Bastarrika, Soto, Gonzalez & Somohano, L.L.P.

Make sure tech doesn't dominate in criminal pretrial matters

The 2002 movie, "Minority Report" tells the story of a future in which a special police force uses psychics and technology to arrest individuals on the basis of predicted crimes, rather than crimes committed. It's science fiction, but in the view of some, New Jersey's current methods for deciding whether a criminal suspect is released or detained pending trial comes disturbingly close to that reality.

How's your PSA score?

At the center of the debate is the PSA score. Not the prostate-specific antigen test some think can indicate prostate cancer risk. In this context, PSA stands for public safety assessment, the output of a search of criminal records that assembles data and ranks, on a scale of one to six, a specific defendant's risk of reoffending or fleeing before trial. The higher the score, the greater the supposed risk.

The system, part of the Bail Reform and Speedy Trial Act, became operative last year in New Jersey. Lawmakers adopted it in response to concerns that the traditional release-on-bail system is inherently unfair. Wealthy defendants could pay, while indigent defendants could not.

Some findings suggest the claim has merit. A 2013 study by the Drug Policy Alliance found that about 40 percent of the individuals in jail awaiting trial at the time were there because they couldn't afford to pay bails of $2,500 or less.

And early assessments of the new law indicate it works. In the first five months of use, records show New Jersey's jail population fell by 19 percent.

Not everyone is happy with the new law. Among the opponents are associations that represent the bail-bond industry operatives and insurance companies that back them. Several lawsuits have been filed claiming the law denies defendants their constitutional right to bail. At the same time, bail industry officials say the system has led to the release of dangerous defendants and increased jailing costs. A federal appeals court recently rejected those arguments in one case, and a second case is still pending.

Disagreements about the use of PSA scoring aside, there are some things any person facing criminal charges should keep in mind. While PSA is one element in the pretrial process, it is not the defining factor. Whether a defendant is released outright, conditionally released, or detained until trial is up to a judge, following arguments from both the defense and prosecution attorneys.

That being so, any defendant dealing with the system should consult an experienced attorney to be confident that his or her individual rights are optimally defended.

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Rated by Super Lawyers - Jose I. Bastarrika - SuperLawyers.com
Rated by Super Lawyers - Jerard A. Gonzalez - SuperLawyers.com
Rated by Super Lawyers - Rising Stars - Cheryl Lin - SuperLawyers.com
Rated by Super Lawyers - Rising Stars - Erin L. Smith - SuperLawyers.com
Rated by Super Lawyers - Rising Stars - John T. Somohano - SuperLawyers.com
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