In the Matter of the Request to Release Certain Pretrial Detainees (085186)(Statewide)

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.

In the Matter of the Request to Release Certain Pretrial Detainees
(M-550-20) (085186)

Argued January 20, 2021 -- Decided February 11, 2021

RABNER, C.J., writing for the Court.

This Order to Show Cause raises questions about the impact of the COVID-19
pandemic and the suspension of in-person criminal jury trials on defendants who have
been detained pretrial.

Under the Criminal Justice Reform Act (CJRA or Act), defendants who pose a
serious risk of non-appearance, danger, or obstruction can be detained before trial if no
combination of conditions of release will reasonably guard against those risks. Because
criminal jury trials remain suspended, the length of pretrial detention has been extended
in many cases.

In response to the present situation, the Office of the Public Defender and the
American Civil Liberties Union of New Jersey jointly seek two forms of relief: (1) the
release of all defendants detained for six months or longer whose most serious charge is a
second-degree offense or lower, with an opportunity for the State to object in individual
cases and seek to justify continued detention under an enhanced burden of proof; and (2)
new detention hearings for all defendants detained for six months or longer who are
charged with a first-degree offense and entitled to a presumption of release. Movants
rely on constitutional and statutory bases in support of their requests for relief.

Due process concerns can impose limits on pretrial detention. Courts look to
various considerations to assess that type of due process challenge, not just the length of
detention. The fact-specific inquiry called for is best conducted on an individual basis in
order to balance the relevant factors and assess the level of risk each defendant presents.
By contrast, broad-based relief for large categories of defendants could sweep in cases in
which release from detention would not be appropriate.

The Court declines to grant relief on a categorical basis for other reasons as well.
Movants argue that prolonged detention before trial could raise serious due process
concerns, but they do not contend the statutory scheme is unconstitutional at this time.
As a result, the doctrine of judicial surgery, which is designed to save an otherwise
unconstitutional statute, is not available. Nor can the Court exercise its rulemaking
authority to amend the substance of the Act.
1
HELD: *Section 19(f) of the CJRA offers a path for potential relief under the
present circumstances. Under that provision, N.J.S.A. 2A:162-19(f), individual
defendants can apply to reopen detention hearings if they can present information that
was not known at the time of the initial hearing and that “has a material bearing” on the
release decision.

*The unexpected duration of the pandemic coupled with the continued
suspension of jury trials, with no clear end date for either, constitutes new information
within the meaning of N.J.S.A. 2A:162-19(f). Materiality presents a separate issue and
depends on a defendant’s individual circumstances. To assess whether delays caused by
the pandemic are material to the level of risk a defendant poses, trial judges can consider
the following factors: (1) the length of detention to date as well as the projected length of
ongoing detention; (2) whether a defendant has been or will be in detention longer than
the likely amount of time the person would actually spend in jail if convicted; (3) the
existence and nature of a plea offer; (4) a defendant’s particularized health risks, if any,
and whether they present a heightened risk the individual will contract COVID-19; and
(5) other factors relevant to pretrial detention that are outlined in N.J.S.A. 2A:162-20.

*Defendants who have been detained for at least six months, and can make
a preliminary showing that they are entitled to relief based on one or more of the above
factors, have the right to reopen their detention hearings under section 19(f). Trial judges
have discretion to resolve motions that do not meet both conditions without holding a
hearing. Hearings should be conducted on an expedited basis in the trial court, and
reviewed in the same manner on appeal. Defendants subject to a presumption of
detention -- those charged with murder or facing a sentence of life imprisonment -- will
likely not be eligible for new hearings.

1. Movants concede the CJRA is constitutional but argue that continued detention raises
potentially serious due process concerns. The pretrial detention process is constitutional
so long as it serves regulatory rather than punitive purposes. But if pretrial detention
under a regulatory scheme is significantly prolonged, a defendant’s confinement may
become punitive. Whether the length of detention violates due process in that way
requires assessment on a case-by-case basis; due process is a flexible concept that does
not necessarily set a bright line limit for length of pretrial confinement. (pp. 10-11)

2. The CJRA contains various time limits designed to move cases toward trial. The
Court does not find that the pandemic, along with the accompanying suspension of in-
person criminal jury trials, has transformed the CJRA’s overall approach to pretrial
detention into a punitive scheme. Yet individual cases, which are not the subject of the
Order to Show Cause, can be subject to challenge on due process grounds. The length of
detention alone is not dispositive. A more comprehensive, fact-specific inquiry in each
case is needed, and relief tied only to the length of detention for large categories of
defendants would not be appropriate for a variety of reasons. Cases are best examined on
2
an individual basis, which the CJRA provides for under the present circumstances. The
constitutional remedies movants propose -- judicial surgery and the Court’s rulemaking
authority -- are thus not well-suited for the current circumstances. (pp. 12-17)

3. N.J.S.A. 2A:162-19(f) presents a path for individual defendants to argue against
continued detention when (1) there is new information, or a change in circumstances,
(2) that is material to the release decision. As to the first prong, the Court has found “that
the worldwide pandemic that has afflicted New Jersey and its prison system amounts to a
change in circumstances” within the meaning of Rule 3:21-10(b)(2). In re Request to
Modify Prison Sentences, 242 N.J. 357, 379 (2020). That finding logically extends to
section 19(f). Section 19(f)’s second prong -- materiality -- will vary by defendant and
turn on the particular facts of each case. The critical question at a hearing that is
reopened is not whether the initial detention decision was correct, but whether the
circumstances at the time of the later hearing warrant continued detention. That issue
calls for a renewed examination of whether any combination of conditions would
reasonably assure against the risk of non-appearance, danger, or obstruction in light of
delays caused by the pandemic. N.J.S.A. 2A:162-18, -19(f). (pp. 17-20)

4. The Court explains in detail the five factors courts can consider to assess those risks.
Noting it is far less likely courts would find material changes in the case of defendants
detained for less than six months, the Court holds that defendants have the right to reopen
detention hearings under N.J.S.A. 2A:162-19(f) if they (1) have been detained for at least
six months and (2) can make a preliminary showing that, based on one or more of the five
factors, they are entitled to relief. (Because disorderly persons offenses are punishable by
up to six months in jail, judges have discretion to entertain and review motions from
defendants charged only with such an offense before those defendants have been detained
for six months.) Those threshold requirements are meant to limit hearings to defendants
who are better able to show a material change in the level of risk they present, in the
context of the pandemic and the delays it has caused. Trial judges have discretion to
resolve motions that do not meet both conditions without holding a hearing. (pp. 20-25)

5. New hearings may proceed before the same judge who conducted the original hearing
or another judge in the vicinage. The Court directs that trial judges conduct reopened
hearings in appropriate cases on an expedited basis, and that any appeals be reviewed in
the same manner. The Court asks the Director of the Administrative Office of the Courts
to help implement a timely process at the trial and appellate levels. (p. 26)

6. Movants identify N.J.S.A. 2A:162-21(b) as an alternative statutory basis for relief.
The Court explains why it has instead focused on section 19(f). (pp. 26-27)

The request for relief is GRANTED IN PART and DENIED IN PART.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER’s opinion.
3
 SUPREME COURT OF NEW JERSEY
M-550 September Term 2020
085186

In the Matter of the Request to
Release Certain Pretrial Detainees

On an Order to Show Cause to Address the Release
of Certain Individuals Detained Pretrial, Among
Other Relief Requested.

Argued Decided
January 20, 2021 February 11, 2021

Joseph E. Krakora, Public Defender, argued the cause for
the Office of the Public Defender (Joseph E. Krakora,
Public Defender, attorney; Joseph E. Krakora, Joseph J.
Russo, Assistant Public Defender, Alison Perrone, First
Assistant Deputy Public Defender, Laura B. Lasota,
Assistant Deputy Public Defender, and Elizabeth C. Jarit,
Assistant Deputy Public Defender, on the briefs).

Alexander Shalom argued the cause for the American
Civil Liberties Union of New Jersey (American Civil
Liberties Union of New Jersey Foundation, attorneys;
Alexander Shalom and Jeanne LoCicero, on the briefs).

Claudia Joy Demitro, Deputy Attorney General, argued
the cause for the Attorney General of New Jersey,
(Gurbir S. Grewal, Attorney General, attorney; Carol M.
Henderson, Assistant Attorney General, of counsel and
on the brief, and Claudia Joy Demitro, Jennifer E.
Kmieciak, Deputy Attorney General, and Mercedes N.
Robertson, Deputy Attorney General, of counsel and on
the brief).

1
 Anthony J. Robinson, First Assistant Warren County
Prosecutor, argued the cause for the County Prosecutors
Association of New Jersey (Esther Suarez, President,
County Prosecutors Association of New Jersey, attorney;
Anthony J. Robinson, John McNamara, Jr., Special
Deputy Attorney General/Acting Chief Assistant Morris
County Prosecutor, Paul H. Heinzel, Assistant Somerset
County Prosecutor, and Jessica Marshall, Special Deputy
Attorney General/Assistant Morris County Prosecutor, on
the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

This Order to Show Cause raises questions about the impact of the

COVID-19 pandemic and the suspension of in-person criminal jury trials on

defendants who have been detained pretrial.

Under the Criminal Justice Reform Act (CJRA or Act), defendants who

pose a serious risk of non-appearance, danger, or obstruction can be detained

before trial if no combination of conditions of release will reasonably guard

against those risks. N.J.S.A. 2A:162-15. According to the Administrative

Office of the Courts (AOC), more than 4,900 defendants were detained and

awaiting trial in late January 2021. Few criminal jury trials have been held

since March 2020, however, because of the health risks that in-person trials

pose to jurors, participants, and members of the public with whom they

interact. Because criminal jury trials remain suspended, the length of pretrial

detention has been extended in many cases.

2
 In response to the present situation, the Office of the Public Defender

and the American Civil Liberties Union of New Jersey (ACLU) jointly seek

two forms of relief: (1) the release of all defendants detained for six months or

longer whose most serious charge is a second-degree offense or lower, with an

opportunity for the State to object in individual cases and seek to justify

continued detention under an enhanced burden of proof; and (2) new detention

hearings under N.J.S.A. 2A:162-19(f) for all defendants detained for six

months or longer who are charged with a first-degree offense and entitled to a

presumption of release. Movants rely on constitutional and statutory bases in

support of their requests for relief.

We recognize that due process concerns can impose limits on pretrial

detention. Courts look to various considerations to assess that type of due

process challenge, not just the length of detention. The fact-specific inquiry

called for is best conducted on an individual basis in order to balance the

relevant factors and assess the level of risk each defendant presents. By

contrast, broad-based relief for large categories of defendants could sweep in

cases in which release from detention would not be appropriate.

We decline to grant relief on a categorical basis for other reasons as

well. Movants argue that prolonged detention before trial could render the

CJRA punitive, rather than regulatory, and thereby raise serious due process

3
concerns. But they do not contend the statutory scheme is unconstitutional at

this time. As a result, the doctrine of judicial surgery, which is designed to

save an otherwise unconstitutional statute, see State v. Natale, 184 N.J. 458,

485-86 (2005), is not available. Nor can the Court exercise its rulemaking

authority to amend the substance of the Act. See N.J. Const. art. VI, § 2, ¶ 3;

Winberry v. Salisbury, 5 N.J. 240, 247-48 (1950).

Section 19(f) of the CJRA offers a path for potential relief under the

present circumstances. See N.J.S.A. 2A:162-19(f). Under that provision,

individual defendants can apply to reopen detention hearings if they can

present information that was not known at the time of the initial hearing and

that “has a material bearing” on the release decision. Ibid.

We hold that the unexpected duration of the pandemic coupled with the

continued suspension of jury trials, with no clear end date for either,

constitutes new information within the meaning of the statute. Materiality

presents a separate issue and depends on a defendant’s individual

circumstances. To assess whether delays caused by the pandemic are material

to the level of risk a defendant poses, trial judges can consider the following

factors: (1) the length of detention to date as well as the projected length of

ongoing detention; (2) whether a defendant has been or will be in detention

longer than the likely amount of time the person would actually spend in jail if

4
convicted; (3) the existence and nature of a plea offer; (4) a defendant’s

particularized health risks, if any, and whether they present a heightened risk

the individual will contract COVID-19; and (5) other factors relevant to

pretrial detention that are outlined in N.J.S.A. 2A:162-20.

Defendants who have been detained for at least six months, and can

make a preliminary showing that they are entitled to relief based on one or

more of the above factors, have the right to reopen their detention hearings

under section 19(f). Such hearings should be conducted on an expedited basis

in the trial court, and reviewed in the same manner on appeal. Defendants

subject to a presumption of detention under the statute -- those charged with

murder or facing a sentence of life imprisonment -- will likely not be eligible

for new hearings. See N.J.S.A. 2A:162-19(b).

We therefore grant in part and deny in part the relief sought. Eligible

defendants may apply to reopen their detention hearings under section 19(f) at

this time.

I.

On December 4, 2020, the Office of the Public Defender and the ACLU

jointly applied to this Court to enter an Order to Show Cause. Movants seek

two types of relief:

5
 (1) the release of all defendants detained under the CJRA for

six months or longer whose most serious charge is a second-degree

offense or lower. If the State objected, it would have to

demonstrate beyond a reasonable doubt that no conditions would

reasonably assure against the serious and imminent risk of non-

appearance, danger, or obstruction. Judges or special masters

from a county other than where the case is assigned would preside

over matters in which an objection is raised; and

(2) new detention hearings under N.J.S.A. 2A:162-19(f) for

all defendants detained for six months or longer who are charged

with a first-degree offense and entitled to a presumption of release.

The Act’s clear and convincing evidence standard would apply to

the hearings, which judges or special masters from another county

would conduct.

Movants thus seek to modify the statute in two ways: requiring judges

to find that defendants pose a “serious and imminent” risk; and imposing a

higher standard of proof -- “beyond a reasonable doubt” in place of “clear and

convincing evidence.”

At the core of movants’ application is a simple reality: in-person

criminal jury trials have been suspended because of COVID-19, which has led

6
to the continued detention of many pretrial detainees. As of February 8, 2021,

according to the AOC, 4,937 detained defendants were being held pretrial on

the following categories of offenses: 1,842 on a first-degree offense; 1,780 on

a second-degree offense; 1,044 on a third-degree offense; 243 on a fourth-

degree offense; and 28 on a disorderly persons offense. 1

As of December 4, 2020, the Office of the Public Defender estimated

that about 650 of its clients charged with second-, third-, or fourth-degree

crimes had been detained for six months or longer, and that an additional 400

clients charged with first-degree offenses were in the same position.

The Court asked movants to present legal authority in support of their

position. Shortly after they submitted written arguments, the Court entered an

Order to Show Cause. The Attorney General and the County Prosecutors

Association of New Jersey (CPA) submitted briefs in opposition on December

30, 2020.

II.

We note certain basic points at the outset. First, each of the defendants

for whom relief is now sought had a court hearing after their arrest, at which

counsel represented them. See N.J.S.A. 2A:162-19(d), (e). At the hearings,

1
The numbers have been adjusted to account for eligible defendants detained
in more than one case.
7
judges considered a broad array of factors to assess the level of risk each

person posed. See id. at -20. The nature and degree of the charged offenses

were only part of that review.

At hearings that involved certain serious charges, a presumption of

detention applied, which a number of defendants were unable to rebut. See id.

at -19(b) (providing a rebuttable presumption of detention when the court finds

probable cause that a defendant committed murder or any crime that exposes

the person to life imprisonment).

In the larger group of cases that did not involve a presumption of

detention, courts found by clear and convincing evidence that no combination

of conditions of release “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.” Id. at -18(a)(1). Thus, each

defendant ordered detained pretrial presented a high level of risk in at least one

of three areas.

Second, the ongoing COVID-19 pandemic prompted the pending request

for relief. The parties differ about the impact of the pandemic in county jails.

Movants contend that inmates face a heightened risk of contracting COVID-19

in jail. They point to the number of documented cases and deaths among

8
inmates in New Jersey correctional facilities. As of February 9, 2021, there

have been 4,283 cases and 52 deaths. Dep’t of Corr., COVID 19 Updates,

https://www.state.nj.us/corrections/pages/COVID19Updates.shtml.

In response, the State highlights efforts to reduce the prison population

and prevent the spread of COVID-19 among prisoners. See In re Request to

Modify Prison Sentences, 242 N.J. 357, 381 n.3 (2020) (discussing consent

order to reduce the county jail population); Exec. Order No. 124 (April 10,

2020), 52 N.J.R. 963(a) (May 4, 2020) (creating process to identify and

furlough certain inmates in state prison); L. 2020, c. 111 (eff. Nov. 4, 2020)

(awarding public health emergency jail credits). The Attorney General also

points to data that reveals a drop in the number of reported recent cases and

deaths: 733 new cases for the week of May 27, 2020, compared to 164 new

cases the week of December 15; and 6 deaths since July with none since

September. See The Marshall Project, A State-by-State Look at Coronavirus

in Prisons, (as updated Jan. 29, 2021), https://www.themarshallproject.org/

2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.

We need not make specific findings here aside from recognizing the

obvious: COVID-19 has created an ongoing health crisis of enormous

proportions for all of society -- including individuals held in jail.

9
 III.

Movants identify two potential sources of authority for the relief they

seek -- constitutional and statutory. We begin with the constitutional points

raised.

Movants made significant and thoughtful concessions in their briefs and

at oral argument. They concede the CJRA is constitutional.2 They also stress

the law’s constitutionality is tied to a defendant’s right to a jury trial and the

ability to exercise that right within a reasonable period of time.

Movants submit they are pursuing relief now to ensure the continued

constitutionality of the Act. The thrust of their argument is that continued

detention raises potentially serious due process concerns that would require

intervention. They contend that prolonged detention of defendants pretrial

would render the Act punitive, rather than regulatory. See United States v.

Salerno, 481 U.S. 739, 746-48 (1987); Bell v. Wolfish, 441 U.S. 520, 535-40

(1979).

2
The CJRA, like any statute, is presumed constitutional. See Whirlpool
Props., Inc. v. Dir., Div. of Tax’n, 208 N.J. 141, 172 (2011); see also State v.
Ingram, 230 N.J. 190, 204-13 (2017) (holding that the State’s ability to
proceed by proffer at detention hearings under the Act comports with due
process); State v. Robinson, 229 N.J. 44, 74-76 (2017) (finding the Act’s
discovery provisions satisfy the requirements of due process).
10
 A.

It is clear that due process concerns impose limits on how long a

defendant may be held in custody before trial.

Pretrial detention schemes necessarily balance the liberty interest of

individuals presumed innocent against public safety concerns posed by high-

risk defendants. See Salerno, 481 U.S. at 748-51; Robinson, 229 N.J. at 68.

The process is constitutional so long as it serves regulatory rather than punitive

purposes. Salerno, 481 U.S. at 746-48; Bell, 441 U.S. at 535-40. But if

pretrial detention under a regulatory scheme is significantly prolonged, a

defendant’s confinement may become punitive. United States v. Theron, 782

F.2d 1510, 1516 (10th Cir. 1986).

Whether the length of detention violates due process in that way

“requires assessment on a case-by-case basis” because due process is a flexible

concept that “does not necessarily set a bright line limit for length of pretrial

confinement.” United States v. Orena, 986 F.2d 628, 630 (2d Cir. 1993)

(quoting United States v. Gonzales Claudio, 806 F.2d 334, 340 (2d Cir. 1986));

see also United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986)

(“Because due process is a flexible concept, arbitrary lines should not be

drawn regarding precisely when defendants adjudged to be flight risks or

dangers to the community should be released pending trial.”).

11
 The CJRA contains various time limits designed to move cases toward

trial. Aside from periods of excludable time, prosecutors must indict cases

within ninety days, N.J.S.A. 2A:162-22(a)(1)(a), and trials must commence

within 180 days for defendants who are detained, id. at -22(a)(2)(a). Of note

here, the Act provides for excludable time for “[t]he time resulting from

exceptional circumstances including . . . a natural disaster.” Id. at -22(b)(1)(f).

The statute also sets an overall limit of two years for pretrial detention,

excluding delays attributable to the defendant, if the prosecutor is not ready to

proceed to trial. Id. at -22(a)(2)(a). Otherwise, defendants “shall be released”

at the two-year mark subject to a number of potential conditions. Ibid.; id.

at -17 (listing possible conditions of release). The two-year limit is a

protective measure to guard against unduly prolonged detention. It is not a

goal used for case-management purposes, and cases should be resolved before

then whenever possible.

We do not find that the pandemic, along with the accompanying

suspension of in-person criminal jury trials, has transformed the CJRA’s

overall approach to pretrial detention into a punitive scheme. Yet individual

cases, which are not the subject of the Order to Show Cause, can be subject to

challenge on due process grounds based on the length of detention.

12
 Accetturo offers guidance on how to assess whether such a violation has

occurred:

[D]ue process judgments should be made on the facts
of individual cases, and should reflect the factors
relevant in the initial detention decision, such as the
seriousness of the charges, the strength of the
government’s proof that defendant poses a risk of flight
or a danger to the community, and the strength of the
government’s case on the merits. Moreover, these
judgments should reflect such additional factors as the
length of the detention that has in fact occurred, the
complexity of the case, and whether the strategy of one
side or the other has added needlessly to that
complexity. In some cases, the evidence admitted at
the initial detention hearing, evaluated against the
background of the duration of pretrial incarceration and
the causes of that duration, may no longer justify
detention.

[783 F.2d at 388.]

Relying on similar considerations, courts have found due process

violations in a number of individual cases. See, e.g., United States v. Ojeda

Rios, 846 F.2d 167, 168-69 (2d Cir. 1988) (32 months of pretrial detention);

Gonzales Claudio, 806 F.2d at 341-43 (26 months of detention expected

through trial).

In other matters, courts have found that lengthy detentions were not

excessive in light of the factual circumstances of those cases. See, e.g., United

States v. Briggs, 697 F.3d 98, 101-04 (2d Cir. 2012) (26 months of pretrial

detention); United States v. El-Hage, 213 F.3d 74, 78-82 (2d Cir. 2000) (30 to
13
33 months of detention expected through trial); United States v. El-Gabrowny,

35 F.3d 63, 65 (2d Cir. 1994) (27 months of detention expected through trial);

United States v. Millan, 4 F.3d 1038, 1044-49 (2d Cir. 1993) (30 to 31 months

of detention expected through a second trial); United States v. Zannino, 798

F.2d 544, 547-49 (1st Cir. 1986) (16 months of pretrial detention).

To be clear, as the Second Circuit has explained, “the length of detention

alone is not dispositive.” El-Hage, 213 F.3d at 79. A more comprehensive,

fact-specific inquiry in each case is needed. See El-Gabrowny, 35 F.3d at 65

(“[E]ach case must be examined on its own facts.”); Accetturo, 783 F.2d at

388 (“[D]ue process judgments should be made on the facts of individual cases

. . . .”).

As alluded to in Accetturo, relief tied only to the length of detention for

large categories of defendants would not be appropriate for a variety of

reasons. 783 F.2d at 388. Among them, such an approach could sweep in

cases in which defendants were responsible for delays, the complexity of the

case required more time to address issues before trial, or critical witnesses

were unavailable through no fault of either party. And, of course, not all

second-degree offenses or offenders are alike. Some matters are more serious

than others; some are supported by stronger or weaker proofs; and no two

14
offenders have the same history and characteristics or present precisely the

same degree of risk.

Once again, cases are best examined on an individual basis, which the

CJRA provides for under the present circumstances. For those reasons, we

find that the constitutional remedies movants propose -- judicial surgery and

the Court’s rulemaking authority -- are not well-suited for the current

circumstances.

B.

Courts engage in judicial surgery “when necessary” to “save an

enactment that otherwise would be constitutionally doomed.” Natale, 184 N.J.

at 485-86 (citing Town Tobacconist v. Kimmelman, 94 N.J. 85, 104 (1983)).

The tool is a way to resolve constitutional defects. See NYT Cable TV v.

Homestead at Mansfield, Inc., 111 N.J. 21, 27-28 (1988) (Handler, J.,

concurring) (“In necessitous circumstances when the constitutionality of a

statute is threatened, we have excised constitutional defects or engrafted new

meanings to assure its survival.”). Absent a constitutional violation, the

Attorney General argues, judicial surgery is inappropriate.

Courts strive to give effect to the Legislature’s intent. State v. J.V., 242

N.J. 432, 442 (2020). As a result, when part of a law is invalid, courts must

first decide whether the lawmakers wanted “the enactment [to] stand or fall as

15
a unitary whole.” State v. Lanza, 27 N.J. 516, 527 (1958); see also Inganamort

v. Borough of Fort Lee, 72 N.J. 412, 422 (1977); N.J.S.A. 1:1-10.

If a court concludes the Legislature would prefer that a law be altered or

narrowed, rather than struck down entirely, the court may engage in surgery to

remedy the flaw. See, e.g., Natale, 184 N.J. at 487 (eliminating presumptive

terms in sentencing to preserve the constitutionality of the criminal code);

Town Tobacconist, 94 N.J. at 103-04 (striking language from the Drug

Paraphernalia Act to avoid constitutional perils of vagueness and arbitrary

enforcement); Chamber of Commerce v. State, 89 N.J. 131, 161-62 (1982)

(striking language from the Strikebreakers Act to avoid a violation of the

Commerce Clause).

Under the circumstances of this matter, we decline to engage in judicial

surgery. That approach would work a wholesale change in an otherwise

constitutional statute to remedy circumstances best assessed on a case-by-case

basis.

C.

The same would be true if, in these circumstances, the Court were to

invoke its authority to “make rules governing the administration of all courts

in the State and, subject to the law, the practice and procedure in all such

courts.” N.J. Const. art. VI, § 2, ¶ 3. The Court’s rulemaking power,

16
moreover, does not extend to rewriting substantive legislation that is

constitutional. “While the courts necessarily make new substantive law

through the decision of specific cases coming before them, they are not to

make substantive law wholesale through the exercise of the rule-making

power.” Winberry, 5 N.J. at 248.

In sum, although we recognize that individual cases may present due

process concerns, we believe the constitutional remedies proposed are too

broad. We therefore turn to the statutory remedies advanced.

IV.

Movants highlight two statutory bases for relief, which we consider in

turn.

A.

N.J.S.A. 2A:162-19(f) allows for detention hearings to be reopened

when there is a material change in circumstances:

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

17
 [N.J.S.A. 2A:162-19(f) (emphases added); see also R.
3:4A(b)(3).]

Section 19(f) thus presents a path for individual defendants to argue

against continued detention when (1) there is new information, or a change in

circumstances, (2) that is material to the release decision. The clause does not

authorize relief for categories of defendants or empower courts to make

changes to the statutory scheme.

As to the first prong, in Request to Modify decided last June, the Court

addressed “issues relating to the impact of the coronavirus on individuals in

state prison and juvenile facilities.” 242 N.J. at 366. Among other issues, the

Court found “that the worldwide pandemic that has afflicted New Jersey and

its prison system amounts to a change in circumstances” within the meaning of

Rule 3:21-10(b)(2). Id. at 379.

Under that Rule, “[a] motion may be filed and an order may be entered

at any time . . . amending a custodial sentence to permit the release of a

defendant because of illness or infirmity of the defendant.” R. 3:21-10(b)(2).

To obtain relief, inmates must first establish, as “an essential predicate,” “that

a change of circumstances [has] occurred.” State v. Priester, 99 N.J. 123, 136

(1985). As the Court found, the COVID-19 pandemic satisfies that

requirement. Request to Modify, 242 N.J. at 379.

18
 The same finding logically extends to section 19(f). The unexpected

duration of the pandemic as well as the continued suspension of jury trials,

without a clear end date for either, constitutes new information or a change in

circumstances. See Comm. for Pub. Couns. Servs. v. Chief Justice of the Trial

Ct., 142 N.E.3d 525, 529-30 (Mass. 2020); Karr v. State, 459 P.3d 1183, 1186

(Alaska Ct. App. 2020).

Earlier last year, even experts could not predict the full scope, duration,

or impact of the pandemic on society, let alone on the court system. Because

of the health risk to jurors, witnesses, attorneys, staff, and judges, along with

members of the public with whom they interact, the Judiciary suspended

criminal jury trials in March 2020 and again in November 2020, after a brief

resumption of in-person trials. Sup. Ct. of N.J., Notice -- COVID-19

Coronavirus -- Status of Court Operation -- Immediate and Upcoming Plans, at

1 (Mar. 12, 2020); Sup. Ct. of N.J., Omnibus Order on COVID-19 Issues, at 2

(Mar. 27, 2020); Sup. Ct. of N.J., Notice and Order -- COVID-19 --

Suspension of New In-Person Jury Trials and In-Person Grand Jury Sessions;

Revised End-Dates for Excludable Time, at 3 (Nov. 16, 2020) (Nov. 16, 2020

Notice and Order).3

3
Copies of Court orders, notices, and press releases related to COVID-19 are
available on the Judiciary’s website. See https://njcourts.gov/attorneys/
notices.html; https://njcourts.gov/public/pr.html.
19
 Section 19(f)’s second prong -- materiality -- will vary by defendant and

turn on the particular facts of each case. The critical question at a hearing that

is reopened is not whether the initial detention decision was correct, but

whether the circumstances at the time of the later hearing warrant a

defendant’s continued detention. In the words of the statute, does the new

information have a “material bearing” on the standard that governs release

decisions? That issue, in turn, calls for a renewed examination of whether any

combination of conditions would reasonably assure against the risk of non -

appearance, danger, or obstruction in light of delays caused by the pandemic.

N.J.S.A. 2A:162-18, -19(f).

Trial courts can consider a number of factors to assess those risks:

1. The length of detention to date as well as the projected length of

ongoing detention. See Commonwealth v. Lougee, 147 N.E.3d 464, 475

(Mass. 2020); see also El-Hage, 213 F.3d at 78-79 (considering the expected

length of pretrial detention through the end of trial in the context of a due

process challenge); El-Gabrowny, 35 F.3d at 65 (same); Millan, 4 F.3d at 1044

(same); Gonzales Claudio, 806 F.2d at 341 (same).

The Judiciary is committed to restart jury trials as soon as practicable.

The Court did so temporarily from September to mid-November 2020. In that

limited time, trial courts conducted about a dozen trials yet were able to

20
resolve more than 340 civil and criminal cases by scheduling actual trial dates

in those matters. 4 Nov. 16, 2020 Notice and Order, at 2; Press Release, New

Jersey Courts, New Jersey Supreme Court Order Suspends Jury Trials Amid

Second Wave of COVID-19 Pandemic (Nov. 16, 2020). As the second wave

of the pandemic crests and more people are vaccinated, we hope to able to

resume trials later this year. That said, it is difficult to be precise in estimating

the projected length of detention at this time because of the ongoing and

evolving nature of the pandemic.

2. Whether a defendant has been or will be in detention longer than the

likely amount of time the person would actually spend in jail if convicted. In

many cases, judges found that individual defendants posed a high risk o f non-

appearance at their initial detention hearings. Defendants who have since

served a substantial amount of time in custody, which will be credited toward

their sentence, might be more inclined to appear for court events rather than

risk additional penalties by failing to show up. Today’s widespread use of

4
Less than two percent of criminal cases are resolved through trials. Nat’l
Ctr. for State Cts., Interactive Caseload Data Displays, Court Statistics Project,
www.courtstatistics.org/court-statistics/interactive-caseload-data-displays (last
updated Dec. 9, 2020) (noting that in New Jersey in 2019 there were only 573
criminal jury trials and 106 criminal bench trials out of 48,264 dispositions).
The pressure of an actual trial date is often the catalyst for resolving a criminal
charge.

21
remote court proceedings might also bear on the risk of non-appearance.

Moreover, the Judiciary should attempt to ensure that defendants spend no

more time in custody than they would have served if the court system were

fully operational. That entails consideration of the sentencing range, the likely

sentence, and any applicable period of parole ineligibility.

For this factor, judges should weigh the actual amount of time to be

spent in jail in case of a conviction, against the expected length of pretrial

detention. A fourth-degree offender facing a statutory maximum of eighteen

months’ incarceration, and considerably less actual time in jail in most cases,

will naturally be in a different position than a first-degree offender facing a

range of ten to twenty years in prison. See N.J.S.A. 2C:43-6(a).

3. The existence and nature of a plea offer. Plea offers present similar

considerations. Courts should weigh how much time a defendant would spend

in jail under a plea offer as compared to the expected amount of time in

pretrial detention. We anticipate that prosecutors will act in good faith and

continue to extend plea offers in the same manner they did before the

pandemic.

4. A defendant’s particularized health risks, if any, and whether they

present a heightened risk the individual will contract COVID-19. Specific

health risks of a defendant who is required to remain in custody may bear on

22
the level of risk posed and factor into whether the aim of pretrial detention can

be met through other conditions. See Lougee, 147 N.E.3d at 476 (“A judge

ruling on a motion for reconsideration [of pretrial detention] should . . .

consider the health risks to the defendant in determining whether there are

conditions of release that will reasonably assure the safety of any other person

or the community.”); see also United States v. Shaheed, 455 F. Supp. 3d 225,

235, 238 (D. Md. 2020) (weighing defendant’s asthma and risk of harm from

COVID-19, among other considerations, at a motion to reopen a detention

hearing).

As part of their analysis, courts may consider whether a defendant’s

health has deteriorated since the detention hearing and is now more susceptible

to serious health consequences in jail -- including a heightened risk of

contracting COVID-19 -- and how that might affect the risk of non-

appearance, danger, or obstruction a defendant poses. This factor does not

encompass a generalized fear of contracting COVID-19 or some other illness

in jail. See Request to Modify, 242 N.J. at 379.

5. Other factors relevant to pretrial detention that are outlined in

N.J.S.A. 2A:162-20. Section 20 lists various factors courts may take into

account at the original detention hearing. Trial judges are not required to

reassess all of them anew at a reopened hearing. In some instances, for

23
example, the nature and seriousness of the offense will remain the same. See

N.J.S.A. 2A:162-20(a). But other factors might have changed with the passage

of time, such as the strength of the State’s case. See N.J.S.A. 2A:162-20(b). It

might be weaker if a witness is no longer available, or stronger as a result of

additional evidence gathered during an expanded investigation.

A number of the above five factors might well have an effect on whether

a defendant will appear for a court proceeding as required. N.J.S.A. 2A:162-

18(a)(1). Their impact on the risk of danger or obstruction, which are also

critical, is less clear, particularly for defendants charged with more serious

offenses who pose a continuing public safety concern or have a long record of

criminal behavior. Nonetheless, we do not rule out that certain defendants

may be able to show material changes in those risk areas as well.

We note that a court’s decision on pretrial release reflects an overall

evaluation of the level of risk of non-appearance, danger, and obstruction. A

change in any one area might -- or might not -- affect the overall calculus.

Movants focused their application on defendants who have been detained

for six months or longer. We agree with that approach. It is far less likely

courts would find material changes in the case of defendants detained for less

time.

24
 We therefore hold that defendants have the right to reopen their

detention hearings under N.J.S.A. 2A:162-19(f) if they (1) have been detained

for at least six months and (2) can make a preliminary showing that, based on

one or more of the above factors, they are entitled to relief.5 Those threshold

requirements are meant to limit hearings to defendants who are better able to

show a material change in the level of risk they present, in the context of the

pandemic and the delays it has caused. Trial judges have discretion to resolve

motions that do not meet both conditions without holding a hearing. Cf. R.

3:21-10(c) (noting that “[a] hearing need not be conducted on a motion” for a

change in sentence under Rule 3:21-10(b)).

Defendants subject to a presumption of detention under the statute will

likely not be eligible for new hearings because the seriousness of the offense

charged -- murder or a crime that subjects a defendant to a sentence of life

imprisonment -- weighs heavily in the release decision. N.J.S.A. 2A:162-

19(b), -20(a). We note that movants did not seek new detention hearings for

that group of defendants.

5
Because disorderly persons offenses are punishable by up to six months in
jail, N.J.S.A. 2C:43-8, judges have discretion to entertain and review motions
from defendants charged only with such an offense before those defendants
have been detained for six months.
25
 New hearings may proceed before the same judge who conducted the

original detention hearing or another judge in the vicinage. An application

under section 19(f) does not imply that the initial detention decision was

erroneous or that the judge cannot reconsider it. As a result, there is no reason

to transfer hearings based on new information to a different vicinage or speci al

master, as movants requested.

Relying on the Court’s administrative authority, we direct that trial

judges conduct reopened hearings in appropriate cases on an expedited basis,

and that any appeals be reviewed in the same manner. See N.J. Const. art. VI,

§ 2, ¶ 3. We ask the Director of the Administrative Office of the Courts to

help implement a timely process at the trial and appellate levels.

B.

Movants identify N.J.S.A. 2A:162-21(b) as an alternative statutory basis

for relief. Section 21(b) “permit[s] the temporary release of [a] defendant

subject to appropriate restrictive conditions, . . . to the extent that the court

determines the release to be necessary for preparation of the . . . defendant’s

defense or for another compelling reason.” (emphases added).

Like section 19(f), this provision provides for fact-specific hearings in

individual cases. See, e.g., United States v. Clark, 448 F. Supp. 3d 1152,

1159-61 (D. Kan. 2020) (interpreting parallel provision in the federal Bail

26
Reform Act, 18 U.S.C. § 3142(i)); United States v. Stephens, 447 F. Supp. 3d

63, 66-68 (S.D.N.Y. 2020) (same).

Movants contend that the pandemic and the conditions it has fostered --

in particular, the suspension of criminal jury trials -- amount to a “compelling

reason” under the CJRA. To the extent that might be the case, the same

considerations identified above would arguably apply.

We have instead focused on section 19(f) because its emphasis on new

information and materiality offers a more precise standard and familiar

structure. In addition, it does not appear at this time that section 21(b) would

address situations section 19(f) does not encompass in the context of the

pandemic.

V.

We add the following. Although we recognize the evolving nature of the

pandemic, we hope to continue to see improvements in the ongoing health

crisis. Vaccinations are underway throughout the State, and prison inmates

and staff have been designated a priority and are included in Phase 1A of the

State’s vaccination plan. N.J. Dep’t of Health, N.J. Interim COVID-19

Vaccination Plan, at 36, 39 (Dec. 15, 2020), https://nj.gov/health/legal/

covid19/NJ%20Interim%20COVID-19%20Vaccination%20Plan%20-

%20Revised%2012-15-20.pdf. According to the Attorney General, pretrial

27
detainees in Hudson and Passaic County jails were to start getting vaccinated

the week of January 18, 2021; inmates in Burlington County were scheduled to

be vaccinated later in January; and other locations were to follow. The CPA

also relies on submissions from various county jails in late December 2020

that it contends point to a reduced infection rate in county jails of less than two

percent.

The Judiciary, as noted earlier, will again resume criminal jury trials in

person when conditions sufficiently improve. Although there will be a

considerable backlog of cases to address, we hope that recent positive

developments will enable the criminal justice system to resolve many

outstanding criminal charges in a timely manner.

VI.

For the reasons set forth above, we grant in part and deny in part the

relief requested.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER’s
opinion.

28