence, two points are added); (6) if the defendant failed to appear at a pre-disposition court date within two years of the alleged offense, one point is added (and if the defendant failed to appear at more than one pre-disposition court dates within the past two years, two points are added); and (7) if the defendant has previously been sentenced to a term of incarceration, two more points are added. Id. Again, the defendant's raw score is converted into a six-point scale, with one being the lowest score a defendant can receive and six being the highest. Id.

         iii. New Violent Criminal Activity Flag

         Finally, a score is generated to determine if a criminal defendant should be flagged for NVCA, which indicates that there is a greater statistical likelihood the defendant will engage in new violent criminal activity if released. A defendant receives a NVCA flag if he scores four or more points under the following framework: 1) a defendant receives two points if the current offense is considered “violent”; 2) one point is added if the offense is “violent” and the defendant is under 21; 3) an additional point is added when the defendant has pending charges against him at the time of the alleged offense; 4) one point is added if the defendant has a prior conviction; and 5) one more point is added if the defendant has one or two prior “violent” convictions (if the defendant has three or more he receives two points). Id. at 9. Under the CJRA, a NVCA flag “make[s] release less likely, ” and criminal defendants “who are released after receiving a flag will be released under more onerous conditions.” Id.

         b. The Decision Making Framework

         After the PSA scores are calculated, the Pretrial Services Agency provides a recommendation to the judge in a “Decision Making Framework” about whether a defendant should be released pending trial and, if so, under what conditions. Id. at 10.

         The Decision Making Framework recommends a Pretrial Monitoring Level (“PML”) for each criminal defendant, which ranges from release on one's own recognizance (“ROR”) to pretrial detention. Id. A defendant released ROR will have no conditions or restrictions placed on them. Id. At PML 1, a defendant is required to report to a pretrial services officer by phone once per month. Id. At PML 2, a defendant must report to a pretrial services officer once a month in person, once a month by telephone, and be subject to monitored conditions such as a curfew. Id. At PML 3, a defendant is monitored in-person or by phone every week, and he is subject to additional monitored conditions. Id. At PML 3 Plus Electronic Monitoring or Home Detention (“PML 3”), a defendant is subject to all the same conditions previously described, but may also be confined to their home and/or required to wear a GPS monitoring device on their ankle at all times. Id. Finally, as an option of last resort, a defendant will be detained in jail pending trial. Id.

         The DMF is a four-step process. First, as described in See Section II.B.2.a, supra, the defendant's PSA is completed to produce FTA and NCA scores and a flag for NVCA. Id. Second, the court determines whether the pending charges are serious enough on their own to warrant a recommendation of “release not recommended; if released maximum conditions, ” irrespective of the PSA. Id. Such charges include murder, aggravated manslaughter, aggravated sexual assault, and carjacking. Id. Pretrial detention (or PML 3, if released) is also recommended when the defendant receives an NVCA flag in the PSA and the charged offense is “violent.” Id. Third, the court applies the FTA and NCA scores to a DMF matrix. Id. at 11 (chart describing DMF matrix.) Fourth, the court determines whether the defendant has been charged with a No Early Release Act crime. Id. (citing N.J.S.A. 2C:43-7.2, 30:4-123.51(b)). If so, the recommended PML is increased by one level (e.g., from ROR to PML 1 or from PML 1 to PML 2). The New Jersey Pretrial Justice Manual at 11.

         3. The Pretrial Detention Hearing

         If a prosecutor applies for pretrial detention, [7] the court must hold a pretrial detention hearing no later than the defendant's first appearance or within three days of the prosecutor's motion. N.J.S.A. 2A:162-19(d)(1). The court may, however, grant a continuance of up to three days upon request by the prosecutor or up to five days upon request by the defendant. Id.

         At the pretrial detention hearing, the defendant has a right to be represented by counsel and, if indigent, have counsel appointed. N.J.S.A. 2A:162-19(e)(1). The defendant also has the right to testify, present witnesses, cross-examine any of the prosecutor's witnesses, and present information by proffer. Id. The prosecutor, meanwhile, carries the burden to establish probable cause that the eligible defendant committed the predicate offense. N.J.S.A. 2A:162-19(e)(2).

         Ultimately, the court may order the defendant detained only if the judge finds by “clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release[, ] or combination of monetary bail and conditions” are adequate to ensure the defendant's appearance in court, the safety of the public, and that the eligible defendant will not obstruct or attempt to obstruct justice. N.J.S.A. 2A:162-18(a)(1), -19(e)(3).

         In making a pretrial detention hearing determination, the court may take into account information including: (a) the nature and circumstances of the offense charged; (b) the weight of the evidence against the eligible defendant; (c) the history and characteristics of the eligible defendant; (d) the nature and seriousness of the danger that would be posed by the eligible defendant's release; (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; and (f) the PSA and DMF prepared by the Pretrial Services Program (described above). N.J.S.A. 2A:162-20. Thus, at the detention hearing, the PSA and DMF scores are not binding or even presumptive of the judge's determination of detention or release, but are factors that must be considered, along with others, to adjudicate whether the prosecution has met its burden of detention.

         If the court orders a defendant detained pending trial, the judge must “include written findings of fact and a written statement of . . . reasons” in an order. N.J.S.A. 2A:162-21(a). If the court authorizes a defendant's release contrary to the Pretrial Services Program's recommendation, “the court shall provide an explanation” in the order of release. N.J.S.A. 2A:162-23(a)(2).

         A defendant has the right to appeal a judge's pretrial detention hearing decision. N.J.S.A. 2A:162-18(c). Any such appeal “shall be heard in an expedited manner.” Id.

         Additionally, under the New Jersey Court Rules, “a Superior Court may review the conditions of pretrial release . . . on its own motion, or upon motion by the prosecutor or the defendant alleging that there has been a material change in circumstance that justifies a change in conditions.” N.J.S.A. 3:26-2(c)(2). Under this Rule, any review of conditions “shall be decided within 30 days of the filing of the motion.” Id.

         C. Effect of the CJRA on New Jersey's Criminal Justice System

         The Criminal Justice Reform Act took effect on January 1, 2017. N.J.S.A. 2A:162-15. This reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial, as shown by the following statistics.

         According to statistics published by the New Jersey Courts, on June 30, 2017, there were 5, 717 inmates pending trial. New Jersey Courts, CJRA Statistics, Chart C, available at https://www.judiciary.state.nj.us/courts/assets/criminal/cjrearl yreport1.pdf. By comparison, on the same day in 2015, there were 8, 845 inmates waiting for trial. Id. This drop in the pretrial jail population represents a 35.4% decrease over a two-year period. Id.; see also Smith Decl. at ¶ 12.

         Between January 1 and June 30, 2017, 9.9% of eligible defendants were released on their own recognizance, 21.5% were released under PML 1, 14.7% were released under PML 2, 25.8% were released under PML 3, 10.8% were released under PML 3, and only 14.2% were detained. CJRA Statistics, Chart A.

         Furthermore, detention motions have not been automatically granted. Over the same six-month period, for example, 60% of prosecutors' detention motions were granted, while 40% were denied. CJRA Statistics, Chart B.

         D. Plaintiff Holland

         On April 6, 2017, Holland was arrested and charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(B)(1). (Exs. A, B, & C to Feldman Decl.) According to police records, Holland engaged in an altercation with an unnamed individual in the parking lot of Joe's Tavern in Sicklerville, New Jersey. (Holland Decl. at ¶ 7; Ex. C to Feldman Decl.) First, Holland allegedly struck the unnamed individual in the face, causing him to fall to the ground. (Id.) Then, once the unnamed individual was on the ground, Holland allegedly “continued to strike [him] repeatedly about the head and face causing serious bodily harn [sic][, ]” including multiple face fractures. (Id.) According to police records, Holland fled the scene and was later arrested at his home, where “[h]is clothing was covered in fresh blood.” (Id.)

         The Pretrial Services Program in Camden County collected information for Holland's Public Safety Assessment for determination of detention or release by the judge.[8] As the parties acknowledged at oral argument, Holland ultimately received a PSA score of 2 (out of 6) for Failure to Appear, a score of 2 (out of 6) for New Criminal Activity, and was flagged for NVCA. [Docket Item 42; see also Docket Item 43.][9] Due to the NVCA flag, the DMF generated by the Pretrial Services Program recommended that Holland be detained pending trial. (Feldman Decl. ¶ 7.)

         Consistent with the CJRA and Attorney General Directive 2016-6, Section 7.4.1, Camden County Assistant Prosecutor Leo Feldman prepared a motion for Holland's pretrial detention. (Feldman Decl. at ¶ 8.) On April 7, 2017, Assistant Prosecutor Geraldine Zidow submitted a Notice to the Camden County Superior Court, explaining that the State planned to move for Holland's pretrial detention. (Ex. E of Feldman Decl.) Assistant Prosecutor Zidow also filed a Certification, affirming that Holland “is charged with a crime and there is a serious risk that: the defendant will not appear in court as required [and] the defendant will pose a danger to any other person or the community.” (Id.)

         Prior to Holland's pretrial detention hearing, Assistant Prosecutor Feldman met with Holland's court-appointed attorney, Brad Wertheimer, Esq. (Feldman Decl. ¶ 9.) At this meeting, Mr. Wertheimer agreed to recommend to his client that, in exchange for Prosecutor Feldman withdrawing the prosecution's motion for pretrial detention, Holland would agree to be released under PML Level 3, which would include house arrest (except for ...


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