On Nov. 12, 2019, the members of the Criminal Sentencing and Disposition Commission (CSDC) unanimously approved nine recommendations for criminal justice reform in New Jersey. Those recommendations are a critical starting point for addressing policy choices made since the passage of Title 2C — New Jersey’s Criminal Code — in 1979, choices that have led to mass incarceration and racial inequality in our prisons. Action on the CSDC’s recommendations would begin to address the lack of proportionality in New Jersey’s criminal justice system.
The CSDC is a legislative commission, created by statute in 2009 and left inactive until 2018 when Gov. Phil Murphy began the statutory appointment process completed by the leadership of both parties in the Legislature. Our members represent the views of judges, legislators, prosecutors, public defenders, criminal lawyers, and corrections and parole officials. I was appointed to the Commission by Gov. Murphy and named Chair by Senate President Stephen Sweeney and Assembly Speaker Craig Coughlin.
The CSDC’s annual report was presented to the public at a press conference held by Gov. Murphy on Nov. 14, when he, legislative leaders, cabinet members and others spoke of a broken system in need of repair. Indeed, the information presented in the report is stark. In 2016, the Sentencing Project reported that despite a recent decline, New Jersey had an imprisonment rate of 217 people per 100,000 residents. Most telling, of those imprisoned, the rate for blacks was 12.2 times that of whites, a rate higher than that of every other state in the nation. To quote from the annual report, “A fair justice system cannot tolerate such disparity.”
When the CSDC began its work in the fall of 2018, several themes began to emerge. We needed to learn how we got to where we are and to look at the possibilities for meaningful change. By statute, we are charged with examining New Jersey’s current system and developing recommendations in respect of available sentencing options, among other things. Our range of review is broad and includes consideration of additional sentencing alternatives, mandatory/determinate sentencing schemes, the current level of judicial discretion in sentencing, the parameters of supervised release, and alternative sanctions to incarceration. And, whatever we do, our recommendations must be based on accurate data that helps us to understand and eliminate racial disparities in the criminal justice system. In that regard, we are fortunate to have the help of the Rutgers Research Group, funded by Arnold Ventures, to aid our members in their review of the data that support the commission’s working hypotheses.
We do know that criminal sanctions have become more severe since 1979 and that racial disparities have increased under laws that require long periods of imprisonment before there is any consideration for parole. Judges today have little discretion to adjust mandatory periods of parole eligibility, even in cases where there are substantial mitigating factors. We know, also, that the school-zone drug laws have been disproportionately applied between urban and nonurban areas because of the population densities that surround urban schools, and we are learning more about whether long prison terms actually deter criminal conduct or improve public safety. Recent studies carried out by the American Bar Foundation report the devastating multigenerational impact on families and communities when parents are incarcerated for long periods. These are large and complex problems that have developed over time and will take time to resolve.
Mandatory minimum sentences
The CSDC’s first annual report contains nine recommendations, seven that eliminate or reduce mandatory minimum sentences, provide for assessment and reassessment in the sentencing of juveniles, and establish a new program for compassionate release in lieu of New Jersey’s existing medical parole statute, and two that address the reinvestment of cost-savings and, separately, funding for improvements to the Department of Corrections’ data collection capacity.
More specifically, the commission recommends that mandatory minimum sentences for nonviolent drug crimes and nonviolent property crimes be eliminated altogether and that the mandatory period of parole ineligibility be reduced from 85% to 50% for second-degree robbery and for second-degree burglary. Although there was some limited reform in 2016 vis-à-vis the school-zone laws, stringent punishment for minor drug crimes continues to be a factor in the racial disparities that follow from urban population distributions. Eliminating mandatory minimums would allow greater discretion in sentencing in these circumstances. Moreover, a historical review of both nonviolent drug and nonviolent property crimes tells us that existing periods of parole ineligibility are far more draconian than can be justified in a system of graduated punitive sanctions. Similarly, second-degree robbery and second-degree burglary do not belong on the list of crimes that may warrant more serious penalties. To ensure fairness for inmates currently serving sentences in prison for these crimes, recommendation four outlines a mechanism for retroactive relief unless, after notice of objection filed by the state and a hearing before the court, that relief is denied in whole or in part.
In explaining recommendations five and six, the CSDC discusses caselaw from the U.S. Supreme Court and the New Jersey Supreme Court recognizing that juvenile offenders are, as a group, less culpable and more amenable to rehabilitation than adults. These two recommendations call for the creation of a new mitigating factor that allows judges to consider the age of a juvenile as part of the weighing process at sentencing (#5) and an opportunity for resentencing or release based on a showing of maturity and rehabilitation. The CSDC recommends a nonexhaustive list of criteria that would demonstrate maturity and rehabilitation, a list that includes the circumstances of the crime committed, the juvenile’s family and home environment, the juvenile’s accomplishments while in prison, and the results of any mental health and other assessment/evaluations of the juvenile offender (#6).
Recommendation seven deals with early release, in this case a compassionate release program that allows inmates who are terminally ill or have a permanent physical incapacity to leave prison to be with their families or to live in an alternative care facility. This new program would substantially improve current law by establishing mechanisms for timely release and representation for those in need. Today, few people are released when they have a serious medical condition in part because they are already too ill to undertake the process for release, an irony that demonstrates a process that is not working.
The final two recommendations are illustrative of the need to develop programs that are fair and workable. When a juvenile must make a showing of rehabilitation under recommendation six, opportunities for education and vocational training must be provided. Over time, there will be cost-savings as prison populations are reduced; when those savings are dedicated to prison-based and community-based recidivism reduction programs, we improve public safety by preventing crimes and we save money by not sending people back to prison. The returns on investments in criminal justice reform are substantial but require an upfront payment that is often difficult to make. This is also true for investments in the Department of Corrections’ computer systems, investments that will enable the collection, tracking and analysis of data necessary for the development of fact-based criminal justice policies.
As the members of the CSDC considered potential reforms, we kept in mind two basic principles that should always provide the underpinnings for our work. In the First Annual Report, we explained that, “individuals convicted of crimes should spend no more time in prison than is necessary to achieve the purposes of sentencing; and …, to the extent that individuals must spend time in prison, that time should be used as productively as possible to encourage rehabilitation and prepare for their return to society.” The recommendations in the report, built on these principles, are an important initial step toward the elimination of mass incarceration and racial disparities in New Jersey’s criminal justice system.