To: Commission From: Uche Enwereuzor Re: No Early Release Act Date: September 10, 2012 MEMORANDUM Commission Staff monitors case law in the State to identify decisions in which the court calls for Legislative review or action. This memorandum results from one such case and seeks Commission authorization for a project modifying the No Early Release Act, N.J.S.A 2C:43-7.2 (NERA) to address the issue of whether a defendant who has been sentenced to multiple terms under that statute serves the periods of post-release parole supervision that are part of a NERA sentence concurrently rather than consecutively. State v. Friedman, 209 N.J. 102, 120 (2011), held that it is more consonant with the Legislature s objective to have NERA periods of parole supervision run consecutively in the case of an individual who is sentenced to [multiple] NERA sentences, rather than to have the periods of parole supervision run concurrently. Friedman stated that if an individual were to serve concurrent periods of parole supervision after serving multiple NERA custodial terms, the individual would be escaping the full consequence that was intended to be imposed by the NERA sentence, thus undermining the purpose of the [statute]. Id. In Friedman, subject to NERA, the defendant entered a plea of guilty to three counts of second-degree aggravated assault. The defendant agreed to the State recommended term of imprisonment not to exceed six years per count to be served consecutively. As part of the sentence, the trial court directed the defendant s periods of parole supervision be served consecutively. Id. at 113. Defendant thereafter appealed his sentence claiming that that the condition of consecutive parole supervision terms imposed made the sentence excessive. The Appellate Division held that the defendant s periods of parole supervision pursuant to N.J.S.A. 2C:43-7.2 must be served concurrently even though Defendant was sentenced to serve consecutive NERA terms of imprisonment. Id. The Appellate decision prompted the State to appeal to the Supreme Court of New Jersey urging that the imposition of consecutive sentences under N.J.S.A. 2C:43-7.2 required that the parole supervision periods that are a concomitant of a NERA sentence also run consecutively. Id. at 114. In response, the Supreme Court noted the [NERA] statute does not provide a specific directive as to whether periods of NERA parole supervision must be concurrent or consecutive for an offender who has been sentenced to consecutive custodial terms under NERA. Id. at 117. As a result, the Court relied on the language of the statute and the intent of the Legislature in holding that a defendant who has been sentenced to multiple terms under the NERA must serve his periods of parole supervision consecutively, not concurrently. Id. at 120. NERA s parole supervision provision is unique and radically different from non-nera offenses. State v. Freudenberger, 348 N.J.Super. 162, 168 (2003). For non-nera offenses, when an inmate is released on parole, the length of parole supervision extends to the point at which the sentence would expire. Id. at 169. With a NERA sentence, however, regardless of when the inmate is released, he or she is subject to a fixed five-year term of parole supervision for first-degree crimes and three years for second-degree crimes. Id. The legislation that adopted NERA included an amendment to the Parole Act, N.J.S.A. 30:4-123.51b(a), which No Early Release Act Memorandum September 10, 2012 Page 1
provides that a NERA inmate, upon release, shall, during the term of parole supervision, remain on release status in the community, in the legal custody of the Commissioner of the Department of Corrections, and shall be supervised by the State Parole Board. Id. The statutory framework of the No Early Release Act, N.J.S.A 2C:43-7.2 is as follows. N.J.S.A 2C:43-7.2 contains four subsections. Friedman, 209 N.J. at 116. Subsection (a) mandates that a court imposing a sentence under NERA shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole. Id. Subsection (b) sets forth the methodology for calculating an individual s parole eligibility date, and subsection (d) lists the offenses for which a trial court must impose NERA s terms upon an individual s conviction. Id. Subsection (c) deals with the parole supervision for an individual sentenced under NERA and provides: Notwithstanding any other provision of law to the contrary and in addition to any other sentence imposed, a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree, or a three-year term of parole supervision if the defendant is being sentenced for a crime of the second degree. The term of parole supervision shall commence upon the completion of the sentence of incarceration imposed by the court pursuant to subsection a. of this section unless the defendant is serving a sentence of incarceration for another crime at the time he completes the sentence of incarceration imposed pursuant to subsection a., in which case the term of parole supervision shall commence immediately upon the defendant's release from incarceration. During the term of parole supervision the defendant shall remain in the legal custody of the Commissioner of the Department of Corrections The consequence of this language is that an individual who is under parole supervision after having served 85% of his or her specified sentence in custody and then violates a condition of that parole may be returned to custody not only for the balance of the original custodial term, but for the remaining length of the parole supervisory period. Friedman, 209 N.J. at 116. The Supreme Court of New Jersey examined the legislative history of N.J.S.A. 2C:43-7.2, and determined that it did not contain any direct statements with respect to whether a defendant who has been sentenced to more than one consecutive term under the NERA should serve the periods of post release parole supervision that are part of a NERA sentence concurrently rather than consecutively. However, the Statement of the Senate Law and Public Safety Committee of April 24, 1996 clearly denotes that the legislative intent of the NERA was to increase prison time for offenders committing the most serious crimes in society. S. Law & Pub. Safety Comm., Statement to S. No. 855 (Apr. 24, 1996). As such, the Court held that it is more consonant with the Legislature s objective to protect the public from the risk posed by the release of violent offenders from incarceration to have NERA periods of parole supervision run consecutively in the case of an individual who is sentenced to consecutive NERA sentences, No Early Release Act Memorandum September 10, 2012 Page 2
rather than to have the periods of parole supervision run concurrently. Friedman, 209 N.J. at 120. Subsection (c) directs that a court imposing a sentence under NERA shall also impose the specified parole supervision period. Thus, a three-year or five year period of parole supervision is an integral part of a NERA sentence. Id. If an individual were to serve concurrent periods of parole supervision after completing consecutive custodial NERA terms, the individual would not serve the full NERA sentence, but only a portion of it. Id. Accordingly, a defendant convicted of more than one consecutive term under the NERA statute must serve the periods of parole supervision consecutively, not concurrently. Id. It is important that a defendant accused of a NERA offense knows the consequences of a conviction under the statute. In the interest of preventing further confusion regarding periods of parole supervision and allowing defendants charged with crimes that fall under the NERA statute to make knowledgeable and informed decisions in regards to their defense and potential plea deals, Staff seeks to adopt the decision in Freidman and modify the language of N.J.S.A. 2C:43-7.2 accordingly. Staff seeks guidance from the Commission regarding whether the Commission wishes to modify N.J.S.A. 2C:43-7.2. to clarify the language to reflect the Court s decision. Staff has prepared a draft of a potential revision of the statute. DRAFT N.J.S.A 2C:43-7.2. Eligibility for parole; persons convicted of certain violent crimes a. A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole. b. The minimum term required by subsection a. of this section shall be fixed as a part of every sentence of incarceration imposed upon every conviction of a crime enumerated in subsection d. of this section, whether the sentence of incarceration is determined pursuant to N.J.S.A. 2C:43-6, N.J.S.A. 2C:43-7, N.J.S.A. 2C:11-3 or any other provision of law, and shall be calculated based upon the sentence of incarceration actually imposed. The provisions of subsection a. of this section shall not be construed or applied to reduce the time that must be served before eligibility for parole by an inmate sentenced to a mandatory minimum period of incarceration. Solely for the purpose of calculating the minimum term of parole ineligibility pursuant to subsection a. of this section, a sentence of life imprisonment shall be deemed to be 75 years. c. Notwithstanding any other provision of law to the contrary and in addition to any other sentence imposed, a court imposing a minimum period of parole ineligibility of 85 percent of the sentence pursuant to this section shall also impose a five-year term of parole supervision if the defendant is being sentenced for a crime of the first degree, or a three-year term of parole supervision if the No Early Release Act Memorandum September 10, 2012 Page 3
defendant is being sentenced for a crime of the second degree. The term of parole supervision shall commence upon the completion of the sentence of incarceration imposed by the court pursuant to subsection a. of this section unless the defendant is serving a sentence of incarceration for another crime at the time he completes the sentence of incarceration imposed pursuant to subsection a., in which case the term of parole supervision shall commence immediately upon the defendant's release from incarceration. A defendant sentenced to consecutive custodial terms of incarceration pursuant to subsection a. of this section shall, upon release from incarceration, serve the periods of post-release parole supervision associated with each term consecutively, not concurrently. During the term of parole supervision the defendant shall remain in release status in the community in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole and shall be subject to the provisions and conditions of section 3 of P.L.1997, c. 117 (C.30:4-123.51b). d. The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or conspiracy to commit any of these crimes: (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) subsection b. of N.J.S.2C:12-1, aggravated assault; (5) subsection b. of section 1 of P.L. 1996, c. 14 (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) N.J.S.2C:18-2, burglary; (13) subsection a. of N.J.S.2C:20-5, extortion; No Early Release Act Memorandum September 10, 2012 Page 4
(14) subsection b. of section 1 of P.L.1997, c. 185 (C.2C:35-4.1), booby traps in manufacturing or distribution facilities; (15) N.J.S.2C:35-9, strict liability for drug induced deaths ; (16) section 2 of P.L.2002, c. 26 (C.2C:38-2), terrorism; (17) section 3 of P.L.2002, c. 26 (C.2C:38-3), producing or possessing chemical weapons, biological agents or nuclear or radiological devices; or (18) N.J.S.2C:41-2, racketeering, when it is a crime of the first degree. COMMENT The revision in N.J.S.A. 2C:43-7.2 clarifies that for a defendant sentenced to more than one crime that falls under the NERA statute, the subsequent periods of post-release parole supervision associated with each NERA conviction must be served consecutively. The revision incorporates the determination of the New Jersey Supreme Court in State v. Friedman, 209 N.J. 102, 120 (2011) on this issue dealing with the No Early Release Act, N.J.S.A. 2C:43-7.2. In Friedman, the Court held that after a defendant is released from incarceration after serving multiple terms for crimes that fall under the NERA statute, the defendant must serve his periods of parole supervision consecutively because it is more consonant with the Legislature s objective to protect the public from risk posed by the release of violent offenders from incarceration to have NERA periods of parole supervision run consecutively. See ibid. As such, the revised language incorporates the Court s interpretation of the statute, including some of the exact language used in the Court s decision. See id. at 105. No Early Release Act Memorandum September 10, 2012 Page 5