Our offices represent many non-citizens in criminal and traffic matters across New Jersey. As such, we keep up to date on any changes in case law and precedent that may positively or negatively affect our clients and their cases. Recently the issue of pretrial detention of non-citizens was argued in the New Jersey Supreme Court in State v. Lopez-Carrera and State v. Molchor and decided last month.
On March 30, 2021, Chief Justice Rabner upheld the Appellate Division’s decision on State v. Molchor. Juan Molchor and Jose Rios had previously been arrested and charged with aggravated assault and criminal mischief. Neither Molchor nor Rios had any pending charges, prior convictions, etc., and Pretrial Services recommended their release, conditional upon regular reporting. Despite their low Public Safety Assessment (PSA) ratings and the recommendation from Pretrial Services, the State argued for pretrial detention on the grounds that the two defendants might fail to appear for court because of their undocumented status. The court ordered both Molchor and Rios detained pretrial, citing “Particular circumstances, specifically, defendant is an illegal alien.” The Appellate Division reversed this decision, and it was later upheld by Rabner.
In State v. Lopez-Carrera, the Defendant, who likewise had a low PSA rating and had no prior convictions or pending charges, was released with conditions from pretrial detention on the Pretrial Services recommendation. Immediately after his release, the Defendant was taken into federal custody by ICE and later indicted. The Defendant was the recipient of a final removal order and was denied a continuance to allow his criminal charges to be resolved. The State moved to revoke the Defendant’s pretrial release, but it was denied based on the Molchor decision. Mr. Lopez-Carrera was removed from the country.
These cases are so monumental in that they consider whether the Criminal Justice Reform Act (CJRA) grants judges the power to detain non-citizen defendants to prevent their removal from the United States before their trial. According to the Molchor decision and as seen in Lopez-Garcia, New Jersey judges cannot order pretrial detention for unauthorized immigrants charged with crimes in order to prevent federal authorities—namely ICE—from deporting them.
The CJRA favors pretrial release over detention. And, according to the Act, detention is to be reserved for defendants who “pose a significant risk of non-appearance, danger, or obstruction.” See N.J.S.A. 2A:162-15. Additionally, the CJRA was designed to address a Defendant’s voluntary decision to appear in court and not independent actions of ICE or a similar third party. For all these reasons, Rabner and four other judges upheld the Appellate decision in Molcher.
Pretrial detentions have always been a contentious issue, and the pandemic has only made this more apparent. Despite this, the Molchor decision will set the precedent for many cases to come in New Jersey, granting non-citizens the same benefit as citizens in consideration for release from pretrial detention. Even post-pandemic, State v. Molchor will continue to have a lasting impact as undocumented immigrants face pretrial detention and the threat of deportation from ICE. Our offices have always fought for our non-citizen clients and kept informed on the latest decisions that may benefit each case, and we will persist in doing so.