Tuesday, September 15, 2009

P.L. 2001, c. 129 (A-3201) - Specifies the crimes encompassed under the provisions of the "No Early Release Act,” including murder.

P.L. 2001, c. 129 (A-3201) - Specifies the crimes encompassed under the
provisions of the "No Early Release Act,” including murder.

On June 29, 2001, Acting Governor DiFrancesco signed A-3201 into law as P.L. 2001,
c.129. The new law was effective June 29, 2001. Attached is a copy of the law for your

The new law amends P.L.1997, c.117 (N.J.S.A. 2C:43-7.1 et seq.), the “No Early Release
Act” (NERA), to specifically enumerate the first and second degree crimes for which defendants
must serve at least 85% of the sentence imposed by the court before being eligible for parole.

The law was enacted is in response to several recent Appellate Division decisions that have
held that in its present form, NERA is inapplicable to certain crimes, including murder. In State v.
Manzie, 335 N.J.Super. 267 (App.Div. 2000), the Appellate Division held that NERA does not apply
to murder because this crime is not specifically referred to in NERA or in the language of the murder
statute, N.J.S.2C:11-3. In State v. Mosley, 335 N.J.Super. 267 (App.Div. 2000) and State v.
Thomas, 322 N.J. Super. 512 (App.Div. 1999); cert. granted 162 N.J. 489 (1999), the Appellate
Division held that NERA does not apply to cases in which the defendant is guilty of sexual assault
under N.J.S.2C:14-2 on grounds that the victim is under the age of 13, as the current language of
NERA requires the element of some additional "physical force."

To clarify the provisions of NERA, the new law specifically lists the crimes that are intended
to be encompassed by the statute. Under the law, NERA would specifically apply to the following
list of crimes of the first or second degree:

(1) N.J.S.2C:11-3 (murder);
(2) N.J.S.2C:11-4 (aggravated manslaughter or manslaughter);
(3) N.J.S.2C:11-5 (vehicular homicide);
(4) a crime under subsection b. of N.J.S.2C:12-1 (aggravated assault);
(5) subsection b. of N.J.S.2C:12-11 (disarming a law enforcement officer);
(6) N.J.S.2C:13-1 (kidnapping);
(7) subsection a. of N.J.S.2C:14-2 (aggravated sexual assault);
(8) subsection b. of N.J.S.2C:14-2 and paragraph (1) of subsection c. of N.J.S.2C:14-2

(sexual assault);
(9) N.J.S.2C:15-1 (robbery);
(10) section 1 of P.L.1993, c.221 (C.2C:15-2) (carjacking);
(11) paragraph (1) of subsection a. of N.J.S.2C:17-1 (aggravated arson);
(12) a crime under N.J.S.2C:18-2 (burglary);
(13) subsection a. of N.J.S.2C:20-5 (extortion);
(14) subsection b. of Section 1 of P.L.1997, c.185 (C.2C:35-4.1) (booby traps in
manufacturing or distribution facilities); or
(15) N.J.S.2C:35-9 (strict liability for drug induced deaths).

Note that the use of the word "violent" has been eliminated from NERA to more accurately
reflect the application of the law to the enumerated crimes.

The amendments clarify that the minimum term required by the "No Early Release Act" must
be fixed as a part of every sentence of incarceration imposed upon every conviction of a crime
enumerated in the law, and that the term must be calculated based upon the sentence of incarceration
actually imposed.

In addition, the law amends N.J.S.A. 2C:35-14, concerning rehabilitation programs for drug
or alcohol dependent persons, to clarify that such a person is not eligible for special probation under
that statute if the person is convicted of a crime of the first or second degree under NERA. Prior to
this amendment, N.J.S.A. 2C:35-14 had provided that a person was ineligible for special probation if
convicted of "a crime of violence" as defined in NERA.

The law also specifies that, solely for the purpose of calculating the minimum term of parole
eligibility, a sentence of life imprisonment shall be deemed to be 75 years. This is the current
practice of the State Parole Board.

Finally, the law eliminates the requirement set out in subsection e. of the NERA statute for a
separate hearing conducted by the court prior to imposing sentence. The sponsors believed that the
hearing was unnecessary in light of the specific references to the crimes encompassed by the statute.

Kindly advise appropriate staff of this new law. Please contact Joseph Barraco, Assistant
Director, AOC Criminal Division at 609-633-2756 if you have any questions regarding Chapter 129.