1

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.
2

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 inperson 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 
3

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.
1

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

January 20, 2021

Decided

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).
2

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. 
3

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 
4

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 
5

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: 
6

(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 nonappearance, 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 
7

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 fourthdegree 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. 
8

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 
9

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. 
10

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).
11

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 highrisk 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.”).
12

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. 
13

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 
14

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 
15

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 
16

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, 
17

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.
18

[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.
19

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.
20

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 nonappearance, 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 
21

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 of nonappearance 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.
22

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 
23

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 nonappearance, 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 
24

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. 
25

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. 
26

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 
27

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 
28

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.