An Act concerning the public safety risk assessment and amending P.L.2014, c.31.

Whereas, The New Jersey State Commission of Investigation ("SCI") is an independent fact-finding agency empowered by N.J.S.A.52:9M-1 et seq. to investigate public safety matters, monitor and assess the threat posed by organized crime, and recommend new laws and other systemic remedies to protect the integrity of the governmental process on behalf of the citizens of New Jersey; and

Whereas, Recently, SCI investigated concerns regarding illegal firearms and issued a report in September 2024 titled "Illegal Firearms Use & Trends in New Jersey"; and

Whereas, The recent proliferation of privately manufactured "ghost guns," which are easy-to-build homemade guns that do not require background checks and are virtually untraceable, and firearms corrupted with devices enabling them to function like weapons of war, has allowed criminals to outgun the police in many communities; and

Whereas, Under the report, SCI was also concerned with instances where a firearm is discharged in public, as it is an inherently violent offense any time a firearm is discharged in public, with there always being a risk that a stray bullet could injure an innocent bystander and an even higher likelihood with gun conversion devices that turn semi-automatic firearms into rapid-fire machine guns; and

Whereas, The reckless and public discharges of a firearm, including instances when public discharges are charged as criminal mischief or endangering another person, should be categorized as violent offenses, yet in those instances the conduct would not currently be categorized as a violent offense under the Public Safety Assessment ("PSA"); and

Whereas, The PSA is a pretrial risk assessment tool that uses nine risk factors from an individual's criminal history to produce two risk scores: one representing the likelihood of a new crime being committed, and another representing the likelihood of a failure to appear for future court hearings; and

Whereas, The PSA is used at two points in New Jersey's pretrial process: at the time of arrest, when a police officer must decide whether to seek a complaint-warrant or issue a complaint summons; and at the time of the first court appearance, when the court sets release conditions for a defendant who was booked into jail on a complaint warrant; and

Whereas, The nine PSA risk factors developed and assessed by the New Jersey Judiciary are: (1) age at current arrest; (2) current violent offense; (3) pending charge at the time of offense; (4) prior disorderly persons conviction; (5) prior indictable conviction; (6) prior violent conviction; (7) prior failure to appear pretrial in the past two years; (8) prior failure to appear older than two years; and (9) prior sentence of incarceration; and

Whereas, SCI's findings reflected within its September 2024 report reveal that New Jersey should adopt or amend existing laws to address the latest technological advances used by criminal elements to circumvent gun restrictions and corrupt firearms to make them even more dangerous; and

Whereas, Specifically, SCI's report includes a finding that the current PSA risk factor calculations fail to accurately reflect the dangerousness of firearms; and

Whereas, Since the PSA risk factors are produced and assessed by the Judicial branch, the Legislative and Executive branches are joining together to urge the Judicial branch to reassess the PSA risk factors, in accordance with this act, to more accurately reflect changes in technology impacting the dangerousness level of firearms; now, therefore,

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

1. Section 6 of P.L.2014, c.31 (C.2A:162-20) is amended to read as follows:

6. In determining in a pretrial detention hearing whether no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, the court may take into account information concerning:

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 appearances at court proceedings, except with respect to these factors, the court shall not consider manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (12) of subsection b. of N.J.S.2C:35-5, or possession of marijuana or hashish in violation of paragraph (3) of subsection a. of N.J.S.2C:35-10; 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

f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under section 11 of P.L.2014, c.31 (C.2A:162-25). Pretrial services shall recommend no release when a defendant has been charged with any crime [for which the eligible defendant would be subject to a mandatory term of imprisonment pursuant to subsection c. of N.J.S.2C:43-6 for a crime] involving the use or possession of a firearm [other than a violation of:

(1) subsection a. or d. of N.J.S.2C:39-3;

(2) paragraph (1) or (2) of subsection a. of N.J.S.2C:39-4;

(3) subsection a. of section 1 of P.L. 1998, c.26 (C.2C:39-4.1); or

(4) paragraph (1) of subsection b. or paragraph (1) or (2) of subsection c. of N.J.S.2C:39-5].

(cf: P.L. 2022, c.43, s.2)

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

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

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

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

(1) (a) The approved risk assessment instrument shall be objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release. The risk assessment instrument shall not be required to include factors specifically pertaining to the risk for obstructing or attempting to obstruct the criminal justice process.

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

(c) The approved risk assessment instrument shall consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on a violation of any of the following as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: any indictable crime, disorderly persons offense, or petty disorderly persons offense involving the use or possession of a firearm.

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

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

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

3. This act shall take effect immediately.

STATEMENT

This bill requires the approved risk assessment used by the Pretrial Services Program to consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on any crime involving the use or possession of a firearm, as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release.

The purpose of this bill is to urge the Judiciary to reassess the Public Safety Assessment ("PSA") Risk Factors to more accurately reflect the dangerousness of firearms in a more comprehensive manner.

Recently, the New Jersey State Commission of Investigation ("SCI") investigated concerns regarding illegal firearms and issued a report in September 2024 titled "Illegal Firearms Use & Trends in New Jersey." The recent proliferation of privately manufactured "ghost guns," which are easy-to-build homemade guns that do not require background checks and are virtually untraceable, and firearms corrupted with devices enabling them to function like weapons of war, has allowed criminals to outgun the police in many communities.

Under the report, SCI was particularly concerned with instances where a firearm is discharged in public but the conduct would not currently be categorized as a violent offense under the PSA. SCI believes that reckless and public discharges of a firearm, including instances when public discharges are charged as criminal mischief or endangering another person, should be categorized as violent offenses. It is an inherently violent offense any time a firearm is discharged in public, as there is always risk that a stray bullet could injure an innocent bystander. This likelihood is even higher due to gun conversion devices that turn semi-automatic firearms into rapid-fire machine guns.

SCI's findings reveal that New Jersey should adopt or amend existing laws to address the latest technological advances used by criminal elements to circumvent gun restrictions and corrupt firearms to make them even more dangerous. Specifically, SCI's report includes a finding that the current PSA risk factor calculations fail to accurately reflect the dangerousness of firearms.