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Detention Hearings and Risk Assessment Hearings


Since January 1, 2017, New Jersey took a major step to transform its bail system, moving it from what some considered an unfair monetary-based system – which favored the wealthy and punished the poor – to a new deal, based on risk: This new calculation factors in arguments from prosecutors, defenders and a computer algorithm to let a judge decide whether or not an accused citizen will show up for court, or repeat their crimes if let out on bail. This bail reform has had a profound effect on how domestic violence cases are handled in New Jersey.  This new system is proving to be efficient, but it still has its complications.

The processing of someone accused of domestic violence has to do with whether prosecutors issue a “warrant-complaint” or a “complaint-summons.” When a defendant is brought in on charges of domestic violence, prosecutors who believe pretrial detention is required – because of flight risk or potential obstruction of justice – must file a “complaint-warrant” as opposed to a “complaint summons.”



Placing someone accused of domestic violence or letting them out on bail is a triangulation of judge, prosecutor and defense attorney, but in this 21st Century there are also machines involved. Criminologists have devised an algorithm which equates many variables about the accused to determine their level of flight risk – more evidence that the judge takes into consideration.  

Additionally, if there is a “no contact” condition listed in the complaint it is likely that the Defendant will be detained for up to 48 hours for a Risk Assessment Hearing regardless of the specific facts and circumstances.   This essentially means that a defendant will be incarcerated unless the police call into the Prosecutor’s Office for an override.

A Risk Assessment Hearing is held within 48 hours after an arrest, with judge, prosecutor, defendant and defense attorney present. The judge will listen to arguments from prosecutor and defense, but also analyze the output from a computer algorithm which assesses a defendant’s age, the severity of the alleged crime and the criminal history of the accused and output a “risk score” which helps the judge determine whether the defendant will show up for their court date, the defendant will commit another crime or the defendant will commit another violent crime. The judge takes in arguments from both sides, plus the computer output plus the judge’s own judgment to decide whether to incarcerate the accused, or let them free on bail.

Prosecutors at the Risk Assessment Hearing might disagree with a judge’s decision and can present arguments against the pre-trial release of a defendant – the State has 72 hours to hold a plenary hearing on whether a defendant should be granted bail and set free, or placed in pretrial detention.

The new bail reform law is new and still working out kinks, but already there are nearly 3,000 less accused being held in jails, and their “show up” rate for court is proving that this combination of human intuition and computer algorithm is working.



The simple definition of domestic violence is physical or emotional action taken by a partner to control the other partner. But it’s not that simple. There are degrees of domestic violence which are charged from disorderly persons to second degree, with penalties ranging from 30 days in jail to 10 years.

According to the website for New Jersey Courts (https://www.judiciary.state)  “On Jan. 1, 2017, the state shifted from a system that relies principally on setting monetary bail as a condition of release to a risk-based system that is more objective, and thus fairer to defendants because it is unrelated to their ability to pay monetary bail. The statute also sets deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.”

Stuart Rabner, the Chief Justice of the New Jersey Supreme Court, explained the new system like this: “The existing bail system is not fair to poor defendants who, because they cannot post bail, are cut off from families, may lose their jobs, and may go without access to medication for a period of time. In terms of the charges against them, studies have shown that they face tougher plea offers and pressure to plead guilty because of the amount of time they have already spent in jail, and they receive longer sentences as compared to similarly situated defendants who were able to make bail.”



An accusation of domestic violence carries serious short and long-term consequences: fines, jail time, permanent criminal record. The bail and risk assessment process is in a state of change and requires a knowledgeable attorney to navigate. Anyone accused or arrested for domestic violence should talk to Monmouth County domestic violence lawyer Tara Breslow-Testa – before they talk to anyone.

For a free consultation, call Tara Breslow-Testa at: (732) 784-2880


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