Presumptions of Incarceration or Non-Incarceration for Criminal Charges in New Jersey

New Jersey lawmakers have made extensive efforts to lower the prison population and offer options to keep those convicted out of jail under certain circumstances. While a vast array of criminal offenses carry the possibility of incarceration, some of them have a presumption of incarceration, while others have a presumption of non-incarceration. A presumption is an idea assumed to be accurate, even though that truth may not be known for certain. First and second degree crimes have a presumption of incarceration. Third and fourth degree crimes, disorderly persons offenses, and petty disorderly persons offenses have a presumption of non-incarceration (with some limited exceptions). It is vital to understand that a presumption of non-incarceration does not mean a judge cannot sentence a defendant to prison time if the circumstances are particularly egregious or there have been multiple offenses.

If you have been charged with a crime in New Jersey, you may not be aware of the various legal options available to you. Our team of experienced criminal defense attorneys at Chamlin, Uliano & Walsh is here to help. We offer a confidential consultation to discuss your criminal situation. Our top priority is providing the best possible defense available to successfully resolve your legal issues. After hearing the details of your case, we can discuss potential defenses and alternative options that may be a possibility to avoid jail or prison time and even a criminal conviction on your record. Contact us at (732) 440-3950 to speak with a criminal defense lawyer from our team, defending clients who have been arrested and issued criminal complaints in Howell, Shrewsbury, Belmar, Neptune, Manasquan, Middletown, Red Bank, Long Branch, Holmdel, and all areas of Monmouth County.

N.J.S.A. 2C:44-1(e) and First Offenders in NJ

N.J.S.A. 2C:44-1(e) provides that anyone convicted of a third-degree, fourth-degree, or lesser crime and are first-time offenders should not be sentenced to jail time. It also lists mitigating and aggravating circumstances that can influence a judgment and includes the criteria for determining a sentence.

Implications of The Criminal Justice Reform Act (CJRA) to Reduce Incarceration Rates

As of Jan. 1, 2017, New Jersey no longer uses a traditional bail system for those who have been arrested. It was replaced with a risk assessment system employing an analysis called a Public Safety Assessment, which determines whether a defendant is dangerous to the community and should remain in custody. Defendants who could be a flight risk are detained, while lower-risk offenders will be released. The bail system was considered unjust because it based a person’s ability to be released on their economic capabilities alone, leaving the poor with little to no risk in jail.

The PSA allows courts and judges to better assess a defendant’s risk to the community. The points examined on the PSA are the defendant’s age, failures to appear, previous sentences of more than two weeks, violence in the pending offense, what the pending offense is, prior convictions, and whether or not they were for violent crimes. The judge can decide pre-trial release based on the PSA submitted by Pretrial Services as well as other considerations, if they feel other factors should be addressed.

This legislation’s importance in lowering the prison population is to only keep the defendants considered dangerous or a flight risk in custody rather than allowing anyone who can pay their bail to go free until trial. It also calls for the prompt filing of an indictment and a speedy trial.

Mitigating Factors That Could Lead to Non-Incarceration

The courts use several criteria, known as mitigating circumstances, to establish a defendant’s eligibility for a presumption of non-incarceration. The defendant didn’t act in a way that caused or threatened grave harm, nor did they consider their actions would cause any harm. If the defendant was strongly provoked or induced by the victim, or there are grounds to justify the defendant’s action to an extent, these can be considered mitigating circumstances. When the defendant has paid the victim compensation for damages or injury, plans to do so, or will participate in community service, those factors will be considered. When a defendant has no priors or many years have passed between offenses and the character and attitude of the defendant show an unlikelihood of another offense being committed, they are a likely candidate for a presumption of non-incarceration. If the defendant has cooperated with the police, will most likely respond well to probationary treatment, or is a young person significantly influenced by someone older than the defendant, they could be considered. Lastly, if going to prison would be a hardship on the defendant or their dependents, that is also a mitigating circumstance.

Which Crimes Are Presumed to Result in Incarceration in New Jersey?

Defendants convicted of crimes in the first or second degree, or a third degree crime where there was activity with organized crime, domestic violence in the presence of a minor under the age of 16, or more than one act of domestic violence, and when the crime of auto theft is committed by someone who has priors for that offense.

Additionally, certain third and fourth-degree crimes are ineligible for a presumption of non-incarceration, such as strict liability vehicular homicide and leaving the scene of an accident resulting in bodily harm. In the third or fourth degree, bias intimidation, gang criminality, or the promotion of organized street crime are also ineligible. Additional convictions include leaving the scene of a boat accident, third-degree interference with the custody of a child, possessing 100 or more items depicting the exploitation or abuse of a child, and distribution of a controlled dangerous substance to a minor or a pregnant woman.

Identifying the Crimes Subject to a Presumption of Non-Incarceration in NJ

Crimes of the third and fourth degree, petty disorderly persons offenses, disorderly persons offenses, and municipal violations are subject to the presumption of non-incarceration, excluding the exceptions noted above as well as certain others. In some cases, a third offense of a specific crime will result in a presumption of automatic jail time, such as a third-time shoplifting conviction. For remaining charges subject to a presumption of non-incarceration, if the defendant has committed a first-time offense and is in no way viewed as a threat to the community, they will most likely avoid a prison sentence. However, the presumption may be removed if the judge believes they threaten the community or their criminal record completely disregards law and order.

Exploring Alternative Options When Non-Incarceration is Assumed

Probation and Pre-Trial Intervention (PTI) are alternatives to a prison sentence. They work similarly but have some differences. The first and most crucial difference is that probation is part of a judge’s sentence once the trial has occurred or the defendant reaches a plea agreement with the prosecutor. PTI, on the other hand, takes place before the case is tried, and once the program is completed successfully, the charges can be dropped. PTI candidates are first offenders only.

There are some similarities between the two. Both the PTI program and probation require the supervision of a probation officer, and both will have a list of conditions you must follow, such as avoiding drugs and alcohol, attending classes, having a job, random drug testing, paying fines or restitution, and reporting a change of address. The most crucial condition is staying out of trouble and not breaking the law. Your probation officer will report any violations in a hearing, and the judge will decide the next steps. If you are in a PTI program, you could be removed and have to face your charges. A probation violation could mean that a judge will resentence you, and you could serve time in jail.

Reduced Charges as a Favorable Option

A reduced charge from a second to a third degree could make the difference between a presumption of incarceration and a presumption of non-incarceration. A lower charge is more advantageous from the standpoint of the defendant, as it opens the door to options that may be otherwise unavailable.

Contact Monmouth County Criminal Attorneys to Understand How Presumptions of Incarceration vs Non-Incarceration Work in NJ

Being charged with a crime is disconcerting. You are unaware of exactly how everything will end up, which is uncomfortable. At Chamlin, Uliano & Walsh, our job is to give you confidence that our top-notch defense attorneys will do everything possible to give you the best possible outcome in Lavallette, Freehold, Colts Neck, Wall, Rumson, Hazlet, or elsewhere in Monmouth County and surrounding communities in Southern New Jersey. We know every case is unique because the circumstances surrounding each case differ. Defending you against the allegations from the prosecution is our priority because your rights matter to us.

If you are facing criminal charges or know someone who is, don’t hesitate. Call our Monmouth County law office today at (732) 440-3950, or tell us how we can help you by completing our contact form by following this link.