Facing Criminal Charges in New Jersey Can Lead to Jail Time Fears. Knowing when a Presumption of Incarceration Applies is Critical for Your Case.
If you or a loved one are facing criminal charges in New Jersey, you are likely grappling with many impending uncertainties, including the likelihood of being sentenced to serve jail time. For most individuals, the prospect of going to jail is a worse-case scenario. In New Jersey, laws surrounding incarceration are complex. Navigating the law and justice system can be overwhelming, but gaining clarity around the possibility of future incarceration is key. Remember that knowledge, understanding, and expert legal guidance will be critical to seeing you or your loved one through this stressful time.
Exploring Sentencing Presumptions in NJ Criminal Statutes
In New Jersey, N.J.S.A. 2C:44-1(e) sets forth what types of crimes and circumstances of their commission are subject to a presumption of incarceration, in which a sentence involving jail time will be presumed if the defendant is convicted, or a presumption of non-incarceration, in which it is presumed that the defendant will not serve jail time if they are convicted for the offense.
In most situations, it is safe to assume that while a presumption of incarceration could be overcome, if you are convicted of a charge that carries a presumption of incarceration, you will likely be sentenced to jail time. While it is always important to present a strong case and explore all avenues to avoid a conviction, the stakes are even higher when you are facing a charge with a presumption of incarceration.
Navigating New Jersey Serious Offenses Subject to a Presumption of Incarceration
All first degree and second degree indictable offenses are subject to a presumption of incarceration. These offenses include but are not limited to murder, manslaughter, aggravated sexual assault, kidnapping, unlawful possession of a firearm, and aggravated arson. These rules are not just suggestions for judges to follow; they are legal presumptions. This means that unless evidence exists to overcome the presumption, then the court must sentence the defendant accordingly. A presumption of incarceration could be overcome if the evidence demonstrates that imprisonment of the defendant would result in “serious injustice.”
New Jersey’s Approach to Non-Incarceration Presumptions
On the flip side, there are charges that carry a presumption of non-incarceration in New Jersey. The purpose of this presumption is to reduce the stress on New Jersey prison systems by prioritizing incarceration for those crimes for which imprisonment is necessary for punishment, rehabilitation, and individual and societal deterrence. A presumption of non-incarceration applies to first time offenders of most third and fourth degree indictable offenses, with the exception of a few enumerated exemptions, as well as disorderly persons offenses and petty disorderly persons offenses. Some of the New Jersey crimes that are subject to a presumption of non-incarceration include distribution of less than one ounce of marijuana, shoplifting merchandise with a value less than $500, and resisting arrest.
However, this presumption does not apply to several enumerated third degree and fourth degree offenses including third or fourth degree gang criminality, eluding an officer, strict liability vehicular homicide, and drug distribution to a minor or a pregnant female.
A presumption of non-incarceration may be overcome if the court finds that, due to the circumstances relating to the commission of the crime, as well as the defendant’s history and character, imprisonment is necessary in order to protect the public.
Available Choices With a Presumption Against Incarceration
If a presumption of non-incarceration applies, alternative sentencing options may include fines, probation, and community service. Prior to a criminal trial, a defendant might be eligible to participate in Pretrial Intervention (PTI), which could allow them to avoid a conviction altogether. In New Jersey, PTI is a diversionary program available to certain first time offenders. As part of PTI, a defendant may be required to maintain employment, have regular meetings with their probation officer, submit to regular drug testing, attend counseling, and perform community service.
Is a Sentencing Presumption the Same as a Presumption of Detention in NJ?
It is important to note that these legal provisions for presumption of incarceration and non-incarceration are different from the assessment of whether a defendant should be detained pending trial. Under New Jersey’s bail reform law that went into effect in 2018, there are several different factors that are considered in a Public Safety Assessment (PSA) prior to a detention hearing, which takes place after a defendant’s arraignment and before a criminal trial. The application of presumptions of incarceration vs. non-incarceration apply when a guilty verdict has been issued following the completion of a criminal trial.
Call our Criminal Lawyers to Overcome the Presumption for Your Morris County Charges
It is very difficult to achieve favorable outcomes without the advocacy and skill of an experienced criminal defense lawyer. Effective negotiation with the prosecution about your case is key. Not only can the prosecuting attorney consider your request for PTI, but you may be able to negotiate for downgraded charges or, better yet, dismissal of the charges against you.
If you are initially charged with a first degree or second degree offense that is downgraded to a third degree or fourth degree charge, subject to a presumption of non-incarceration, you can effectively move from a position of almost certainly facing jail time to not facing any jail time, unless the presumption is overcome.
If you or a loved one have been charged with a criminal offense in Florham Park, Morristown, Chester, Chatham, Jefferson, Boonton, Harding, Parsippany, and throughout Morris County, New Jersey, feel free to reach out to us today at (908)-336-5008 for a complimentary consultation. Our free consultations are accessible around the clock to cater to your needs effectively.
