Sentencing
a. Overview
The New Jersey Code of Criminal Justice governs
sentencing in New Jersey. See, N.J.S.A. 2C. The Code
of Criminal Justice defines what constitutes criminal
activity and what the penalties are for violating the law.
Basically, there are four degrees of crime: first degree,
second degree, third degree and fourth degree. The most
serious criminal activity is in the first-degree category.
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An example of a first-degree crime is armed robbery.
The least serious type of criminal activity is in the fourth
degree category. An example of this would be theft of
goods valued at between $200-$500. Below these four
levels of criminal activity, there are two levels of less
serious, non-criminal activity. These are categorized as
Disorderly Persons and Petty Disorderly Persons
offenses.
Upon conviction of a crime of the first degree, a judge
may sentence within a prescribed range of ten to twenty
years in state prison; for violating a second degree crime,
within a range of five to ten years in state prison; for a
third degree crime, within a range of three to five years in
state prison; and for a fourth degree crime, within a range
of up to eighteen months.14 These sentencing ranges were
placed in the Criminal Code to guide judges' discretion
and avoid undue sentencing disparity.
Sentencing disparity occurs when two offenders who
have similar backgrounds and have committed similar
offenses receive dissimilar sentences. In order to further
guide judges' discretion, the Code created presumptive
sentences. A presumptive sentence means that, all things
being equal, it is presumed a judge will sentence an
offender to the presumptive term. For crimes of the first
degree, the presumptive sentence is fifteen years; for
crimes of the second degree it is seven years; for crimes
of third degree it is four years; and for crimes of the
fourth degree it is nine months. A judge can sentence an
offender to a term higher than the presumptive sentence
if aggravating factors, which are factors that make the
crime more serious, outweigh the mitigating factors.
Mitigating factors are factors that make the crime less
serious. The judge can sentence lower than the
presumptive sentence if the mitigating factors outweigh
the aggravating factors.
14
Any sentence of one year or greater is a sentence to state prison unless the county has a penitentiary or workhouse.
N.J.S.A. 2C:43-10(a) and (b).
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Under the Criminal Code, there is a presumption of
incarceration for persons sentenced for first and second-
degree crimes or for persons convicted for a second time
of theft of a motor vehicle or of the unlawful taking of a
motor vehicle. This means that it is presumed that the
judge will sentence an offender to state prison. In order
to overcome this presumption, which would allow the
judge to sentence the offender to probation or another
non- incarcerated term, the court, having regard for the
character and condition of the defendant, must find that
the defendant's imprisonment would be a serious
injustice which overrides the need to deter such conduct
by others. N.J.S.A. 2C:44-1(d).
There is no presumption of incarceration for crimes of
the third and fourth degrees. This means that the judge is
free to determine whether or not to sentence the offender
to incarceration. However, there is a presumption against
incarceration if the offender is a first time offender. This
presumption against incarceration does not apply when
the offender has been convicted of any of the third degree
crimes specified under N.J.S.A. 2C:44-1(e).
Once a judge decides to sentence an offender to prison,
the judge can also fix what is called a minimum parole
eligibility term15 if he or she is clearly convinced that the
aggravating factors substantially outweigh the mitigating
factors.16 A minimum parole eligibility term is a period
of time that the offender must serve before being eligible
for release on parole. A minimum parole eligibility term
can be up to one half of the maximum sentence. N.J.S.A.
2C:43-6(b).
There are a number of statutes which require that the
judge impose a mandatory17 minimum parole eligibility
term or other prescribed incarceration. Some examples
are: murder, persons convicted of possession of a
15
A minimum parole eligibility term means the offender is not eligible for parole until the minimum term is served.
16
These minimum terms are called discretionary minimum terms as they are solely within the discretion of the
judge.
17
The judge has no discretion whether to impose a minimum term.
firearm with intent to use it against the person of another,
or committing certain offenses while using or possessing
a firearm (Graves Act), death by automobile while under
the influence of alcohol or drugs, sex offenders (second
or subsequent offenses) and distributing drugs near or on
school property (School Zone).
The Criminal Code also gives sentencing judges the
discretion to extend the term of imprisonment of
offenders convicted of first, second, or third degree
offenses who are: (1) persistent offenders, (2)
professional criminals, (3) hired criminals, (4) second
offenders with a firearm, (5) convicted of a crime during
which they acted with ill will, hatred, or bias toward, and
with a purpose to intimidate, an individual or group of
individuals because of race, color, religion, sexual
orientation or ethnicity ("hate crimes"), (6) convicted of
committing certain crimes and during the course of
committing the crime used, or was in possession of, a
stolen motor vehicle, or (7) convicted of an aggravated
sexual assault, sexual assault, aggravated criminal sexual
contact or criminal sexual contact involving violence and
the victim was 16 years of age or less. In order to extend
the term, the prosecutor must make an application to the
court and the court must hold a hearing. At the hearing,
the State must prove that the defendant falls within the
enhancement criteria set forth in N.J.S.A. 2C:44-3.
i. Terms of Imprisonment
The following chart depicts the ordinary and
presumptive terms, as well as the extended term
ranges and presumptive extended term sentences,
for each degree of crime:
