An Act concerning violent offense risk factors in public safety assessments, and amending P.L.2014, c.31.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 11 of P.L.2014, c.31 (C.2A:162-25) is amended to read as follows:

11. a. The Administrative Director of the Courts shall establish and maintain a Statewide Pretrial Services Program which shall provide pretrial services to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.).

b. The Pretrial Services Program shall, after an eligible defendant is temporarily detained pursuant to subsection a. of section 2 of P.L.2014, c.31 (C.2A:162-16) following the issuance of a complaint-warrant, conduct a risk assessment on that eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision, including whether the eligible defendant shall be: released on the eligible defendant's own personal recognizance or on execution of an unsecured appearance bond; released on a non-monetary condition or conditions as set forth under subsection b. of section 3 of P.L.2014, c.31 (C.2A:162-17); released on monetary bail, other than an unsecured appearance bond; released on a combination of monetary bail and non-monetary conditions set forth under section 3 of P.L.2014, c.31 (C.2A:162-17); or any other conditions necessary to effectuate the purposes of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). The risk assessment shall be completed and presented to the court so that the court can, without unnecessary delay, but in no case later than 48 hours after the eligible defendant's commitment to jail, make a pretrial release decision on the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).

c. The pretrial risk assessment shall be conducted using a risk assessment instrument approved by the Administrative Director of the Courts that meets the requirements of this subsection.

(1) (a) The approved risk assessment instrument shall 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. The risk assessment instrument shall not be required to include factors specifically pertaining to the risk for obstructing or attempting to obstruct the criminal justice process.

(b) The approved risk assessment instrument shall not consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on a violation of any of the following, as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5, or a lesser amount of marijuana or hashish in violation of paragraph (12) of subsection b. of that section; or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1) for distributing, dispensing, or possessing with intent to distribute or dispense, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish.

(c) The approved risk assessment instrument shall consider as a violent offense any charge, conviction, adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on any of the following, as a risk factor relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: any crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation committed or attempted while in possession of an unlawful firearm or unlawfully in possession of a firearm; any crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation committed or attempted through the threatened use of a firearm whether or not in possession of an actual firearm; any crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation committed or attempted where a firearm was discharged; and any crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation committed or attempted involving the unlawful manufacture, sale, transfer, transport, possession, or use of a firearm or firearm parts. For purposes of this section, "firearm" shall have the meaning set forth in subsection f. of N.J.S.2C:39-1.

(2) The approved risk assessment instrument shall gather demographic information about the eligible defendant including, but not limited to, race, ethnicity, gender, financial resources, and socio-economic status. Recommendations for pretrial release shall not be discriminatory based on race, ethnicity, gender, or socio-economic status.

d. In addition to the pretrial risk assessments made pursuant to this section, the Pretrial Services Program shall monitor appropriate eligible defendants released on conditions as ordered by the court.

(cf: P.L.2021, c.19, s.10)

2. This act shall take effect on the first day of the third month following enactment. The Attorney General and the Administrative Director of the Courts may take such anticipatory action as may be necessary for the timely implementation of this act.

STATEMENT

This bill requires the public safety assessment (PSA) risk factors to consider certain firearms offenses as violent offenses.

Under current law, as part of the Criminal Justice Reform Law, P.L.2014, c.31, a person arrested for a crime must undergo a PSA conducted by the Judiciary's Pretrial Services Program to determine whether the person is eligible for pretrial release. The current PSA instrument was developed by the non-profit Laura and John Arnold Foundation, in cooperation with and approved by the Judiciary. The PSA is based in part on an analysis of the person's criminal history and court appearance history. In keeping with the goals of criminal justice reform and the elimination of cash bail, the PSA is designed to assess the risk of failure to appear in court when required, and the danger to the community while on pretrial release. Greater weight in deciding against pretrial release is assigned to prior convictions for violent crimes.

However, according to a September 2024 report by the State Bureau of Investigation (SBI), entitled "Illegal Firearms: Use and Trends in New Jersey," the current PSA instrument is deficient in accurately reflecting the dangerousness of firearms. Notably, the PSA's list of crimes deemed to be violent offenses does not include a number of firearms-related crimes. Under the PSA, an offense is not categorized as violent when the crime involves recklessness or negligence, even when it involves a firearm, unless it is charged at the level of manslaughter or homicide. In addition, under the PSA, an offense involving threats, intimidation, harassment, and similar behavior is not categorized as violent, with the exception of stalking, even when those offenses involve a firearm. Finally, the PSA categorically excludes all municipal ordinance violations from its criminal history calculation, even though dozens of municipalities prohibit the public discharging of a firearm.

Under the bill, the PSA would be required to deem the following as a violent offense: any crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation committed or attempted while in possession of an unlawful firearm or unlawfully in possession of a firearm; or committed or attempted through the threatened use of a firearm whether or not in possession of an actual firearm; or committed or attempted where a firearm was discharged; or committed or attempted involving the unlawful manufacture, sale, transfer, transport, possession, or use of a firearm or firearm parts.

This bill implements Recommendation 5 from the SBI's September 2024 report.