P.O. Box 32159
Newark, NJ 07102

ALEXANDER SHALOM
Senior Staff Attorney

Tel: 973-642-2086
Fax: 973-642-6523

973-854-1714
ashalom@aclu-nj.org

info@aclu-nj.org
www.aclu-nj.org

April 17, 2017
Hon. Glenn A. Grant, J.A.D.
Acting Administrative Director
Richard J. Hughes Complex
25 West Market Street
P.O. Box 037
Via email at: Glenn.Grant@judiciary.state.nj.us
Re:

Proposed Changes to the PSA and DMF

Dear Judge Grant:
I write in response to Director Honig’s letter dated April 7, 2017, addressed to you. At the outset,
I join the Office of the Attorney General in thanking you and Chief Justice Rabner for your
partnership – and your leadership – in this vital reform effort. I would be remiss if I did not also
thank Director Honig and Public Defender Krakora whose agencies have both demonstrated
remarkable commitment to bring about this transformational change.
With that said, I write to express disappointment in Director Honig’s letter and to urge the
Judiciary to refrain from making critical policy decisions on the basis of selected and limited
anecdotes.
Relying on three cases in which defendants were charged with firearms offenses, received
relatively low PSA scores, and were not detained, the State contends that the Public Safety
Assessment (PSA) and Decision Making Framework (DMF) “underestimate the danger posed by
defendants charged with firearms offenses.” 1 On that basis the State urges the Judiciary to
modify the PSA, the DMF, or both. There are several problems with that suggestion.
First, a modification to the PSA based on these anecdotes or prosecutors’ belief that these cases
are more dangerous than suggested by the risk assessment tool would violate the pretrial justice
statutes. The Legislature made clear that “[t]he 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.” 2 Modifications made at this stage, or on those bases, would not be
based on empirical data and would therefore not fulfill the statutory obligation.

1
2

Letter from Elie Honig to Hon. Glenn Grant dated April 7, 2017. (Hereinafter “Letter”).
N.J.S.A. 2A:162-25c(1).

1

 Second, even if such a change based on limited anecdotes were permissible, it would be unwise.
As you know, the PSA was created after a validation process, examining cases in New Jersey
and elsewhere to determine which factors actually correlated to risk (of non-appearance, of new
criminal activity and of new violent criminal activity). It makes little sense to abandon years of
effort in validating results, to create a system based on a few selected cases.
Courts can, of course, already detain defendants, regardless of PSA score. 3 The request from the
Attorney General is particularly peculiar in light of its concession that “in each of [the matters it
described], the State – despite the obvious severity of the conduct – did not file motions for
pretrial detention. 4 The contention that the low PSA scores and recommendations of release
posed “significant practical obstacles to detention” 5 ignores the cases in which the State has
sought – and obtained – detention in cases with low risk scores and recommendations of release.
For example, in State v. Jamantay Gaines, 6 a defendant in a firearms case was detained despite a
PSA score of 4, 4, with no violence flag. Indeed, in State v. Anthony Fanniel, 7 a defendant in a
terroristic threats case was detained despite a PSA score of 2, 3. The appeal in that case was
dismissed prior to oral argument when the State offered the defendant probation and he pleaded
guilty and was released from jail. It makes little sense to criticize the system’s failure to detain
defendants where the State did not even ask courts to do so.
The scope of the Attorney General’s request is also noteworthy: it seeks a recommendation
against release in all firearms cases. During our collective efforts on the Joint Committee on
Criminal Justice we were fortunate enough to speak with people involved in pretrial services for
the District of New Jersey. Those representatives made clear that people charged with violations
of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) were sometimes detained and
sometimes safely monitored in the community on pretrial release. Thus, in the federal system,
even people with criminal records charged with firearms offenses are not uniformly detained.
The Attorney General’s request to modify the PSA and/or DMF with respect to second-degree
eluding cases is equally problematic. There, relying on a single case – where there is no
indication that the State sought detention – the Attorney General asks the Judiciary to jettison its
validated risk assessment in favor of one that is not “disconcerting” to law enforcement. 8
Finally, the Attorney General’s Office asks the Judiciary to consider whether a defendant is on
pretrial release, probation or parole in determining whether to release a defendant pretrial on a
new charge. 9 Indeed, the Letter suggests that anyone who is charged – presumably with any
crime – while on any type of supervision be not recommended for release. 10 Such a suggestion
3

See, N.J.S.A. 2A:162-23a(2) (requiring statement of reasons when release decision deviates
from recommendation).
4
Letter at 3.
5
Id.
6
State v. Gaines, 2017 N.J. Super. Unpub. LEXIS 476, *2 (App. Div. Mar. 1, 2017).
7
Appellate Division Docket No. A-001873-16 (Appeal Dismissed)
8
Letter at 3.
9
Id. at 4-5.
10
Id. at 5.
2

 ignores the many resources available to courts, probation officers and parole officers to detain
defendants who are rearrested. 11 Thus, even if the PSA did not consider pretrial supervision,
parole or probation, a defendant can be detained on the previous case or have his probation or
parole revoked. Also, critically, in a sense pretrial supervision is already considered by the PSA
and DMF. In fact, the existence of a pending charge is the single most important factor in
determining risk. 12
Two final concerns bear mentioning: the decision-making process for pretrial release in New
Jersey is required to not discriminate. 13 The PSA was tested to ensure that it was not
discriminatory based on race, ethnicity, gender, or socio-economic status. Changes to the PSA or
DMF must be evaluated to ensure that they do not add discrimination into our system. As a
result, any changes to the PSA or DMF must first be tested to evaluate whether they have a
discriminatory effect.
Second, when the DMF was created, it was predicted that 20.8% of defendants would receive a
recommendation that they not be released. 14 Any suggestion – such as those made by the Office
of the Attorney General – that would greatly increase the percentage of people detained while
presumed innocent must be carefully and skeptically evaluated. After all, “[i]n our society liberty
is the norm, and detention prior to trial or without trial is the carefully limited exception.” 15
None of this is to suggest that the PSA or DMF are perfect: Both are certain to need
modifications. But we should not be rash. The pretrial justice reform statutes built in a
mechanism for evaluating the tools and suggesting changes. The Legislature called for the
creation of the Pretrial Services Program Review Commission. 16 While that Commission was
slow to be formed, Director Honig recently called for members to convene. Concerns about the
PSA and DMF should be raised before that Commission and they should be supported by
empirical evidence suggesting that changes are appropriate.

11

See, e.g. N.J.S.A. 2C:45-3a(3) (authorizing detention for new arrests for probationers); State v.
Garcia, 193 N.J. Super. 334, 338 (App. Div. 1982) (Same).
12
This is so because the existence of a pending charge impacts each of three risk axes. A
pending charge adds one point in calculating risk of failure to appear, three points in determining
risk of new criminal activity, and one point in determining risk of new violent criminal activity.
Laura and John Arnold Foundation, PUBLIC SAFETY ASSESSMENT: RISK FACTORS AND FORMULA,
available
at:
http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-Factors-andFormula.pdf.
13
N.J.S.A. 162-25c(2).
14
This information is from a presentation titled “Introduction to the Public Safety Assessment
and Decision Making Framework New Jersey” by Marie VanNostrand, PhD. The presentation
was included as an appendix in State v. C.W., 2017 N.J. Super. LEXIS 36 (App. Div. Mar. 21,
2017).
15
United States v. Salerno, 481 U.S. 739, 755 (1987).
16
N.J.S.A. 2A:162-26.
3

 To New Jersey’s great credit, we have moved away from a system of pretrial release that relied
on hunches and assumptions toward a system that relies on data. We should not abandon that
tremendous advance.
Sincerely yours,

Alexander Shalom
Senior Staff Attorney
c:

Director Elie Honig
Public Defender Joseph Krakora

4