Criminal Justice Reform

Endnotes

  1. World Prison Brief: Highest to Lowest – Prison Population Totals. 
  2. Michelle Ye Hee Lee, “Does the United States really have 5 percent of the world’s population and one quarter of the world’s prisoners?” Washington Post, April 30, 2015.
  3. Peter Wagner and Alison Walsh, “States of Incarceration: The Global Context 2016,” Prison Policy Initiative,June 16, 2016. (New Jersey has a lower incarceration rate than only the United States, Turkmenistan, El Salvador, Cuba, Thailand, and the Russian Federation.)
  4. Christopher Wildeman, “Mass Incarceration,” Oxford Bibliographies, April 24, 2012.
  5. Christian Henrichson and Ruth Delaney “The Price of Prisons: What Incarceration Costs Taxpayers,” Vera Institute of Justice, January 2012. (Estimating the total cost to taxpayers of prisons at $1.4 billion annually.)
  6. Sentencing Project: State-by-State Data. (In 2015, there were 20,489 people in New Jersey prisons.)
  7. Leah Sakala, “Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity,” Prison Policy Initiative, May 28, 2014.
  8. Ashley Nellis, “The Color of Justice: Racial and Ethnic Disparity in State Prisons,” The Sentencing Project, 2016.
  9. “Black Disparities in Youth Incarceration," The Sentencing Project, September 12, 2017. "Latino Disparities in Youth Incarceration," The Sentencing Project, October 12, 2017.
  10. American Civil Liberties Union, “The War on Marijuana in Black and White,” June 2013, p 21, 165.
  11. Don Stemen, “The Prison Paradox: More Incarceration Will Not Make Us Safer,” Vera Institute Evidence Brief, July 2017.
  12. Oliver Roeder, Lauren-Brooke Eisen, and Julia Bowling: “What Caused The Crime Decline?” Brennan Center for Justice, 2015, p 4.
  13. Anthony A. Braga, Andrew V. Papachristos, and David M. Hureau, “The Effects of Hot Spots Policing on Crime: An Updated Systematic Review and Meta-Analysis,” Justice Quarterly, vol 31, issue 4, 2014, p 633 cited in George Mason University Center for Evidence-Based Crime Policy, “Hot Spots Policing.”
  14. U.S. Federal Bureau of Investigation: Uniform Crime Reporting Statistics.
  15. Nellis, supra note 8, Table 1. (In New Jersey Latinos are incarcerated at twice the rate of white people.)
  16. Todd Clear, “The Effects of High Imprisonment Rates on Communities,” Crime and Justice Volume 37 No 1 p 97-132, 2008.
  17. Ibid, p 118.
  18. New Jersey State Budget FY1987, showing Department of Corrections actual spending in FY1985 and New Jersey State Budget FY 2017, showing Department of Corrections actual spending in FY2015, D-61.
  19. Jon Schuppe, “With Trump in White House, Criminal Justice Reformers Will Look Elsewhere,” NBC News, November 10, 2016.
  20. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
  21. Rhiannon Poolaw, “OK votes in favor of criminal justice reform,” ABC News, November 9, 2016. (Describing successful ballot initiatives that reclassified many drug and property crimes from felonies to misdemeanors and funneled resources into rehabilitation and job and education programs); John Myers, “Proposition 57, Gov. Jerry Brown’s push to loosen prison parole rules, is approved by voters,” Los Angeles Times, November 8, 2016, (Explaining voter approval of a measure that required judges and not prosecutors to decide whether to charge juveniles as adults, expanded parole opportunities, and created new good-behavior credits for early release); Christopher Ingraham, “Marijuana wins big on election night,” Washington Post, November 8, 2016, (Discussing electoral victories for recreational marijuana in California, Massachusetts and Nevada and medical marijuana victories in several other states.)
  22. Lauren-Brooke Eisen and James Cullen, “Update Changes in State Imprisonment,” Brennan Center for Justice, 2015. (Note that this rate refers only to people in state prisons and does not count people in jails.)
  23. N.J.S.A. 2C:35-7 did not allow judges to waive periods of parole ineligibility until it was amended in 2010. Now, “the court may waive or reduce the minimum term of parole ineligibility required under” the law based on a consideration of a number of factors.
  24. New Jersey Uniform Crime Report, “Section Three: State & County Arrest Summary,” 2015, p 75.
  25. New Jersey Uniform Crime Report, “Section Three: State & County Arrest Summary,” 2015, p 70.
  26. “Marijuana Arrests Have Serious Consequences,” New Jersey United for Marijuana Reform.
  27. N.J.S.A. 2C:43-8.
  28. N.J.S.A. 2C:51-2.
  29. N.J.S.A. 2C:35-16.
  30. N.J.S.A. 2C:43-3(c) ($1000 fine); N.J.S.A. 2C:35-15 (Mandatory $500 Drug Enforcement Demand Reduction penalty.) 
  31. Attorney General Law Enforcement Directive 2007-3.
  32. Jasmine C. Lee, Rudy Omri, Julia Preston, “What Are Sanctuary Cities?” The New York Times, February 6, 2017. 
  33. Police Foundation, “The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties,” April 2009. 
  34. American Civil Liberties Union of New Jersey, “Selective Policing Racially Disparate Enforcement of Low-Level Offenses in New Jersey,” December 2015, p 13. 
  35. Ibid.
  36. Color of Change and American Civil Liberties Union, “Selling Off Our Freedom,” May 2017, p 2.
  37. N.J.S.A. 2A:162-12 (2013) (Limiting methods of posting bail in cases with bail restrictions.)
  38. New Jersey Judiciary Court System, “Report of the Joint Committee on Criminal Justice,” March 2014, p 69.
  39. Marie VanNostrand, “New Jersey Jail Population Analysis,” Provided by Luminosity in Partnership with the Drug Policy Alliance, March 2013, p 14.
  40. 3 Days Count, “Commonsense Pretrial,” 2017.
  41. Vera Institute of Justice, “The Human Toll of Jail Project: More on Incarceration’s Impact on Kids and Families.”
  42. New Jersey Judiciary Court System, “Report of the Joint Committee on Criminal Justice,” March 10, 2014, p 12.
  43. VanNostrand, supra, note 39. 
  44. Marie VanNostrand, “New Jersey Jail Population Analysis,” Provided by Luminosity in Partnership with the Drug Policy Alliance, March 2013.
  45. N.J.S.A. 2A:162-15 et. seq. 
  46. There is also reason to believe that reducing the pretrial detention population might have an impact on the post-trial incarceration rate. New Jersey’s dramatic success with the Juvenile Detention Alternatives Initiative (JDAI) can serve as a model: in counties in which JDAI was active the average daily population of the detention centers (the juvenile equivalent of jails) fell from 813.5 in 2003 to 368 in 2011, a reduction of 54.8%. At the same time, the number of children in residential placement (the juvenile equivalent of being sentenced to prison) in New Jersey decreased from 960 to 615, a reduction of 35%. Simply put, the fewer kids who appeared before a sentencing judge already in custody, the fewer kids who ultimately wound up with custodial sentences. There are many reasons to doubt that the tremendous success associated with reforming juvenile detention could result in corresponding achievement in the context of adult pretrial reform. But some reduction in the prison population is nevertheless possible. State of New Jersey, Office of the Attorney General, Juvenile Justice Commission, “New Jersey Juvenile Detention Alternatives Initiative (JDAI) Annual Data Report,” February 2013.
  47. New Jersey State Judiciary Court System: Nonsentenced Pretrial Jail Population, Chart D.
  48. See United States v. Salerno, 481 U.S.739 (1987). 
  49. N.J.S.A. 2A:162-19.
  50. N.J.S.A. 2A:162-18b; N.J.S.A. 2A:162-19b.
  51. “Report Of The Supreme Court Committee On Criminal Practice On Recommended Court Rules To Implement The Bail Reform Law: Part 2 Pretrial Detention and Speedy Trial,” May 12, 2016, p 87-167 (Noting support from judges, prosecutors, and other lawyers for a legislative expansion to include Aggravated Manslaughter, Manslaughter, Aggravated Sexual Assault, Sexual Assault, Robbery, and Carjacking as predicate crimes supporting a rebuttable presumption of detention.)
  52. Terrence T. McDonald, “Bail reform plan pits lawmakers against civil liberties advocates,” The Jersey Journal, April 18, 2017. 
  53. Indeed, such pressure is already being brought to bear. Katherine Landergan, “Counties To Take Legal Action Against Bail Reform,” Politico, October 4, 2016.
  54. Michelle Caffrey, “N.J. bail reform could help county budgets, bring changes to corrections services,” South Jersey Times, August 4, 2014. (Gloucester County Administrator anticipating saving from a reduction of the inmate population of between 15% and 20%); Spencer Kent, “Bail reform legislation in N.J. would slash Cumberland, Salem jail populations,” South Jersey Times, July 14, 2014. (Cumberland County Jail warden anticipating a population reduction of up to 40%, Salem County Jail Warden calling CJRA “more cost efficient” and anticipating 20% population reduction, and Gloucester County Freeholder explaining that he “think[s] it will greatly reduce costs”); Michelle Brunetti Post, “Cape May County to build new $37 million jail,” The Press of Atlantic City, May 8, 2016. (Cape May County Jail Warden anticipating 10% to 20% reduction in jail population. While large population reductions allow for tremendous costs savings because jails can close units or even the entire facility, even incremental population reductions provide cost savings in the form of reduced food and medical costs.)
  55. N.J.S.A. 2A:162-22.
  56. New Jersey Judiciary Court System, “Report of the Joint Committee on Criminal Justice,” March 2014, p 4.
  57. Because certain time is “excludable,” even limits that appear absolute are subject to extension. The Rules of Court, for example, treat even the filing of a motion as excludable time that is attributable to a defendant. R. 3:25-4(d)(2)(C).
  58. N.J.S.A. 2A:162-25c 
  59. Council of State Governments Justice Center, “Risk and Needs Assessment and Race in the Criminal Justice System,” May 31, 2016.
  60. Julia Angwin and Jeff Larson, “New research suggests racial bias in criminal courts may be inevitable,” Business Insider, January 3, 2017.
  61. The New Jersey Commission to Review Criminal Sentencing, “Statutory Changes Under the NJ Code of Criminal Justice: 1979 to the Present,” September 2007. 
  62. Vincent Schiraldi and Jason Ziedenberg, “Costs and Benefits? The Impact of Drug Imprisonment in New Jersey,” Prison Policy Institute, October 2003, p 14. 
  63. New Jersey Department of Corrections: Offenders in New Jersey Correctional Institutions On January 4, 2016, by Mandatory Minimum Term. 
  64. State of New Jersey Department of Corrections, Offender Statistics, Offenders by Mandatory Minimum Term.
  65. Statutory Changes, supra, note 61, p 25.
  66. New Jersey State Parole Board, “The Parole Book: A Handbook on Parole Procedures for Adult and Young Adult Inmates,” ed. 5, 2012, p 6.
  67. Eric Holder, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates, San Francisco, August 12, 2013.
  68. Michael Tonry, Sentencing Matters. Oxford University Press, 1996, p 135.
  69. Anthony Kennedy, William French Smith Memorial Lecture, Pepperdine University, February 3, 2010.
  70. Stephen Breyer, “Federal Sentencing Guidelines Revisited,” Federal Sentencing Reporter, vol 11, 1999, p 180.
  71. Marc Levin, “What Conservatives Are Saying About Criminal Justice Reform,” Texas Public Policy Foundation, January 2010.
  72. Written Statement of the American Civil Liberties Union, Before the United States Senate Judiciary Committee, Hearing on “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences,” September 18, 2013.
  73. New Jersey Commission to Review Criminal Sentencing, “Statutory Changes to Sentencing Under the Code of Criminal Justice: 1979 to the Present,” September 2007, p 27, 28.
  74. Daniel O’Keefe, “New state law reduces drug penalties in school zones,” South Bergenite, January 21, 2010, Noting reduction in mandatory minimum for violations of N.J.S.A. 2C:35-7; P.L. 2007, c. 341 (effective January 13, 2008, expanding the reach of the Graves Act to include unlawful possession of a weapon); P.L. 2013, c. 113 (effective August 8, 2013, increasing the Graves Act mandatory minimum from 36 months to 42 months.) 
  75. N.J.S.A. 2C:11-3 (Providing a minimum term of 30 years, or more).
  76. N.J.S.A. 2C:43-7.2 (Proving that defendants serve at least 85% of any sentence imposed for a crime of violence).
  77. N.J.S.A. 2C:43-6c (Providing for a minimum term of 42 months).
  78. N.J.S.A. 2C:35-3 (25 years to life for a conviction as a leader of a narcotics network); N.J.S.A. 2C:35-4 (One-third to one-half of the sentence imposed for maintaining a drug production facility); N.J.S.A. 2C:35-6 (One-third to one-half of the sentence imposed or five years, whichever is greater, for employing a juvenile); N.J.S.A. 2C:35-5 (One-third to one-half of the sentence imposed for first-degree possession with intent to distribute).
  79. N.J.S.A. 2C:43-6.5 (Providing for mandatory minimums, as follows: for a crime of the fourth degree, one year; for a crime of the third degree, two years; for a crime of the second degree, five years; and for a crime of the first degree, 10 years).
  80. N.J.S.A. 39:4-50(a)(3) (Proving for 180-day mandatory minimum period of incarceration for third or subsequent convictions for driving while intoxicated). 
  81. State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000) (“the basic sentencing issue is always the real time defendant must serve, and we have always recognized that real time is the realistic and practical measure of the punishment imposed”) 
  82. Paula M. Ditton and Doris James Wilson, “Truth in Sentencing in State Prisons,” Bureau of Justice Statistics Special Report, January 1999.
  83. Statutory Changes, supra, note 61, p 23.
  84. Statutory Changes, supra, note 61, p 27, 29 (Noting 50 upgrades and no downgrades of crimes).
  85. P.L. 2003, c. 265 (Effective January 14, 2004).
  86. P.L. 2009, c. 81 (Effective July 2, 2009).
  87. N.J.S.A. 2C:48-2b.
  88. Bruce Stout and Ben Barlyn, “The Human and Fiscal Toll of America’s Drug War: One State’s Experience,” Albany Government Law Review, vol 6, 2013, p 522-548.
  89. New Jersey State Parole Board, “Parole Eligibility Basic Calculations,” February 2002, Appendix A. (In year 1, defendants earn 72 days of commutation credit; in year 2, 84 days; in years 3-7, 96 days; in years 8-10, 120 days.)
  90. Alison Lawrence, “Cutting Corrections Costs: Earned Time Policies for State Prisoners,” National Conference of State Legislatures, July 2009, p 1-2. 
  91. Ibid, p 14. (Explaining that program participation credits can amount to 15 days per month for above average participation, 10 days per month for average participation, and 5 days per month for below average participation.)
  92. Michael O’Hear: “Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release,” Marquette Law Review, vol 98, 2014, p 487-530. (Citing Michael O’Hear: “Solving the Good-Time Puzzle: Why Following Rules Should Get You Out of Prison Early,” Wisconsin Law Review, vol 2012, December 6, 2011, p 195, 214-22.)
  93. State Of New York Department Of Correctional Services, “Analysis of Return Rates of The Inmate College Program Participants,” August 1991. (Finding lower recidivism rates for male prisoners who took college courses.)
  94. N.J.S.A. 30:4-123.53.
  95. New Jersey State Parole Board: “2004 Annual Report,” April 2005. (The parole rate is calculated by diving the number of parole grants by the total number of hearings scheduled initial hearings, referrals to panels, scheduled two member hearings, and administrative reviews.) New Jersey State Parole Board: “2015 Annual Report,” April 2016.
  96. An opaque parole process is not unique to New Jersey. Beth Schwartzapfel, “How parole boards keep prisoners in the dark and behind bars,” Washington Post, July 11, 2015. 
  97. Rule 3:21-8.
  98. Richardson v. Nickolopoulos, 110 N.J. 241, 249 n.2 (1988). (Even under a risk-based system, defendants who are detained should not be subjected to more onerous ultimate sentences.) 
  99. Parole Book, supra, note 66, p 6-7. 
  100. Parole Book, supra, note 66, p 35.
  101. Jeremy Travis, et al. “A Portrait of Prisoner Reentry in New Jersey”, Urban Institute Justice Policy Center, November 2003.
  102. Editorial: Smart Answers to Recidivism, New York Times, Dec. 24, 2009.
  103. See, e.g., New Jersey Reentry Corporation; Volunteer Lawyers for Justice
  104. 24 C.F.R. § 960.204 (federal rule requiring public housing authorities to deny admission to individuals “evicted for drug-related criminal activity” in the last three years and to households if “any household member is currently engaging in illegal use of a drug” or “a household member’s illegal use or pattern of illegal use of a drug may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents”); 24 C.F.R. § 960.203(c)(3) (federal rule allowing public housing authorities to deny admission based on a “history of criminal activity involving . . . criminal acts which would adversely affect the health, safety or welfare of other tenants”).
  105. Jocelyn Fontaine and Jennifer Biess, “Housing as a Platform for Formerly Incarcerated Persons,” The Urban Institute, April 2012. (Describing how stable housing can lead to success in overcoming other barriers to reentry and ease the reintegration process.)
  106. N.J.S.A. 2C:51-2.
  107. N.J.S.A. 40A:14-9.
  108. N.J.S.A. 17:22B-6.
  109. N.J.S.A. 2C:35-16 (Requiring a driver’s license suspension of at least six months and up to two years for CDS offenses).
  110. N.J.S.A. 44:10-48 (Requiring individuals convicted of drug use or possession to be enrolled in treatment in order to receive cash benefits under the General Assistance program, and prohibiting individuals convicted of drug distribution offenses from receiving such benefits).
  111. Jenny Roberts: “Expunging America’s Rap Sheet in the Information Age,” Wisconsin Law Review, vol 2015, p 321, 330–31. “[A]llowing an individual to fully participate in society after successfully completing a sentence for a crime is critical to racial and economic justice, public safety, and individual and collective dignity.”
  112. N.J.S.A. 2C:52-2(c) (convictions for “sale or distribution of a controlled dangerous substance or possession thereof with intent to sell” barred from expungement with exceptions for small amounts of marijuana or hashish and third- and fourth-degree convictions in which “the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction”). 
  113. N.J.S.A. 2C:52-2(a), 52-3(b).
  114. Ark. Code §§ 16-90-1405, 1406 (5 years for a felony, 60 days for a misdemeanor); Ky. Rev. Stat. §§ 431.073(2), 431.078(2) (5 years for felonies and misdemeanors); Minn. Stat. § 609A.02 (5 years for a felony, 2 years for a misdemeanor). 
  115. An individual seeking an expungement must, often without an attorney, consult the relevant code provisions to determine if he is eligible, N.J.S.A. 2C:52-2 to 52-6; gather information related to his or her conviction, which will often require consulting court records, N.J.S.A. 2C:52-7; prepare a petition with the required information, file it, and pay the filing fee of $75, N.J.S.A. 2C:52-29; serve up to ten different law enforcement agencies with a copy of the petition and other materials within five days of filing, N.J.S.A. 2C:52-10; attend a hearing on the petition, N.J.S.A. 2C:52-9; and, if the petition is granted, serve it on any law enforcement agencies that may possess records to be expunged. New Jersey Courts: “How to Expunge Your Criminal and/or Juvenile Record,” November 2012. (34-page official publication containing a guide to expungement process and sample forms.)
  116. N.J.S.A. 2C:52-6(a) (Nonconviction records “shall” be expunged “upon receipt of an application”).
  117. Maggie Clark, Governors’ Pardons Are Becoming a Rarity, Governing Magazine, February 8, 2013.
  118. Christopher Uggen, Ryan Larson, and Sarah Shannon, “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016,” The Sentencing Project, October 6, 2016.
  119. Ibid. 

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