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.

State v. Oscar Lopez-Carrera (A-8-20) (084750)

State v. Juan C. Molchor; State v. Jose A. Rios (A-9-20) (084694)

Argued November 30, 2020 -- Decided March 30, 2021

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

In these consolidated appeals, the Court considers whether the Criminal Justice 

Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, empowers judges to detain 

defendants who are non-citizens to prevent immigration officials from removing them 

from the country before trial. 

Defendants Juan Molchor and Jose Rios were arrested and charged with 

aggravated assault and criminal mischief. They allegedly punched and struck an 

acquaintance over the head with beer bottles at a party and damaged two cars as they left 

the party. Pretrial Services prepared Public Safety Assessments (PSAs) for both 

defendants. The PSAs rated both defendants 1 out of 6 for failure to appear, the lowest 

level of risk, and 2 out of 6 for new criminal activity. Neither defendant had any pending 

charges, prior convictions, prior failures to appear, or prior juvenile adjudications. 

Pretrial Services recommended that both be released with monthly reporting.

The State moved for pretrial detention, claiming defendants posed a flight risk 

because they were undocumented immigrants. The State presented no evidence that U.S. 

Immigration and Customs Enforcement (ICE) was interested in either defendant. The 

court ordered both defendants detained pretrial, noting that, but for their immigration 

status, both would likely have been released. In both detention orders, the court included 

a single finding to justify detention: “Particular circumstances, specifically, defendant is 

an illegal alien.” The Appellate Division consolidated the cases and reversed. See 464 

N.J. Super. 274 (App. Div. 2020). The Court granted leave to appeal. 244 N.J. 187 (2020).

Defendant Oscar Lopez-Carrera was charged with attempted sexual assault and 

criminal sexual contact in relation to an alleged attempted sexual assault of a minor. Like 

Molchor and Rios, Lopez-Carrera had no prior convictions or other pending charges, and 

no prior failures to appear. The PSA rated him at the lowest level of risk, 1 out of 6, for 

both failure to appear and new criminal activity. Pretrial Services recommended that 

Lopez-Carrera be released on his own recognizance. The State did not initially move for 

pretrial detention, and Lopez-Carrera was released on conditions. Immediately upon his
2

release, ICE officials took him into federal custody. He was indicted months later. Eight 

months after that, ICE informed prosecutors of the following: Lopez-Carrera was the 

subject of a final removal order; his immigration appeals had been denied; and he would 

be removed from the country to Guatemala. In his immigration appeal, Lopez-Carrera 

unsuccessfully sought a continuance to allow his criminal charges to be resolved.

The State promptly moved to revoke Lopez-Carrera’s pretrial release based on the 

change in circumstances. The trial court denied the motion, relying on the Appellate 

Division’s recently published decision in Molchor. The Appellate Division affirmed. 

The State contacted ICE and asked for permission to apply for deferred action or an 

administrative stay of removal to delay Lopez-Carrera’s removal from the country. 

Counsel for ICE responded that the removal could not be delayed. The Court granted 

leave to appeal. 244 N.J. 189 (2020). One month later, Lopez-Carrera was removed 

from the United States to Guatemala. The Court considers his appeal nonetheless 

because it raises an issue of significant public importance that is likely to recur.

HELD: The CJRA favors pretrial release over detention; it authorizes judges to detain 

defendants when the State has shown, by clear and convincing evidence, that no 

conditions of release would reasonably assure the eligible defendant’s appearance in 

court when required, would protect the public, or would prevent the defendant from 

obstructing the criminal justice process. To make that determination, the Act directs 

judges to conduct an individualized assessment of the level of risk each defendant 

presents in light of their own conduct, history, and characteristics. The Act does not seek 

to detain defendants whose behavior poses a minimal level of risk, which describes all 

three defendants here. Nor does the CJRA cede control over pretrial release decisions to 

outside agencies. The statute’s primary focus is on a defendant’s behavior and choices, 

and the risk they present. The language, structure, purpose, and history of the CJRA 

reveal the Act was designed to address a defendant’s own choice not to appear in court, 

not independent actions by third parties like ICE. The Court agrees with the Appellate 

Division that the CJRA does not authorize judges to detain defendants to thwart their 

possible removal by ICE.

1. The CJRA favors release with conditions, with detention reserved for defendants who 

pose a significant risk of non-appearance, danger, or obstruction. N.J.S.A. 2A:162-15, 

-17, -18. To enable judges to decide whether to release an individual, the CJRA provides 

for a careful, objective evaluation of the level of risk each defendant presents, taking into 

account information that relates largely to a defendant’s conduct, history, and 

characteristics. See id. at -20. Pretrial Services officers are required to conduct an 

individualized risk assessment for each eligible defendant to make a recommendation to 

the court. State v. Robinson, 229 N.J. 44, 56 (2017) (citing N.J.S.A. 2A:162-25(b)). To 

that end, the Act directed that an objective risk assessment instrument be 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 
3

release.” N.J.S.A. 2A:162-26(c)(1). The risk assessment instrument considers nine 

factors that also relate to a defendant’s behavior, history, and characteristics. See

Robinson, 229 N.J. at 62. With those objective details and other relevant information, 

Pretrial Services prepares a PSA that assesses a defendant’s level of risk for failure to 

appear and for new criminal activity. The PSA also recommends whether to release a 

defendant, and if so, what conditions of release to impose. Ibid. (pp. 18-22)

2. To determine whether the CJRA authorizes judges to detain defendants who face 

possible removal, the Court begins with the Act’s plain language, which provides for 

detention when no combination of conditions “would reasonably assure the eligible 

defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1) (emphasis 

added). The CJRA does not specifically address whether or how judges may consider the 

intervention of immigration officials, but its text is revealing in other ways. (pp. 23-24)

3. “Appearance” commonly involves action. A defendant’s “appearance in court” thus 

commonly refers to the voluntary act of showing up. Reading the term in the context of 

the Act reinforces that “appearance” implies a voluntary act by the defendant. First, the 

other two grounds for detention set forth in N.J.S.A. 2A:162-18(a)(1) -- the risk the 

defendant might harm someone or obstruct justice -- plainly refer to a defendant’s 

voluntary behavior, permitting the inference that “appearance” likewise refers to a 

defendant’s voluntary act. Second, the risk assessment tool and the statutory factors in 

N.J.S.A. 2A:162-20 focus on the behavior, characteristics, and history of each defendant. 

Third, N.J.S.A. 2A:162-20(c)(1) invites judges deciding whether to detain a defendant 

pretrial to consider a defendant’s “record concerning appearance at court proceedings.” 

That relates directly to a defendant’s prior voluntary conduct and sheds light on the 

meaning of the words in section 18, as well as the Legislature’s intent. (pp. 24-26)

4. To discern the intent of the Legislature, the Court also considers the meaning of the 

phrase “appearance in court when required,” N.J.S.A. 2A:162-18(a)(1), in light of the 

statute’s overall scheme and purpose. At the outset of the CJRA, the Legislature declared 

the law “shall be liberally construed to effectuate the purpose of primarily relying upon 

pretrial release by non-monetary means.” N.J.S.A. 2A:162-15. The Act reserves

detention for defendants who pose a serious risk of non-appearance, danger, or 

obstruction. See ibid. Moreover, the Act empowers judges to implement its framework 

and decide the question of pretrial release. (pp. 26-27)

5. The State argues that pretrial detention is justified when a defendant’s risk of removal 

is certain and imminent. If that were the case, defendants could be detained no matter the 

nature and circumstances of their eligible offense, the strength of the evidence against 

them, their record of appearing in court in the past, their ties to and length of residence in 

the community, their past conduct, or other considerations the Legislature outlined. See

N.J.S.A. 2A:162-20. To be clear, here the Court considers individuals who would not 

otherwise be subject to pretrial detention. Under the State’s argument, which assumes 
4

that one can be certain when removal is imminent, the single determining factor would be 

whether immigration officials appeared likely to succeed in their efforts to remove an 

individual. Such an approach would effectively cede decisions on pretrial release to an 

outside agency and remove that authority from judges. Trial judges in those cases would 

in essence be compelled to enter an order of detention. The CJRA, as written, does not 

provide for that. In the language, structure, and purpose of the CJRA, the Court finds 

evidence that the Legislature intended to authorize pretrial detention when there is clear 

and convincing evidence that individual defendants pose a serious risk of non-appearance 

based on their own conduct, not the acts of third parties like ICE. (pp. 27-29)

6. The Legislature did not debate whether decisions by immigration officials could form 

the basis for pretrial detention. Three strands in the historical record, however, do shed 

light on the issue, and two of them imply that an order of detention should be based on a 

defendant’s own behavior. The Court reviews all three strands in detail. (pp. 29-36)

7. The Court does not rely on case law that interprets the federal Bail Reform Act. The 

federal act differs from the CJRA in this area in two ways, including by expressly 

providing for consideration of immigration status. See 18 U.S.C. § 3142(d). The New 

Jersey Legislature declined to address immigration status in the CJRA despite looking to 

the federal act as a model. In the end, the issue here is about the interpretation of a state 

statute. The question is not whether the sovereign had the power to act; it is what the law 

-- as written -- actually authorizes. (pp. 36-37)

8. Another important concern influences the Court’s analysis. A bedrock principle of 

our system of justice is that individuals charged with a crime are presumed innocent. For 

like reasons, “[i]n our society liberty is the norm, and detention prior to trial or without 

trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 

(1987). Detention statutes must be narrowly drawn to live up to those basic principles. 

Id. at 749-50. The Court reviews arguments about the complexities of the removal 

process and difficulties in predicting the likelihood of deportation, concluding that one 

thing seems apparent: If the Legislature were to ask judges to consider the likelihood of 

removal when they decide detention motions, it would be quite challenging to make 

accurate predictions. Yet judges can order detention only if they find that “clear and 

convincing evidence” requires that outcome. N.J.S.A. 2A:162-18(a). The legal standard 

and the realities of immigration proceedings are not easily reconciled. (pp. 37-40)

9. The Appellate Division correctly remanded the cases involving defendants Molchor 

and Rios to the trial court. At a hearing on remand, just as at an initial detention hearing, 

trial courts consider a host of factors to assess whether a defendant presents a risk of nonappearance. N.J.S.A. 2A:162-20. A defendant’s family ties, length of residence in the 

community, and community ties all bear on the risk that an individual might choose not 

to appear in court. Ibid. Ties to another country can likewise inform a court’s decision. 

But a person’s immigration status alone cannot be dispositive. Courts must engage in a 
5

fact-specific inquiry that looks beyond status because each person’s circumstances --

citizens and non-citizens alike -- are different. Non-citizens who have lived here for 

years, gone to school here, raised families here, and established roots in their

communities may pose only a minimal risk of non-appearance. Other non-citizens who 

arrived recently and have no such connections may pose a much greater risk of 

non-appearance. In State v. Fajardo-Santos, 199 N.J. 520, 531-32 (2009), the Court 

invited an inquiry into how non-citizen defendants facing immigration action will decide 

to respond to their obligation to appear in court, a question that status alone does not 

answer. But Fajardo-Santos pre-dates the CJRA and is not an interpretive aid for either 

the Act or the issue now on appeal. (pp. 40-43)

10. The Attorney General could not estimate how many non-citizen defendants who are 

not detained are deported each year. The State conceded the concern involves “a 

relatively small total number of cases” in the overall context of pretrial release. 

Prosecutors can and do seek to defer action and stay removal in appropriate cases so that 

the criminal process can be completed. It would be preferable for ICE to refrain from 

deporting defendants while they await trial for many reasons. If removal proceedings 

occur while a case is pending, the Court urges ICE officials to work with prosecutors to 

allow pending criminal charges to be resolved. (pp. 43-44)

The judgment of the Appellate Division is AFFIRMED in both matters.

JUSTICE ALBIN disagrees with the Court’s holding on the grounds that it 

preempts the State’s sovereign authority to prosecute certain defendant aliens for offenses 

committed in New Jersey and denies crime victims their rights. Justice Albin does not 

suggest that a detention order can be entered solely because of an alien’s status but finds 

it a different matter when a final order of removal has been entered, no appeals are 

pending, and ICE has reported that a defendant’s removal from the country is certain and 

imminent. In those circumstances, Justice Albin writes, the State has met its burden that 

no condition of release “would reasonably assure the eligible defendant’s appearance in 

court when required.” N.J.S.A. 2A:162-18(a)(1). In Justice Albin’s view, that commonsense interpretation is consistent with the objectives of the CJRA, the State’s exercise of 

its sovereign power, and New Jersey’s Victim’s Rights Amendment and Crime Victim’s 

Bill of Rights. Justice Albin concludes that it is now for the Legislature to determine 

whether, in passing the CJRA, it intended to strip state courts of the power to enter 

detention orders that would prevent the removal of defendant aliens charged with 

committing crimes in New Jersey.

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON

join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN, joined by 

JUSTICE PIERRE-LOUIS, filed a dissent in Lopez-Carrera and concurred in the 

judgment in Molchor and Rios.
1

SUPREME COURT OF NEW JERSEY 

A-8 September Term 2020

A-9 September Term 2020

084750 and 084694

State of New Jersey,

Plaintiff-Appellant,

v.

Oscar Lopez-Carrera,

Defendant-Respondent.

State of New Jersey,

Plaintiff-Appellant,

v.

Juan C. Molchor,

Defendant-Respondent.

_______________________________________________________________

State of New Jersey,

Plaintiff-Appellant,

v.

Jose A. Rios,

Defendant-Respondent.
2

State v. Oscar Lopez-Carrera (A-8-20):

On appeal from the Superior Court, 

Appellate Division.

State v. Juan C. Molchor; State v. Jose A. Rios

(A-9-20): On appeal from the Superior Court, 

Appellate Division, whose opinion is reported at

464 N.J. Super. 274 (App. Div. 2020).

Argued

November 30, 2020

Decided

March 30, 2021

Paul Heinzel, Assistant Prosecutor, argued the cause for 

appellant in State v. Lopez-Carrera (A-8-20) (Michael H. 

Robertson, Somerset County Prosecutor, attorney; Paul 

Heinzel, of counsel and on the briefs).

Andrew R. Burroughs argued the cause for respondent in 

State v. Lopez-Carrera (A-8-20) (Bastarrika, Soto,

Gonzalez & Somohano, attorneys; Andrew R. Burroughs, 

John T. Somohano, and Jerard A. Gonzalez, on the 

briefs).

Dana R. Anton, Special Deputy Attorney General/Acting 

Assistant Prosecutor, argued the cause for appellant in 

State v. Molchor; State v. Rios (A-9-20) (Christine A. 

Hoffman, Acting Gloucester County Prosecutor, attorney; 

Dana R. Anton, of counsel and on the briefs).

Tamar Y. Lerer, Assistant Deputy Public Defender 

argued the cause for respondent Jose A. Rios in State v. 

Molchor; State v. Rios (A-9-20) (Joseph E. Krakora, 

Public Defender, attorney; Tamar Y. Lerer, of counsel 

and on the briefs).

Cristina L. Vazquez argued the cause for respondent Juan 

C. Molchor in State v. Molchor; State v. Rios (A-9-20) 

(Cristina L. Vazquez, on the brief).
3

Sarah C. Hunt, Deputy Attorney General, argued the 

cause for amicus curiae Attorney General of New Jersey 

in State v. Lopez-Carrera (A-8-20) and State v. Molchor;

State v. Rios (A-9-20) (Gurbir S. Grewal, Attorney 

General, attorney; Sarah C. Hunt, of counsel and on the 

briefs).

Alexander Shalom argued the cause for amicus curiae 

American Civil Liberties Union of New Jersey in State v. 

Molchor; State v. Rios (A-9-20) (American Civil 

Liberties Union of New Jersey Foundation, attorneys; 

Alexander Shalom, on the brief).

Joanne Gottesman argued the cause for amici curiae 

Immigration Law Scholars and Clinical Professors in 

State v. Molchor; State v. Rios (A-9-20) (Rutgers Law 

School Immigrant Justice Clinic, Boston College Legal 

Services Civil Rights Clinic, and the Cardozo School of 

Law Kathryn O. Greenberg Immigration Justice Clinic, 

attorneys; Joanne Gottesman, Reena Parikh, Haiyun 

Damon-Feng, of the Washington bar, practicing pursuant 

to R. 1:21-3(c), and Mauricio E. Norõna, of the New 

York bar, admitted pro hac vice, on the brief).

Michael Noriega submitted a brief on behalf of amicus 

curiae Association of Criminal Defense Lawyers of New 

Jersey in State v. Lopez-Carrera (A-8-20) and State v. 

Molchor; State v. Rios (A-9-20) (Bramnick Rodriguez 

Grabas Arnold & Mangan, attorneys; Michael Noriega, 

on the brief, and Cristina Carreno, of counsel and on the 

brief).

Richard D. Pompelio submitted a brief on behalf of 

amicus curiae New Jersey Crime Victims’ Law Center in 

State v. Lopez-Carrera (A-8-20) (New Jersey Crime 

Victims’ Law Center, attorneys; Richard D. Pompelio, of 

counsel and on the brief).

Eric M. Mark submitted a brief on behalf of amicus 

curiae American Immigration Lawyers Association –
4

New Jersey Chapter in State v. Molchor; State v. Rios

(A-9-20) (Eric M. Mark, on the brief).

CJ Griffin submitted a brief on behalf of amici curiae

Make the Road New Jersey, Bangladeshi American 

Women’s Development Initiative, Fair and Welcoming 

Communities Coalition of Somerset County, Faith in 

New Jersey, First Friends of New Jersey and New York, 

International Justice Project, MomsRising, National 

Coalition of Latino Officers, LatinoJustice PRLDEF, 

Latino American Legal Defense and Education Fund, 

Law Enforcement Action Partnership, Volunteer Lawyers 

for Justice, and Wind of the Spirit in State v. Molchor; 

State v. Rios (A-9-20) (Pashman Stein Walder Hayden, 

attorneys; CJ Griffin and Rachel E. Simon, on the brief).

Raquiba Huq submitted a brief on behalf of amicus curiae 

Legal Services of New Jersey in State v. Molchor; State 

v. Rios (A-9-20) (Legal Services of New Jersey, 

attorneys; Raquiba Huq, Rachel Salazar, and Melville D. 

Miller, Jr., on the brief).

Jennifer B. Condon submitted a brief amici curiae on 

behalf of National Immigration Project of the National 

Lawyers Guild, Immigrant Defense Project, and Harvard 

Law School Crimmigration Clinic in State v. Molchor; 

State v. Rios (A-9-20) (Seton Hall Law School Center for 

Social Justice, attorneys; Jennifer B. Condon, on the 

brief). 

Susan G. Roy submitted a brief on behalf of amici curiae 

Round Table of Former Immigration Judges and Former 

Board of Immigration Appeals Members in State v. 

Molchor; State v. Rios (A-9-20) (Law Office of Susan G. 

Roy, attorneys; Susan G. Roy, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.
5

These consolidated appeals present a straightforward question: whether 

the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, 

empowers judges to detain defendants who are non-citizens to prevent 

immigration officials from removing them from the country before trial. 1 The 

statute does not directly answer the question, and the Legislature did not 

debate the issue. But the language, structure, purpose, and history of the 

CJRA reveal the Act was designed to address a defendant’s own choice not to 

appear in court, not independent actions by third parties like the U.S. 

Immigration and Customs Enforcement (ICE). 

The CJRA favors pretrial release of defendants over detention. Id.

at -15, -17. The law authorizes judges to detain defendants when the State has 

shown, by clear and convincing evidence, that no conditions of release “would 

reasonably assure the eligible defendant’s appearance in court when required,” 

would protect the public, or would prevent the defendant from obstructing the 

criminal justice process. Id. at -18(a) (emphasis added). In other words, 

judges may detain defendants who present a substantial risk in any of those 

areas.

1

 We use the term “non-citizens” in this opinion to refer to individuals who 

are subject to removal under federal law. The word includes undocumented 

individuals as well as people who entered the country lawfully but are now in 

the United States in violation of federal law. 
6

To make that determination, the Act directs judges to conduct an 

individualized assessment of the level of risk each defendant presents in light 

of their own conduct, history, and characteristics. See State v. Robinson, 229 

N.J. 44, 54 (2017); N.J.S.A. 2A:162-20. The Act does not seek to detain 

defendants whose behavior poses a minimal level of risk, which describes all 

three defendants involved in these appeals. Nor does the CJRA cede control 

over pretrial release decisions to outside agencies. The statute’s primary focus 

is on a defendant’s behavior and choices, and the risk they present. 

The language the Legislature placed in the CJRA supports that 

conclusion. The key word, “appearance,” commonly points to acts or actions 

people choose to take, not decisions by others that may prevent someone from 

acting. Related provisions elsewhere in the Act, which offer context, reinforce 

the law’s focus on a defendant’s own conduct.

Parts of the legislative history likewise emphasize a defendant’s 

voluntary behavior as the basis for pretrial detention. For example, a report on 

criminal justice reform that the Legislature relied on, as well as an interpretive 

statement for the voters that accompanied the proposed constitutional 

amendment to allow for pretrial detention, both focus on a defendant’s 

choices, not conduct by others, as grounds for detention. The State and the 

Attorney General contend that an amendment to an earlier draft of the bill 
7

conclusively demonstrates the Legislature authorized detention of defendants 

who might fail to appear in court through no act of their own. It does not. 

Other reasons more persuasively account for the amendment, which the 

Legislature itself did not explain. 

Here, the question before the Court affects a relatively small number of 

cases. All of them involve individuals who would not otherwise be detained as 

high-risk defendants. In other words, the cases involve people whose own 

behavior and history do not present a serious risk of non-appearance, danger, 

or obstruction. Individuals would be detained solely because of their 

immigration status and the risk ICE might remove them -- a risk that is 

difficult to measure because removal decisions are highly discretionary and 

involve complex legal issues. 

The record reveals the Legislature did not discuss or set a policy for 

those individuals. Although the Legislature looked to the federal Bail Reform 

Act when it drafted the CJRA, it chose not to include language about 

immigration status that appears in the federal statute. 

Courts are obligated to give effect to the Legislature’s intent, not to craft 

a policy on an issue the Legislature has not addressed. See State v. S.B., 230 

N.J. 62, 67-68 (2017). We agree with the Appellate Division that the language 

of the Act, coupled with its history, does not authorize judges to detain 
8

defendants to thwart their possible removal by ICE. We therefore affirm the 

judgment of the Appellate Division. 

Federal law provides for coordination between federal prosecutors and 

immigration officials after a non-citizen is arrested. 18 U.S.C. § 3142(d). Our 

criminal justice system functions best when the State has an opportunity to 

present its proofs to try to enforce the law, when defendants who stand accused 

can defend themselves in court, and when victims and witnesses can be heard 

and treated with dignity and respect. We therefore encourage ICE to 

coordinate with State prosecutors and allow the criminal justice system to 

complete its work while charges are pending against non-citizens in state 

court. 

I.

A.

On January 8, 2020, defendants Juan Molchor and Jose Rios were 

arrested and charged with second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1), and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). They 

allegedly punched and struck an acquaintance over the head with beer bottles

at a party. The victim reportedly suffered a severe laceration and lost 

consciousness. As defendants left the party, they allegedly damaged two cars. 
9

Pretrial Services prepared Public Safety Assessments (PSAs) for both 

defendants. The PSAs rated both defendants 1 out of 6 for failure to appear, 

the lowest level of risk, and 2 out of 6 for new criminal activity. Neither 

defendant had any pending charges, prior convictions, prior failures to appear, 

or prior juvenile adjudications. Pretrial Services recommended that both 

defendants be released with monthly reporting as a condition. 

The State moved for pretrial detention in each case. The State claimed 

defendants posed a flight risk because they were undocumented immigrants. 

Although the State presented no evidence that ICE was interested in either 

defendant, the prosecutor argued that if they were detained by ICE, the victim 

would be deprived of any relief. The State also claimed defendants might 

retaliate against the victim because they lived within five minutes of him. 

Defense counsel stressed defendants’ clean history and low risk scores 

and asked the court to release both individuals. Counsel added that release 

conditions could include a no-contact order to protect the victim. In the case 

of defendant Molchor, counsel emphasized it was “extremely unfair” for the 

State to “dangl[e]” the possibility of an ICE detainer without having contacted 

ICE. 

The trial court ordered Molchor and Rios detained pretrial. The court 

observed that Rios was “an admitted, undocumented illegal alien which raises 
10

major concerns for whether he’s going to be here to answer to these charges.” 

The court made similar comments about Molchor. But for their immigration 

status, the court noted, both defendants would likely have been released. The 

judge also referred to the seriousness of the charges and expressed concerns 

about contact with the victim. In both written detention orders, the court 

included a single finding of fact to justify detention: “Particular 

circumstances, specifically, defendant is an illegal alien.” 

Defendants appealed, and the Appellate Division consolidated the two 

cases. In a thoughtful opinion by Judge Ostrer, the Appellate Division 

reversed and remanded both cases. State v. Molchor, 464 N.J. Super. 274, 280 

(App. Div. 2020). In short, the Appellate Division concluded that “the risk of 

a defendant’s failure to appear justifying detention [under the CJRA] must 

arise from the defendant’s own misconduct, not the independent acts of a 

separate arm of government.” Ibid.

The court found that the Act’s plain language did not resolve the issue

but, when read in context, could be “plausibly construe[d] . . . to require a 

defendant’s volitional act” to justify detention. Id. at 289 (noting that other 

grounds for detention set forth in N.J.S.A. 2A:162-18 -- threatening safety or 

obstructing the criminal justice process -- require volitional acts).
11

The court also relied on the language of the interpretive statement to the 

constitutional amendment, which referred to a defendant’s “return” to court --

a volitional act. Id. at 290 (citing S. Con. Res. 128, 216th Leg. (2014)). The 

Appellate Division found that a report of the Joint Committee on Criminal 

Justice, which the Legislature cited, lent further support in that the report

focused on a defendant’s pretrial misconduct as a way to measure a person’s 

risk level. Ibid. The report notably equated “nonappearance” and “flight” as a 

single form of misconduct to be considered. Id. at 291. 

The Appellate Division was not persuaded that an amendment to the bill 

-- which replaced a reference that a defendant “will flee” with “will not appear 

in court as required” -- implied that the Legislature intended “to authorize 

detention to manage the risk of a defendant’s non-volitional failure to appear.” 

Id. at 292. The Legislature did not explain the reason for the change, which 

“[c]onceivably” was meant to allow prosecutors to seek detention when 

defendants chose not to appear but did not flee. Ibid. 

In addition, the court found support in federal case law that interpreted 

the federal Bail Reform Act. Id. at 293-95. Among other cases, the court cited 

United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015), for its 

holding that “the risk of nonappearance referenced in 18 U.S.C. § 3142 must 

involve an element of volition.” 
12

In the end, the Appellate Division “conclude[d] that the Legislature . . . 

intended that a defendant may be detained based on the risk of non-appearance 

only if it arises from the defendant’s own misconduct or volitional act” -- and 

not “to thwart federal immigration action.” Molchor, 464 N.J. Super. at 296. 

The court remanded both cases for reconsideration and directed the trial 

judge “to weigh the risk of non-appearance arising only from defendants’ own 

potential misconduct or volitional acts.” Id. at 297. The Appellate Division 

also vacated the trial court’s finding “that defendants posed an unmanageable 

risk” of retaliation to the alleged victim, which the record did not support, or 

that Rios posed a risk of danger. Ibid. 

On July 10, 2020, after new detention hearings, Molchor and Rios were 

both released on conditions. The Appellate Division and this Court denied the 

State’s emergent applications for a stay. The State’s motion for a stay in the 

ordinary course was denied by both courts as well. 

We granted the State’s motion for leave to appeal. 244 N.J. 187 (2020). 

The Attorney General and the American Civil Liberties Union of New Jersey 

(ACLU) appeared as amici curiae before the Appellate Division and continued 

to participate in this appeal. See R. 1:13-9(d). We also granted a number of 

individual and joint applications to appear as amicus curiae. 
13

B.

On June 12, 2019, defendant Oscar Lopez-Carrera was charged in a 

complaint with second-degree attempted sexual assault, N.J.S.A. 2C:5-1(a)(1) 

and 2C:14-2(c)(4), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-

3(b). The charges related to an alleged attempted sexual assault of a minor. 

On or about the same day, ICE lodged a detainer against Lopez-Carrera.

2

 

Like Molchor and Rios, Lopez-Carrera had no prior convictions or other 

pending charges, and no prior failures to appear. The PSA rated him at the 

lowest level of risk, 1 out of 6, for both failure to appear and new criminal 

activity. Pretrial Services recommended that Lopez-Carrera be released on his 

own recognizance. 

The State did not initially move for pretrial detention, and Lopez-Carrera 

was released on conditions on June 13, 2019. Immediately upon his release 

from county jail, ICE officials took him into federal custody, where he 

remained afterward. A grand jury in Somerset County returned an indictment 

against defendant for essentially the same charges on October 2, 2019. 

2

 An ICE detainer “serves to advise another law enforcement agency that 

[ICE] seeks custody of an alien presently in the custody of that agency, for the 

purpose of arresting and removing the alien. The detainer is a request that 

such agency advise [ICE], prior to release of the alien, in order for [ICE] to 

arrange to assume custody . . . .” 8 C.F.R. § 287.7(a). 
14

Eight months later, on June 9, 2020, ICE informed prosecutors of the 

following: Lopez-Carrera was the subject of a final removal order; his 

immigration appeals had been denied; and he would be removed from the 

country to Guatemala. In his immigration appeal, Lopez-Carrera 

unsuccessfully sought a continuance to allow his criminal charges to be 

resolved. 

The State promptly moved to revoke Lopez-Carrera’s pretrial release on 

June 11, 2020 based on the change in circumstances, pursuant to Rule

3:4A(b)(3). On July 16, 2020, the trial court denied the motion. Relying on 

the Appellate Division’s recently published decision in Molchor, the trial court 

explained that Lopez-Carrera’s risk of non-appearance arose from the federal 

government’s intervention, not defendant’s own volitional acts. 

The same day, the State sought leave to file an emergent appeal and

certified that Lopez-Carrera would be deported to Guatemala on the next 

available flight. The Appellate Division granted leave to appeal and 

summarily affirmed the trial court’s order, citing Molchor. We denied the 

State’s emergent application for a stay on July 24, 2020. 

The State then contacted ICE and asked for permission to apply for 

deferred action or an administrative stay of removal to delay Lopez-Carrera’s 
15

removal from the country. Counsel for ICE responded that the removal could 

not be delayed. 

We granted leave to appeal on September 21, 2020. 244 N.J. 189 

(2020). We also granted several applications to appear as amicus curiae. 

On October 21, 2020, Lopez-Carrera was removed from the United 

States to Guatemala. We consider his appeal nonetheless because it raises an 

issue “of significant public importance [that] is likely to recur.” State v. 

Cassidy, 235 N.J. 482, 491 (2018) (quoting State v. Gartland, 149 N.J. 456, 

464 (1997)).

II.

Because the parties’ arguments are substantially similar in all three 

cases, we consider them together. 

The State argues that the Appellate Division improperly imposed a 

volitional act requirement on the CJRA, which neither the plain language nor 

the legislative history of the statute established. Such a requirement, the State 

contends, would allow defendants to be removed before they could be brought 

to justice. The State argues that when a defendant’s deportation becomes

“certain and imminent,” pretrial detention is warranted to “reasonably assure

the eligible defendant’s appearance in court,” consistent with N.J.S.A. 2A:162-

18(a). The State, as well as other advocates, offers a multi-part test to 
16

determine when removal is sufficiently certain and imminent to justify 

detention. 

The Attorney General, as an amicus, largely echoes the State’s position. 

The Attorney General stresses that courts should focus on the likelihood that a 

defendant will appear at trial, not who is to blame for a defendant’s failure to 

appear. 

Defendants counter that the Appellate Division properly interpreted the 

CJRA. They contend that the risk of non-appearance in the statute does not 

encompass the risk of deportation; it extends only to the risk that a defendant 

will voluntarily choose to not appear. Defendants add that state court judges 

are not equipped to evaluate the risk of deportation because of the complexities 

of immigration law and the immense amount of discretion ICE has. 

The ACLU supports defendants’ position. The ACLU emphasizes the 

Act does not permit pretrial detention on the basis that defendants may be 

forced to miss a court date against their will. The ACLU also contends that 

allowing pretrial detention based solely on immigration status raises serious 

constitutional concerns. 

The Association of Criminal Defense Lawyers of New Jersey, as amicus, 

likewise agrees with the Appellate Division’s analysis. In addition, the 
17

Association asks the Court to adopt a rule that would permit defendants subject 

to removal to stipulate to pretrial detention. 

Other amici presented thoughtful submissions as well. The New Jersey 

Crime Victims’ Law Center, like the State, argues that the Appellate 

Division’s ruling will result in manifest injustice to victims and fails to respect 

their rights. 

A group of fifty immigration law scholars and clinical professors 

(Professors), and a second group of twenty-five former immigration judges and 

members of the Board of Immigration Appeals (Former Judges), submitted 

comprehensive overviews of the immigration process. They highlight the 

complex, dynamic, and discretionary nature of the removal process and argue 

that state trial courts are ill-equipped to evaluate a defendant’s likelihood of 

removal, which is too speculative even for experts to predict. They submit that 

a civil immigration detainer, like an individual’s immigration status, is not a 

reliable indicator that a person will be removed from the country. 

The American Immigration Lawyers Association (AILA) and the 

National Immigration Project of the National Lawyers Guild, the Immigrant 

Defense Project, and the Harvard Law School Crimmigration Clinic echo 

concerns about how difficult it is to forecast the risk of removal for a noncitizen. AILA adds that permitting pretrial detention based on a person’s risk 
18

of removal will have the disproportionate effect of incarcerating low-level 

offenders, the vast majority of whom are recommended for release under the 

CJRA. 

Finally, Legal Services of New Jersey (LSNJ) and Make the Road New 

Jersey, joined by twelve other organizations (Make the Road), highlight the 

consequences of pretrial detention for non-citizens, their families, and their 

communities. LSNJ also challenges the need for pretrial detention given the 

avenues non-citizens have to resolve their criminal cases while in ICE custody. 

Make the Road adds that allowing pretrial detention based on immigration 

status undermines trust in law enforcement in immigrant communities and 

makes it harder for law enforcement to investigate and prosecute crimes. 

III.

The CJRA marked a significant change in New Jersey’s approach to 

pretrial release. Previously, the criminal justice system relied heavily on the 

use of monetary bail. The new law favors release with conditions, with 

detention reserved for defendants who pose a significant risk of nonappearance, danger, or obstruction. N.J.S.A. 2A:162-15, -17, -18. 

To enable judges to decide whether to release an individual, the CJRA

provides for a careful, objective evaluation of the level of risk each defendant 

presents. See Robinson, 229 N.J. at 54. We reviewed the Act’s purpose and 
19

provisions in Robinson. See id. at 52-62. In this appeal, we briefly recount

aspects of the CJRA that concern pretrial detention.

As noted earlier, the Act relies primarily on pretrial release, 

accompanied by non-monetary conditions, to “reasonably assure” three aims: 

(1) a defendant’s “appearance in court when required”; (2) that the defendant 

will not endanger “the safety of any other person or the community”; and (3) 

that the defendant “will not obstruct or attempt to obstruct the criminal justice 

process.” N.J.S.A. 2A:162-15. When a prosecutor files a motion, a court may 

order pretrial detention if it finds by “clear and convincing evidence” that no 

combination of conditions would reasonably achieve those aims. N.J.S.A. 

2A:162-15, -18(a). 

A prosecutor may seek pretrial detention when a defendant has been 

charged with one of a number of serious offenses listed in the statute. See

N.J.S.A. 2A:162-19(a)(1) to (a)(6). In addition, prosecutors can move for 

pretrial detention for any other offense if -- tracking the above language -- they 

“believe[] there is a serious risk that” the defendant “will not appear in court 

as required,” “will pose a danger to any other person or the community,” or 

“will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, 

or attempt to threaten, injure or intimidate, a prospective witness or juror.” 

N.J.S.A. 2A:162-19(a)(7).
20

To assess a motion for detention, the trial court “may take into account 

information” that relates largely to a defendant’s conduct, history, and 

characteristics: 

a. The nature and circumstances of the offense charged;

b. The weight of the evidence against the eligible 

defendant, except that the court may consider the 

admissibility of any evidence sought to be excluded;

c. The history and characteristics of the eligible 

defendant, including:

(1) the eligible defendant’s character, physical 

and mental condition, family ties, employment, 

financial resources, length of residence in the 

community, community ties, past conduct, 

history relating to drug or alcohol abuse, criminal 

history, and record concerning appearance at 

court proceedings; and 

(2) whether, at the time of the current offense or 

arrest, the eligible defendant was on probation, 

parole, or on other release pending trial, 

sentencing, appeal, or completion of sentence for 

an offense under federal law, or the law of this or 

any other state;

d. The nature and seriousness of the danger to any other 

person or the community that would be posed by the 

eligible defendant’s release, if applicable;

e. The nature and seriousness of the risk of obstructing 

or attempting to obstruct the criminal justice process 

that would be posed by the eligible defendant’s release, 

if applicable; and
21

f. The release recommendation of the pretrial services 

program obtained using a risk assessment 

instrument . . . .

[N.J.S.A. 2A:162-20.]

Section 25 of the Act establishes a statewide Pretrial Services Program. 

Pretrial Services officers are required to conduct an individualized risk 

assessment for each eligible defendant in order to make a recommendation to 

the court. Robinson, 229 N.J. at 56 (citing N.J.S.A. 2A:162-25(b)). To that

end, the Act directed that an objective risk assessment instrument be 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” -- for Pretrial Services officers to use. N.J.S.A.

2A:162-26(c)(1). 

The risk assessment instrument considers nine factors that also relate to 

a defendant’s behavior, history, and characteristics:

(1) the defendant’s age at the time of the current 

offense; (2) whether the offense is violent and, if so, 

whether the defendant is age 20 or older; (3) any 

additional pending charge(s) at the time of the current 

offense; and whether the defendant has any prior (4) 

disorderly persons convictions, (5) indictable 

convictions, (6) violent convictions, (7) failures to 

appear pretrial in the past two years or (8) more than 

two years ago, or (9) sentences of incarceration of 

fourteen days or more.
22

[Robinson, 229 N.J. at 62.]

With the above objective details and other relevant information, Pretrial 

Services prepares a PSA that assesses a defendant’s level of risk on two scales: 

for failure to appear and for new criminal activity. Ibid. The PSA also 

recommends whether to release a defendant, and if so, what conditions of 

release to impose. Ibid. Once again, section 20 of the Act expressly 

authorizes a court to consider “[t]he release recommendation of the pretrial 

services program obtained using [the] risk assessment instrument.” N.J.S.A. 

2A:162-20(f). 

IV.

We rely on settled principles of statutory construction to determine the 

meaning and scope of the CJRA.

The goal of all statutory interpretation is “to determine and give effect to 

the Legislature’s intent.” In re Registrant H.D., 241 N.J. 412, 418 (2020)

(quoting DYFS v. A.L., 213 N.J. 1, 20 (2013)). Courts start with the plain 

language of the statute, “which is typically the best indicator of intent.” State 

v. McCray, 243 N.J. 196, 208 (2020) (quoting In re T.B., 236 N.J. 262, 274 

(2019)). And courts must give words “their generally accepted meaning.”

N.J.S.A. 1:1-1. 
23

A statute’s words and phrases should also “be read and construed with 

their context.” Ibid. We do not read them in isolation; we instead consider 

“them in context with related provisions so as to give sense to the legislation 

as a whole.” DiProspero v. Penn, 183 N.J. 477, 492 (2005).

If the language of a statute is clear, a court’s task is complete. McCray, 

243 N.J. at 208. If the text is ambiguous, courts may consider extrinsic 

materials, including legislative history, committee reports, and other sources, 

to discern the Legislature’s intent. In re Ridgefield Park Bd. of Educ., 244 

N.J. 1, 18 (2020). 

V.

A.

To determine whether the CJRA authorizes judges to detain defendants 

who face possible removal by immigration officials, we begin with the plain 

language of the Act. Once again, the relevant text provides for detention when 

no combination of conditions “would reasonably assure the eligible 

defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1) 

(emphasis added).

Unlike the law’s federal counterpart, which we briefly consider later, the 

CJRA does not specifically address whether or how judges may consider the 

intervention of federal immigration officials. Cf. 18 U.S.C. § 3142(d)(1)(B)
24

(authorizing federal judges to temporarily detain certain non-citizens who may 

flee or pose a danger, for up to ten days, so that immigration officials can 

decide whether to take the person into custody during that time). The CJRA’s 

text is revealing in other ways, though, starting with the ordinary meaning of 

the language the Legislature used.

“Appearance” commonly involves action. Webster’s Third New 

International Dictionary, for example, defines the term as “the act, action or 

process of appearing” -- as in, “the act or action of coming before the public,” 

“the act or action of coming formally before an authoritative body,” “the 

coming into court of either of the parties to a suit,” and “the coming into court 

of a party summoned in an action.” Webster’s Third New Int’l Dictionary

(Unabridged) 103 (1981); see also Black’s Law Dictionary 122 (11th ed. 2019)

(defining “appearance” as “[a] coming into court as a party or interested 

person . . . esp., a defendant’s act of taking part in a lawsuit”); Ballentine’s 

Law Dictionary 82 (3d ed. 1969) (defining “appearance” as “the overt act by 

which [a defendant] submits himself to the court’s jurisdiction”).

A defendant’s “appearance in court” thus commonly refers to the 

voluntary act of showing up. Consistent with N.J.S.A. 1:1-1, words and 

phrases in a statute must not only be given their “generally accepted meaning,” 
25

they must also be considered in context. Viewed in that way, the use of 

“appearance” in the CJRA again implies a voluntary act by the defendant. 

The statute lists three grounds for detention in a single sentence: to 

reasonably assure a “defendant’s appearance in court,” “the protection” of the 

public, and “that the eligible defendant will not obstruct or attempt to obstruct 

the criminal justice process.” N.J.S.A. 2A:162-18(a)(1). The second and third 

phrases plainly refer to a defendant’s voluntary behavior -- the risk the 

defendant might harm someone or obstruct justice. Those phrases offer 

context for the word “appearance” and permit an inference that the term 

likewise refers to a defendant’s voluntary act of showing up in court as 

required. See Molchor, 464 N.J. Super. at 289.

Other parts of the statute reinforce the conclusion that the Act addresses 

a defendant’s own choices. The law is painstakingly designed to measure and 

manage the level of risk each defendant presents. In that regard, as discussed 

earlier, the CJRA called for the development of a nuanced risk assessment 

instrument “based on analysis of empirical data and risk factors relevant to the 

risk of failure to appear in court,” among other concerns. N.J.S.A. 2A:162-

25(c)(1). The tool, as noted, assesses the behavior, characteristics, and history 

of each defendant. See Robinson, 229 N.J. at 62. Neither the tool nor the 
26

statutory factors listed in section 20 of the CJRA measure actions by third 

parties such as ICE. See ibid.; N.J.S.A. 2A:162-20.

The factors the Legislature included in section 20 likewise call upon 

judges to consider a defendant’s conduct, history, and relationships. One 

factor is particularly telling. The law invites judges, when they are deciding 

whether to detain a defendant pretrial, to consider a defendant’s “record 

concerning appearance at court proceedings.” N.J.S.A. 2A:162-20(c)(1)

(emphasis added). Here, more plainly than in section 18, the phrase the 

Legislature repeated relates directly to a defendant’s prior voluntary conduct. 

The related language in section 20 sheds light on the meaning of the words in 

section 18 -- and on the Legislature’s intent. See Gilleran v. Township of 

Bloomfield, 227 N.J. 159, 172 (2016) (noting statutory words should be 

considered in context with related provisions). 

B.

To discern the intent of the Legislature, we also consider the meaning of 

the phrase “appearance in court when required,” N.J.S.A. 2A:162-18(a)(1), in 

light of the statute’s overall scheme and purpose, see Merin v. Maglaki, 126 

N.J. 430, 436 (1992). 

At the outset of the CJRA, the Legislature declared the law “shall be 

liberally construed to effectuate the purpose of primarily relying upon pretrial 
27

release by non-monetary means.” N.J.S.A. 2A:162-15. Defendants charged 

with certain eligible, serious offenses can be held in custody. Id. at -19(a)(1) 

to (a)(6).

3

 In those serious matters, a judge, after considering various relevant 

factors, must find clear and convincing evidence to justify detention. See id. at 

-18(a)(1), -18(b), -19, -20. A presumption of detention, which can be rebutted, 

exists only for cases in which the court finds probable cause that defendants

committed murder or a crime that subjects them to a sentence of life 

imprisonment. Id. at -19(b). 

The law’s graduated scheme serves the Legislature’s stated aim: to rely 

primarily on pretrial release and reserve detention for defendants who pose a 

serious risk of non-appearance, danger, or obstruction. See id. at -15. 

Moreover, the Act empowers judges to implement its framework and decide 

the question of pretrial release. 

The State argues that pretrial detention is justified when a defendant’s 

risk of removal is certain and imminent. If that were the case, defendants 

could be detained no matter the nature and circumstances of their eligible 

3

 The statute contains a catch-all provision at N.J.S.A. 2A:162-19(a)(7), which 

provides for the possibility of detention for any crime if the prosecutor 

believes there is a serious risk of non-appearance, danger, or obstruction. But 

aside from certain listed offenses under section 19(a)(6), it is not common for 

someone charged with a fourth-degree offense, for example, to be detained

unless the surrounding circumstances are serious. See In re Request to Release 

Certain Pretrial Detainees, ___ N.J. ___, ___ (2021) (slip op. at 7).
28

offense, the strength of the evidence against them, their record of appearing in 

court in the past, their ties to and length of residence in the community, their 

past conduct, or other considerations the Legislature outlined. See id. at -20.

To be clear, we are considering individuals who would not otherwise be 

subject to pretrial detention. Under the State’s argument, which assumes that 

one can be certain when removal is imminent, the single determining factor 

would be whether immigration officials appeared likely to succeed in their 

efforts to remove an individual. Such an approach would effectively cede 

decisions on pretrial release to an outside agency and remove that authority 

from judges. Trial judges in those cases would in essence be compelled to 

enter an order of detention. The CJRA, as written, does not provide for that.

The logical scope of the State’s argument raises a related concern. 

Under its view, acts and decisions of others can provide a basis to detain a 

defendant -- a notion that could extend beyond immigration proceedings, as 

defendant Rios and the ACLU note. For example, suppose a defendant 

presented a minimal risk of danger, non-appearance, or obstruction, but faced a 

threat of harm from others. Could a court detain the person because others 

might harm him and prevent his return to court? If so, could the defendant 

later ask to be released because the danger had gone away? No fair reading of 

the statute allows for that type of analysis or outcome, which, like removal by 
29

ICE, depends entirely on the behavior of third parties. Instead, the CJRA ties 

detention to a defendant’s voluntary acts and related factors. 

In both of the above situations, the State’s interpretation of the CJRA

would also run counter to the law’s command to liberally construe the statute 

in favor of pretrial release. Id. at -15.

In the language, structure, and purpose of the CJRA, we find evidence 

that the Legislature intended to authorize pretrial detention when there is clear 

and convincing evidence that individual defendants pose a serious risk of nonappearance based on their own conduct, not the acts of third parties like ICE. 

But because the statute does not expressly mention the risk of removal by 

immigration authorities, and is arguably ambiguous for that reason, we 

consider the Act’s legislative history as well. 

C.

The legislative history of the CJRA makes clear that the Legislature did 

not debate whether decisions by immigration officials could form the basis for 

pretrial detention. Three strands in the historical record, however, do shed 

light on the issue, and two of them imply that an order of detention should be 

based on a defendant’s own behavior. 

First, the enactment of the CJRA followed an extensive report from the 

Joint Committee on Criminal Justice. See Robinson, 229 N.J. at 53-54. The 
30

broad-based Committee was comprised of various stakeholders in the criminal 

justice system; its membership included representatives of the Executive

branch, the State Senate, and the Assembly. Id. at 53; Report of the Joint 

Committee on Criminal Justice 97 (Mar. 10, 2014), https://

www.njcourts.gov/courts/assets/criminal/finalreport3202014.pdf (JCCJ 

Report). 

The Committee examined and recommended changes to the State’s 

criminal justice system -- specifically, the need for bail reform and a speedy 

trial act. Robinson, 229 N.J. at 53-54; JCCJ Report at 1. The Legislature, in 

turn, adopted many of the reforms proposed in the JCCJ Report. Compare

JCCJ Report at 8-9, with N.J.S.A. 2A:162-15 to -26; see also S. Budget &

Appropriations Comm. Statement to S. 946 1 (June 5, 2014) (explicitly 

referring to the JCCJ Report); Assemb. Judiciary Comm. Statement to A. 1910

1 (June 12, 2014) (same).

The JCCJ Report focused at length on the topic of pretrial release. See

JCCJ Report at 1-4, 8, 11-68. Among other guiding principles, the Report 

observed that a “defendant’s pretrial freedom” can be “restricted to respond to 

risks of pretrial misconduct.” Id. at 14. “Pretrial misconduct,” the report 

explained, “takes two forms: (1) “nonappearance in court when required

(hereinafter ‘flight’) and (2) commission of additional crimes, witness 
31

intimidation or witness retaliation, while released and awaiting trial 

(hereinafter ‘community danger’).” Ibid. (emphases added). In short, the 

report expressly equated “nonappearance in court” with “flight.” Ibid.

The Report went on to recommend a framework to identify and manage 

those “risks of pretrial release misconduct.” Id. at 15-16, 18. The proposal 

included the use of individualized risk assessments, id. at 57-61, and pretrial 

detention for “defendants who present unmanageable risks of pretrial 

misconduct,” id. at 62. The CJRA, in turn, used language similar to what

appears in the Report. For example, as noted before, the Act provides for 

detention to reasonably assure a defendant’s “appearance in court when 

required,” N.J.S.A. 2A:162-18(a) -- language the Report treated as 

synonymous with “flight,” JCCJ Report at 14.

The second strand of legislative history relates to the same point. When 

the CJRA was first introduced on January 27, 2014, it provided for detention 

to “ensure the defendant’s appearance as required,” S. 946 § 4(a) (as 

introduced, Jan. 27, 2014), and authorized prosecutors to move for detention in 

“case[s] that involve[] a serious risk that the defendant will flee,” id.

§ 5(a)(2)(a). An accompanying statement by the Senate Judiciary Committee 

used the term “flee” in the same context. See S. Judiciary Comm. Statement to 

S. 946 1 (Mar. 24, 2014).
32

An amended bill dated June 5, 2014 stated prosecutors could seek 

detention if they “believe[] there is a serious risk that the defendant will not 

appear in court as required.” S. 946 § 6(a)(6)(a) (First Reprint, June 5, 2014).

In other words, the revised bill substituted the phrase “will not appear in court 

as required” for “will flee.” Ibid. The bill, reported by the Senate Budget and 

Appropriations Committee, offered no reason for the change. See generally S.

Budget & Appropriations Comm., Statement to S. 946 (June 5, 2014). The 

revised language remained in the final version of the Act. See L. 2014, c. 31, 

§ 5(a)(7)(a).

The State and the Attorney General argue the removal of the reference to 

flight confirms the Legislature did not intend to create a volitional act 

requirement in the CJRA. They maintain the amendment is significant and 

permits judges to consider all circumstances that would prevent a defendant 

from standing trial. 

The meaning of the amendment, though, is far from clear. As the 

Appellate Division noted, the revised language “[c]onceivably” reveals the 

Legislature intended to expand the grounds for detention beyond cases of 

flight to include defendants who simply choose to remain at home and not 

appear in court. Molchor, 464 N.J. Super. at 292. 
33

Recent data reveals that happens often. The CJRA went into effect in

2017. Robinson, 229 N.J. at 55. For that full year, the court appearance rate 

for defendants, out of tens of thousands of cases, was 89.4% -- three 

percentage points lower than in 2014, when the rate was 92.7%. New Jersey 

Courts, 2018 Report to the Governor and the Legislature 14-15, 18 (2018), 

https://njcourts.gov/courts/assets/criminal/2018cjrannual.pdf?c=taP. Yet the 

data shows that defendants, in general, did not flee, because their cases were 

disposed of in roughly the same amount of time as before. Id. at 15-16. About 

80% of cases that began in 2014 were completed within 22 months; about 78% 

that began in 2017 were completed in the same time frame. Ibid. 

In other words, despite missing one or more court appearances, 

defendants generally did not flee. They returned to court to resolve their 

cases. Prosecutors can seek to detain those defendants under the CJRA; they 

could not under the initial draft of the bill. Compare N.J.S.A. 2A162:19(a)(7)(a) (permitting prosecutors to seek detention when there is a 

serious risk the defendant “will not appear in court as required”), with S. 946

§ 5(a)(2)(a) (as introduced, Jan. 27, 2014) (permitting prosecutors to seek 

detention when there is a serious risk that a defendant “will flee”). 
34

At oral argument, the Attorney General acknowledged that the number 

of defendants who do not to appear in court because they voluntarily absent 

themselves -- but do not flee -- far outpaces the number who are deported.

There may also be a simpler explanation for the amendment, which can 

be gleaned from the timeline. Between January and June 2014 -- when the 

Legislature changed the risk that a defendant “will flee” to “will not appear in 

court as required” as a basis for a prosecutor to seek detention -- the JCCJ 

issued its report. The March 10, 2014 report equated the two phrases. JCCJ 

Report at 14. It is possible, then, that the Legislature meant very little when it 

substituted words that were considered interchangeable. 

Ultimately, we cannot discern the precise reason for the change because 

none was offered. But in light of the above history and timeline, it can hardly 

be said the amendment presents conclusive proof the Legislature wanted to 

permit pretrial detention of defendants who might not appear in court through 

no choice of their own.

The Legislature also used different language when it proposed a 

constitutional amendment -- on which the CJRA was conditioned -- to allow 

for pretrial detention. Robinson, 229 N.J. at 54; see also L. 2014, c. 31, § 21. 

This third strand of legislative history, the proposed amendment that the voters 

approved, eliminated the right to bail in the Constitution. S. Con. Res. 128 § 1
35

(2014) (enacted and incorporated at N.J. Const. art. I, ¶ 11). In its place, the 

amendment provided defendants a right “to be eligible for pretrial release,” 

which could be denied if a court found that no “conditions would reasonably 

assure the person’s appearance in court when required, or protect the safety of 

any other person or the community, or prevent the person from obstructing or 

attempting to obstruct the criminal justice process.” Ibid. 

The Legislature crafted an interpretive statement for voters to review 

alongside the proposed amendment. The statement on the ballot explained 

courts would have “the option of ordering a person to remain in jail in some 

situations” -- namely, “[t]he court could order such detention based upon 

concerns that the person, if released: will not return to court.” Id. § 3(b) 

(emphasis added).

Here, again, the word “return” commonly refers to a person’s own 

actions -- not the behavior of others that may prevent someone from acting. 

See Merriam-Webster’s Collegiate Dictionary 1065 (11th ed. 2003) (defining 

“return” as “to go back or come back again” and “the act of coming back to or 

from a place or condition”); New Oxford American Dictionary 1493 (3d ed. 

2010) (defining “return” as to “come or go back to a place or person” and “an 

act of coming or going back to a place or activity”). Voters were asked about 
36

detaining someone who “will not return to court,” not someone who “will not 

be in a position to return to court” because of a third party.

We do not rely on federal case law that interprets the federal Bail 

Reform Act in this instance. The Legislature looked to the Bail Reform Act 

when drafting the CJRA, as noted in Robinson, 229 N.J. at 56, and federal law, 

like the CJRA, permits judges to detain a defendant when “no condition or 

combination of conditions will reasonably assure the appearance of the person 

as required and the safety of any other person and the community.” 18 U.S.C. 

§ 3142(e)(1); see also N.J.S.A. 2A:162-18(a). But the Bail Reform Act differs

from the CJRA in this area in two ways. 

First, unlike the CJRA, the federal statute expressly provides for 

consideration of immigration status. It empowers judges to detain certain noncitizens temporarily if the court “determines that the person may flee or pose a 

danger.” 18 U.S.C. § 3142(d). Immigration officials, who are notified by the 

prosecution, then have ten days to decide whether to take the person into 

custody. Ibid. If ICE chooses not to do so, the defendant is assessed for 

pretrial detention like any other defendant would be. Ibid. The Legislature, 

however, declined to explicitly address immigration status in the CJRA despite 

looking to the federal act as a model.
37

The CJRA and federal law differ in another way as well: the Bail 

Reform Act authorizes prosecutors to move for pretrial detention if there is a 

serious risk the defendant “will flee.” 18 U.S.C. § 3142(f)(2)(A); but cf.

N.J.S.A. 2A:162-19(a)(7)(a) (authorizing prosecutors to seek detention when 

they believe there is a serious risk the defendant “will not appear in court as 

required”). Because of those differences, we do not consider federal case law 

interpreting the Bail Reform Act to resolve the issue in this appeal.

In the end, the issue here is about the interpretation of a state statute. 

The question is not whether the sovereign had the power to act; it is what the 

law -- as written -- actually authorizes. 

VI.

Another important concern influences our analysis. A bedrock principle 

of our system of justice is that individuals charged with a crime are presumed 

innocent. See In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin v. 

United States, 156 U.S. 432, 453 (1895)). For like reasons, “[i]n our society 

liberty is the norm, and detention prior to trial or without trial is the carefully 

limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).

Detention statutes must be narrowly drawn to live up to those basic 

principles. See id. at 749-50 (upholding the constitutionality of the Bail 

Reform Act because it “narrowly focuses on a particularly acute problem in 
38

which the Government interests are overwhelming”). The CJRA, like federal 

law, therefore requires that a heightened standard be met before a person can 

be detained pretrial: a finding by clear and convincing evidence that no 

combination of conditions would reasonably guard against the risk of nonappearance, danger, or obstruction. N.J.S.A. 2A:162-18(a); see also 18 U.S.C. 

§ 3142(f).

The Public Defender and amici emphasize that decisions relating to the 

removal of non-citizens are highly discretionary and involve complex legal 

issues, making the risk of deportation extremely difficult to predict. The 

extensive review of the immigration process presented by the Professors, 

Former Judges, and the Public Defender reveals that various factors can 

influence whether and when a non-citizen will actually be deported -- ranging 

from ICE’s exercise of discretion, to the defenses and opportunities for relief 

available to a particular non-citizen; from different legal and practical hurdles 

that can make it difficult to execute a final order of removal, to the backlog in 

immigration courts; and more. According to amici, it is difficult even for 

experts to predict whether an individual will likely be deported.
39

A number of parties and advocates suggest multi-factor tests to gauge 

the likelihood of deportation. The State proposes a three-factor test.4 The 

Public Defender, on behalf of defendant Rios, argues that removal cannot 

trigger detention under the CJRA but offers six factors to consider in the 

alternative.5 The ACLU agrees that decisions by immigration officials cannot 

justify detention under the Act but proposes seven factors in the alternative.

6

 

The Professors suggest there are yet more considerations those tests do not 

cover.

4

 The State contends that deportation is “certain and imminent” when three 

conditions are satisfied: (1) there is a final order of removal that has not been 

stayed; (2) the defendant has exhausted all appeals and no forms of collateral 

relief are pending; and (3) ICE has obtained travel documents for the 

defendant.

 

5

 The Public Defender proposed these factors in its brief and at oral argument: 

(1) there is a final order of removal that has not been stayed; (2) the defendant 

has no pending appeals or collateral challenges to the removal order; (3) the 

defendant is in ICE custody; (4) ICE has obtained appropriate travel 

documents; (5) a flight has been scheduled to the receiving country; and (6) 

the State has exhausted all of its options to guarantee the defendant’s 

appearance at trial.

6

 The ACLU presented these factors in its brief and at oral argument: (1) 

there is a final order of removal that has not been stayed; (2) the defendant has 

no pending appeals or collateral challenges to the removal order; (3) ICE has 

obtained travel documents; (4) the defendant is in ICE custody; (5) the State 

has made a sufficient effort to forestall removal; (6) ICE has obtained a ticket 

for a flight; and (7) the defendant is charged with a serious crime. 
40

One thing seems apparent. If the Legislature were to ask judges to 

consider the likelihood of removal when they decide detention motions, it 

would be quite challenging, to say the least, for judges, prosecutors, and 

defense attorneys -- many of whom are unfamiliar with immigration law and 

practice -- to make accurate predictions. Yet judges can order detention only 

if they find that “clear and convincing evidence” requires that outcome. 

N.J.S.A. 2A:162-18(a). The legal standard and the realities of immigration 

proceedings are not easily reconciled.

VII.

The Appellate Division correctly remanded the cases involving 

defendants Molchor and Rios to the trial court “to weigh the risk of nonappearance arising only from defendants’ own potential misconduct or 

volitional acts.” Molchor, 464 N.J. Super. at 297. Those hearings have been 

completed, and both defendants were released on conditions. 

At a hearing on remand, just as at an initial detention hearing, trial 

courts consider a host of factors to assess whether a defendant presents a risk 

of non-appearance. N.J.S.A. 2A:162-20. A defendant’s family ties, length of 

residence in the community, and community ties all bear on the risk that an 

individual might choose not to appear in court. Ibid. Ties to another country 

can likewise inform a court’s decision. 
41

To be clear, a person’s immigration status alone cannot be dispositive. 

See Molchor, 464 N.J. Super. at 297 (“[A] defendant’s immigration status 

alone can rarely if ever justify a finding that the defendant poses a risk of 

flight.”). Courts must engage in a fact-specific inquiry that looks beyond 

status because each person’s circumstances -- citizens and non-citizens alike --

are different. Non-citizens who have lived here for years, gone to school here, 

raised families here, and established roots in their communities may pose only 

a minimal risk of non-appearance. Other non-citizens who arrived recently 

and have no such connections may pose a much greater risk of 

non-appearance. 

In State v. Fajardo-Santos, we found that courts could “consider a 

defendant’s immigration status in evaluating the risk of flight or nonappearance.” 199 N.J. 520, 531 (2009). In doing so, we pointed to the impact 

of immigration status and the filing of a detainer on a person’s decision 

whether to appear in court. We noted that some defendants faced with “a 

greater prospect of removal will have an additional incentive not to appear,” 

while others “might be more determined to clear their name and vigorously 

contest removal to remain with family members in the United States.” Id. at 

531-32. To be clear, we intended, then and now, to invite an inquiry into how 

non-citizen defendants facing immigration action will decide to respond to 
42

their obligation to appear in court, a question that status alone does not answer. 

Aside from concerns about the risk of danger or obstruction, the key question 

for the court is whether a defendant will choose to appear, not what the 

person’s immigration status is. 

The decision in Fajardo-Santos concluded that judges could increase bail 

for a non-citizen who was subject to an ICE detainer. Id. at 523, 532. As 

noted earlier, various amici and the Public Defender persuasively argue that 

the existence of a detainer or the start of removal proceedings does not mean 

that removal is either highly likely or imminent. In Fajardo-Santos, we did not 

have the benefit of the helpful briefs submitted in this appeal, and the decision 

overstated the significance of the filing of a detainer in the removal process. 

See id. at 523, 531. ICE agents -- not judges -- issue detainers when they 

believe there is probable cause to remove a non-citizen; detainers are requests 

to law enforcement, not mandatory orders, to permit ICE to assume custody. 

See 8 C.F.R. § 287.7; Gonzalez v. ICE , 975 F.3d 788, 799 (9th Cir. 2020);

Hernandez v. United States, 939 F.3d 191, 200 (2d Cir. 2019); Galarza v. 

Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014); Lunn v. Commonwealth, 78 

N.E.3d 1143, 1148-53 (Mass. 2017). Regardless, Fajardo-Santos does not 

support the proposition that decisions by immigration officials can justify 

pretrial detention under the CJRA. 
43

Fajardo-Santos considered New Jersey’s prior system of pretrial release, 

which relied heavily on the use of monetary bail. 199 N.J. at 530. And the 

Court’s conclusion rested in part on an interpretation of case law and a court 

rule in effect at the time of the 2009 appeal. See ibid. (citing State v. Johnson, 

61 N.J. 351, 364 (1972); R. 3:26-1(a) (2009)). The ruling did not interpret a 

statute or its text, and the CJRA, of course, did not come into existence for 

another five years. Fajardo-Santos is not an interpretive aid for the CJRA or 

the issue now on appeal. 

VIII.

It is important to keep in mind that these appeals involved defendants 

who did not present a serious risk of flight, danger, or obstruction. Since 

2017, defendants posing those types of risks have been detained under the 

CJRA. 

The Attorney General could not estimate how many non-citizen 

defendants who are not detained are deported each year. The State conceded 

the concern involves “a relatively small total number of cases” in the overall 

context of pretrial release. Also, the parties have not provided data on how 

many defendants facing removal actually resolve their cases while the 

immigration process unfolds. Prosecutors can and do seek to defer action and 
44

stay removal in appropriate cases so that the criminal process can be 

completed.

As noted earlier, it would be preferable for ICE to refrain from deporting 

defendants while they await trial for many reasons. If removal proceedings 

occur while a case is pending, we again urge ICE officials to work with 

prosecutors to allow pending criminal charges to be resolved. 

IX.

For the reasons outlined above, we affirm the judgment of the Appellate 

Division in both matters.

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and 

SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN, 

joined by JUSTICE PIERRE-LOUIS, filed a dissent in Lopez-Carrera and 

concurred in the judgment in Molchor and Rios.
1

State of New Jersey,

Plaintiff-Appellant,

v.

Oscar Lopez-Carrera,

Defendant-Respondent.

______________________________________________________________

State of New Jersey,

Plaintiff-Appellant,

v.

Juan C. Molchor,

Defendant-Respondent.

______________________________________________________________

State of New Jersey,

Plaintiff-Appellant,

v.

Jose A. Rios,

Defendant-Respondent.

JUSTICE ALBIN, dissenting in Lopez-Carrera; concurring in Molchor and 

Rios
2

The State possesses the sovereign power to prosecute foreign nationals 

who are charged with committing crimes against New Jersey citizens. New 

Jersey crime victims, in turn, have the right to see that their perpetrators are

brought to justice in this State. The exercise of the State’s power to prosecute 

and the right of crime victims to see justice done, however, can be thwarted if

the U.S. Immigration and Customs Enforcement (ICE) takes into custody

undocumented aliens charged with crimes in New Jersey and removes them to 

their country of origin.1 Today’s decision bars a New Jersey court from 

issuing a detention order to prevent the certain and imminent removal of

defendant aliens on pretrial release. That decision means that those defendants

will not have to answer for their alleged crimes committed in this state.

In construing the Criminal Justice Reform Act (CJRA), N.J.S.A. 

2A:162-15 to -26, the majority comes to a conclusion that is completely at 

odds with the fundamental tenets of state sovereignty and victims’ rights 

guaranteed in the New Jersey Constitution and our laws. In passing the CJRA, 

1

 The term “alien” is used here because it is part of the nomenclature of

federal immigration law and regulation. See, e.g., 8 U.S.C. § 1101(a)(3) 

(defining “alien” as “any person not a citizen or national of the United 

States”); 8 U.S.C. § 1227 (defining who qualifies as a “deportable alien”); 8 

C.F.R. § 287.7 (governing the Department of Homeland Security’s issuance of 

detainers to “seek[] custody of an alien . . . for the purpose of arresting and 

removing the alien”).
3

the Legislature did not express an intention to waive state sovereignty or to 

diminish the constitutional rights of New Jersey crime victims. The CJRA 

authorizes trial courts to deny pretrial release “to reasonably assure an eligible 

defendant’s appearance in court when required.” N.J.S.A. 2A:162-15. Yet, 

the majority has parsed that statutory language to reach a result that the 

Legislature could not have intended -- a result that leaves the State powerless 

to detain a defendant alien, subject to certain and immediate removal by ICE,

to face prosecution and justice in a New Jersey court.

The stark and unsettling consequences of the majority’s decision are 

evident in one of the cases before us. Defendant Oscar Lopez-Carrera was 

indicted on charges related to the sexual molestation of a minor. 2 While on 

pretrial release, defendant was taken into custody by ICE officials. Later, ICE 

informed prosecutors that a final order had been entered for the removal of 

Lopez-Carrera from this country to Guatemala. The State then immediately 

sought to revoke Lopez-Carrera’s pretrial release so that he would not escape 

prosecution for his alleged crimes in New Jersey. Despite urgent appeals from 

2

 Lopez-Carrera was indicted on charges of second-degree attempted sexual 

assault, N.J.S.A. 2C:5-1(a)(1) and 2C:14-2(c)(4), and fourth-degree criminal 

sexual contact, N.J.S.A. 2C:14-3(b). Defendants Juan Molchor and Jose Rios 

were charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), 

and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
4

the State, certifying that Lopez-Carrera would be deported to Guatemala on the 

next available flight, no court -- including the New Jersey Supreme Court --

granted the State’s emergent application for the issuance of a detention order.

3

Because of the failure of our courts to intervene, ICE removed LopezCarrera from the United States to Guatemala, ensuring that he would not face 

justice for his alleged crimes. That discordant result is not commanded by the 

CJRA. I would hold that a court may grant the State’s application for the 

pretrial detention of a defendant alien when a final order of removal has been 

issued, no appeals are pending, and removal by ICE is certain and imminent, 

as in the case of Lopez-Carrera. Because the State could not show that

Molchor’s and Rios’s removals were certain and imminent, pretrial detention 

would have been inappropriate.

Today’s decision will result in more defendant aliens not answering in a 

New Jersey courtroom for serious crimes committed against residents of this

state. It is now for the Legislature to determine whether that decision is the 

result it intended in enacting the CJRA. Because the majority’s interpretation 

of the CJRA preempts this state’s sovereign authority to prosecute certain

3

I voted in favor of granting the State’s emergent application for a detention 

order to prevent Lopez-Carrera’s removal to Guatemala.
5

defendant aliens for offenses committed in this state and denies crime victims

their rights under our laws, I respectfully disagree with the majority’s holding. 

More specifically, I dissent in Lopez-Carrera and concur in the judgment in 

Molchor and Rios.

I.

A.

A “State’s power to prosecute is derived from its own inherent 

sovereignty.” Heath v. Alabama, 474 U.S. 82, 89 (1985) (internal quotation 

marks omitted). Each state is armed with the police power to enforce the 

criminal laws within its jurisdiction and to vindicate the rights of crime 

victims. See United States v. Morrison, 529 U.S. 598, 618 (2000); see also

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (“The States possess primary 

authority for defining and enforcing the criminal law.” (quoting Engle v. 

Isaac, 456 U.S. 107, 128 (1982))); State v. Denofa, 187 N.J. 24, 36 (2006)

(“[T]he State is vested with the power to prosecute and punish crimes that 

occur . . . within its territorial borders.”).

If, in enacting the CJRA, our Legislature intended to cede the State’s 

sovereign power to prosecute aliens who are on pretrial release for crimes 

committed in New Jersey, one would expect it to have done so in clear and 

unmistakable language. Cf. Royster v. State Police, 227 N.J. 482, 494 (2017)
6

(noting that an effective waiver of sovereign immunity requires “a clear and 

unequivocal statement of the Legislature.” (quoting Allen v. Fauver, 167 N.J. 

69, 77 (2001))). Yet, neither the text nor the legislative history of the CJRA 

indicates that the Legislature waived the State’s police power to detain a 

defendant alien who is subject to certain and immediate removal by ICE.

Indeed, a reading of the CJRA that deprives the State of its power to 

bring a defendant alien to justice would eviscerate the rights conferred on 

crime victims in the Victim’s Rights Amendment to our State Constitution, 

N.J. Const. art. I, ¶ 22, and in the Crime Victim’s Bill of Rights, N.J.S.A. 

52:4B-34 to -38. The Victim’s Rights Amendment promises crime victims 

that they will be treated with “fairness, compassion and respect” by the 

criminal justice system. State v. Lawless, 214 N.J. 594, 614 (2013) (quoting

N.J. Const. art. I, ¶ 22). The Crime Victim’s Bill of Rights guarantees victims 

the right to participate in the criminal justice process. See N.J.S.A. 52:4B-36; 

see also State v. Blackmon, 202 N.J. 283, 298-99 (2010). Those promises and 

rights are rendered meaningless if the CJRA preempts a court from entering a 

detention order that prevents the immediate removal of defendant aliens -- an 

order that would require that they face justice in this state. In passing the 

CJRA, the Legislature did not signal its intent to strip the State of its police 

powers or diminish the rights of crime victims. The CJRA must be 
7

harmonized with the State’s inherent sovereign powers and legislative

enactments such as the Crime Victim’s Bill of Rights. Ambiguities in the 

language of the CJRA should not be read to create conflict with other statutory 

schemes.

B.

The CJRA empowers judges to detain defendants when the State has 

shown by clear and convincing evidence that no conditions of pretrial release 

(either non-monetary or monetary) “would reasonably assure the eligible 

defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1)

(emphasis added). Certainly, a “defendant’s appearance in court when 

required” will not happen if ICE removes an indicted defendant alien from the 

country. As the majority correctly notes, the CJRA “does not expressly 

mention the risk of removal by immigration authorities.” Ante at ___ (slip op.

at 29).

Did the Legislature intend the use of the word “appearance” in its 

broadest sense to encompass circumstances that it may not have considered or 

anticipated, such as a removal of a defendant from the jurisdiction by ICE? Or 

did the Legislature intend to use the word “appearance” more narrowly, to 

refer only to voluntary non-appearances?
8

To resolve that perceived ambiguity, the majority essentially rewrites the 

statute by importing into the provision’s text the word “voluntary.” The 

recomposed statute, in effect, reads that a court can detain a defendant only 

when no conditions of release “would reasonably assure the eligible 

defendant’s voluntary appearance in court when required.” But if the drafters 

of the statute intended the word “voluntary” to be in the statute, presumably 

they would have put it there. See DiProspero v. Penn, 183 N.J. 477, 492 

(2005) (“We cannot write in an additional qualification which the Legislature 

pointedly omitted. . . .” (quoting Craster v. Bd. of Comm’rs of Newark, 9 N.J. 

225, 230 (1952))).

The majority justifies importing the volitional requirement by referring 

to various dictionary definitions of “appearance.” Yet such definitions are

hardly conclusive and clearly not determinative of legislative intent. See State 

v. Sisler, 177 N.J. 199, 207 (2003) (noting that a statute “must always be 

construed as a whole, and the particular meaning to be attached to any word or 

phrase is usually to be ascribed from the context, the nature of the subject 

matter treated of, and the purpose or intention of” the drafters (quoting 2A 

Norman J. Singer, Sutherland Statutory Construction § 46:05 at 167-68 (6th 

ed. 2000))); see also Sherman v. Citibank (S.D.), N.A., 143 N.J. 35, 74 (1995) 

(Pollock, J., dissenting) (“More relevant than the meaning that lexicographers 
9

assign to statutory terms is the meaning assigned by the Legislature.”), 

vacated, 517 U.S. 1241 (1996). Merely because the term “appearance” 

typically involves a voluntary act does not suggest that it always does. The 

CJRA’s legislative history suggests that the Legislature intended to allow for a 

defendant’s detention even in the absence of a willful non-appearance from 

court.

An initial draft of the CJRA provided that a prosecutor could move for 

detention if there was a “serious risk that the defendant will flee,” S. 946

§ 5(a)(2)(a) (Jan. 27, 2014) (emphasis added). That language clearly envisions

the potential for a voluntary act by a defendant, i.e., flight. The Legislature, 

however, amended that language to account for the “serious risk” that “the 

defendant will not appear in court as required,” S. 946 § 6(a)(6)(a) (June 5, 

2014) (emphasis added); N.J.S.A. 2A:162-19(a)(7)(a).

The change in language -- from narrow to broad -- may have been a 

simple acknowledgement by the Legislature that it could not foresee every 

scenario in which the statute might apply. See Perrelli v. Pastorelle, 206 N.J. 

193, 208 (2011) (“It is frequently difficult for a draftsman of legislation to 

anticipate all situations and to measure his words against them.” (quoting New 

Capitol Bar & Grill Corp. v. Div. of Emp. Sec., 25 N.J. 155, 160 (1957))). 

And for that reason, the Legislature may have added broader language to give 
10

play in the joints of the statute to encompass circumstances such as a 

defendant’s non-appearance because of the actions of immigration authorities. 

See Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (“[W]here a 

statute . . . does not expressly address a specific situation, the court will 

interpret it ‘consonant with the probable intent of the draftsman.’” (quoting 

AMN, Inc. of N.J. v. S. Brunswick Twp. Rent Leveling Bd., 93 N.J. 518, 525 

(1983))).

Further, in deciding whether pretrial detention or release is appropriate, 

trial courts, when reviewing a defendant’s “history and characteristics,” may 

consider non-volitional factors such as a defendant’s “physical and mental 

condition,” “family ties,” and “financial resources.” N.J.S.A 2A:162-20(c)(1). 

Those factors do not implicate “voluntary” conduct by persons subject to 

pretrial detention.

To the extent that the CJRA’s language is susceptible to more than one

reasonable interpretation, then we must consider the common-sense objectives 

of the Legislature and harmonize the CJRA with the State’s inherent sovereign 

powers and enactments such as the Crime Victim’s Bill of Rights. Dvorkin v. 

Township of Dover, 29 N.J. 303, 315 (1959) (“[W]hen the lawgiver’s intent is 

in doubt, the court ought to interpret the law to be what is most consonant to 

equity . . . .” (quoting Kerlin’s Lessee v. Bull, 1 U.S. 175, 178 (1786))). 
11

Viewed in that light, we should not impute to the Legislature an intent to 

achieve a seemingly absurd result -- an intent to strip a court’s power to enter a 

detention order to prevent a defendant alien’s removal from the country and

his escape from justice. See State v. Nance, 228 N.J. 378, 396 (2017) 

(“[S]tatutory interpretations that lead to absurd or unreasonable results are to 

be avoided.” (alteration in original) (quoting State v. Haliski, 140 N.J. 1, 9 

(1995))).

II.

To be clear, I am not suggesting that a detention order can be entered 

solely because of an alien’s status. Ordinarily, an alien’s status should not be 

a factor. However, when a final order of removal has been entered, no appeals 

are pending, and ICE has reported that a defendant alien’s removal from the 

country is certain and imminent, that is a different matter. Indeed, in the case 

of Lopez-Carrera, a flight was readied for his departure to Guatemala. In those 

circumstances, the State has met its burden that no condition of release “would 

reasonably assure the eligible defendant’s appearance in court when required.” 

N.J.S.A. 2A:162-18(a)(1); see also N.J.S.A. 2A:162-19(a)(7) (allowing the 

prosecutor to move for a defendant’s pretrial detention where there is a 

“serious risk” of a defendant’s nonappearance).
12

That common-sense interpretation is consistent with the objectives of the

CJRA, the State’s exercise of its inherent sovereign power, and the Victim’s 

Rights Amendment and Crime Victim’s Bill of Rights. That interpretation 

ensures that defendants like Lopez-Carrera will answer for their alleged crimes

in a New Jersey courtroom and face their victims.

Under the CJRA, defendants charged with such crimes as aggravated 

sexual assault, armed robbery, kidnapping, and other serious offenses are 

subject to pretrial release. In all of those cases, victims have a right to see 

those defendants -- whether United States citizens or foreign nationals --

brought to justice. It is now for the Legislature to determine whether, in 

passing the CJRA, it intended to strip our courts of the power to enter 

detention orders that would prevent the removal of defendant aliens charged 

with committing crimes in this state.

For the reasons expressed, I respectfully disagree with the majority’s 

holding, and I dissent in Lopez-Carrera and concur in the judgment in Molchor

and Rios.