On March 13, 2020, the ACLU of New Jersey filed an amicus brief before the Appellate Division in a matter that dealt with ICE detainers and pre-trial detention. The question before the court was how trial courts should weigh the fact that ICE has – or, here, theoretically could -- issue a detainer for a criminal defendant when they make pretrial detention decisions. We argued that while the statute allows courts to detain defendants to manage the risk that the defendant will fail to appear, that is meant to only address volitional decisions by a defendant not to appear. Since deportation requires government action, it is not the sort of risk that the pretrial justice statutes were intended to manage. We suggested several ways in which the State could prevent the defendant’s deportation without requiring his pretrial detention. Although we contended that detention could never be justified by a risk of removal by immigration authorities, we suggested that if the court allowed such justification, it could only do so when removal was imminent and certain.
On July 8, 2020, the Appellate Division agreed that the CJRA contemplated only the risk of non-appearance as a result of volitional acts. The State filed a Motion for Leave to Appeal. The New Jersey Supreme Court granted the motion and agreed to hear the case on an expedited basis.