One of the great tragedies of the COVID-19 pandemic has been the thousands of New Jersey pretrial detainees who – despite being presumed innocent and not having been convicted of any crime – are languishing in unsafe conditions in county jails while courts remain closed to jury trials. On February 11, 2021, the New Jersey Supreme Court endorsed the reopening of thousands of detention hearings by inmates detained for longer than six months, citing the “due process concerns” caused by the unexpectedly lengthy suspension of criminal trials in New Jersey.

The decision came about after the Office of Public Defender (OPD) and the American Civil Liberties Union (ACLU) asked the New Jersey Supreme Court to release all detainees charged with a second-degree offense or lower if they had been detained for six months or more and for a hearing process for inmates held on a first-degree charge. In doing so, the OPD noted that 1,044 of its clients were being held in detention for relatively minor third-degree offenses, 234 on fourth-degree offenses, and 28 on disorderly persons charges – without any prospect of a trial any time in the near future. The County Prosecutors Association and New Jersey Attorney General’s Office opposed the request on the ground that any release of inmates based on category alone would violate the Bail Reform Act.NJ Supreme Court Endorses the Reopening of Thousands of Detention Hearings

The Supreme Court charted a middle path by noting that a provision of the Bail Reform Act, N.J.S.A. 2A:162-19(f), already permits defendant detainees to reopen detention hearings where they can present information that was not known at the time of the initial detention hearing and has a material bearing on the release decision. The Court concluded that “the unexpected duration of the pandemic coupled with the continued suspension of jury trials, with no clear end date for either, constitutes new information within the meaning of N.J.S.A. 2A:162-19(f).” In doing so, the Court approved the wholesale reopening of thousands of detention hearings and provided a framework through which judges should revisit the question of release on a case-by-case basis.

The Court’s framework encourages judges to consider five factors:

  1. The length of the detention and projected length of ongoing detention,
  2. Whether the defendant’s time in jail waiting for trial is likely to exceed their sentence if convicted,
  3. The existence and nature of a plea offer,
  4. A defendant’s health risks and susceptibility to serious illness from COVID-19, and
  5. All of the factors that are typically considered in a detention hearing under normal circumstances.

The Supreme Court instructed that defendants who can make “a preliminary showing that they are entitled to relief under of any one of the above factors” have the right to reopen their detention hearings.

Stahl Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at