SENATE BILL NO. 3658

 

 

To the Senate:

Pursuant to Article V, Section I, Paragraph 14 of the New Jersey Constitution, I herewith return Senate Bill No. 3658 with my recommendations for reconsideration.

Senate Bill No. 3658 is identical to Senate Bill No. 3456, which I conditionally vetoed on April 19, 2021.  I am conditionally vetoing Senate Bill No. 3658 for the same reasons that I expressed two months ago.  Below is the message to the Senate that I delivered on April 19, 2021:

“When I ran for this office, I noted that New Jersey had the largest racial disparity in incarceration rates in the nation, with Black residents being incarcerated at 12 times the rate of white residents.  This shocking discrepancy is the result of decades of failed criminal justice policies, including the War on Drugs, that have devastated communities of color.  I emphasized that this disparate treatment is not only fundamentally unjust, but also undermines the trust between residents of color and law enforcement that is critical to public safety in our communities.

In my first month as Governor, I announced the convening of the Criminal Sentencing and Disposition Commission (“Commission”), which was established through a law signed by Governor Corzine in 2009.  By statute, the Commission includes representatives or designees of prosecutors and law enforcement, the Attorney General’s Office, the Public Defender’s Office, and the Judiciary, as well as public members appointed by the Governor and the Legislature.  Under the law, the Commission is specifically tasked with examining racial disparities in our criminal sentencing laws. 

Despite the urgency of this mission, under my predecessor, the Commission was never constituted and never met.  I appointed Deborah Poritz, the former Chief Justice of the New Jersey Supreme Court, and Jiles Ship, the former President of the National Organization of Black Law Enforcement Executives, to serve on the Commission.  During the following months, the Senate President, Assembly Speaker, Senate Minority Leader, and Assembly Minority Leader, appointed public members as well.

The Commission first met on June 22, 2018.  Under the leadership of Chief Justice Poritz, who was elected as Chair, the Commission spent the next year and a half conducting a comprehensive review of our criminal sentencing laws.  They held many hearings and heard from stakeholders representing all different perspectives, including advocacy organizations, victims’ rights organizations, criminal justice scholars, faith leaders, and individuals who have personally experienced the criminal justice system. 

After these deliberations and hearings, in November 2019, the Commission released its first report.  Notably, all of the recommendations were endorsed unanimously, meaning they had support from members appointed by the Governor and the Legislature, representing prosecutors, law enforcement, the Attorney General’s Office, the Public Defender’s Office, legislators, and the Judiciary.  The report’s most significant recommendation was the elimination of mandatory minimum sentences for non-violent drug and property crimes — both prospectively and for those who are currently serving sentences for these offenses.  Two days after the release of the report, I stood with Senate President Sweeney and Speaker Coughlin at a press conference, and we together pledged to swiftly enact the unanimous recommendations contained in the report.

That was over a year ago.  A number of bills were drafted that implemented the recommendations of the Commission and have moved through the legislative process since then.  Several of these bills, including legislation creating a mitigating sentencing factor for youth, legislation allowing for the resentencing of certain juveniles, and legislation establishing a compassionate release program, made it to my desk, and I was proud to sign them into law.  These were notable accomplishments that will make our criminal justice system more compassionate and more equitable.

However, the most significant recommendation of the report — the elimination of mandatory minimums for non-violent drug and property crimes — was the last to make it to my desk.  The reason for the delay was that in August 2020, after the bill had passed the Assembly, an amendment was made to the Senate version that would eliminate the mandatory minimum sentence for the crime of official misconduct.  This provision had neither been studied nor recommended by the Commission.  When the amended version of the bill made it through the full Senate, different versions of the bill had passed both houses.

In February of this year, a new version of the bill was introduced in both houses that prospectively eliminates mandatory minimums for crimes determined by the Legislature to be of a non‑violent nature.  In addition to official misconduct, the bill encompasses a number of offenses that, again, were neither studied nor identified by the Commission as being useful tools in reducing racial disparities in incarceration, including other offenses dealing with misconduct committed by public employees and public officials. 

Over the last two months, I have heard from a number of passionate voices on this issue.  Some have urged me to sign the bill and have argued that the elimination of mandatory minimums associated with non-violent drug offenses should outweigh concerns surrounding the other provisions.  Others have implored me to veto the bill, arguing that mandatory minimums associated with crimes touching upon public employment are key deterrents to public corruption.  I appreciate that arguments on both sides of this issue have been made in good faith, and I have weighed the merits of these arguments seriously and with an open mind.

After much deliberation, I have determined that I cannot sign this bill, which goes far beyond the Commission’s recommendations.  I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests.  I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.

I am also mindful of the fact that I am taking action on this bill in the middle of the trial for George Floyd’s murder, and days after the deaths of Daunte Wright and Adam Toledo.  [BL(1] The vast majority of our law enforcement officers are heroes who risk their lives every day to keep their fellow residents safe.  But there is a small minority of officers who abuse their position, either by committing violence against those they have pledged to serve, or by using their authority to enrich themselves.  Not only do these officers violate the public trust, but they unjustly taint the reputation of their heroic profession.

New Jersey’s robust penalties against public corruption not only serve as a strong deterrent to misconduct, but are often also the most powerful tools that our prosecutors have to hold bad actors in law enforcement accountable.  For example, after the horrifying incident on January 11 at the Edna Mahan Correctional Facility, eight corrections officers have been criminally charged.  For each officer, the charge with the greatest penalty is second-degree official misconduct.  Signing this bill into law would mean that these eight individuals would not necessarily face significant prison sentences even if convicted for their alleged crimes.  At a time when our nation is reckoning with our policing practices, weakening the penalties used to address police misconduct would send exactly the wrong message.

In addition to my policy concerns, I am troubled by the prospect of amending our sentencing laws for a series of crimes that have not been fully considered by the Commission.  I constituted the Commission in order to establish an independent and apolitical body comprised of individuals with diverse and varied expertise on our criminal sentencing laws.  The Commission conducted its hearings in the light of day, with the benefit of stakeholder input, expert testimony, research data, and public dialogue.  This rigorous process resulted in recommendations that come with instant legitimacy and broad-based support across the criminal justice system.  I am concerned that some of the proposed changes in the bill on my desk, particularly those surrounding our public corruption laws, will lack that legitimacy and support.

In addition to all of these reasons, the bill on my desk falls short because it fails to offer relief to individuals currently serving mandatory minimum sentences for non-violent drug offenses.  The Commission was very clear that the elimination of mandatory minimums for non-violent drug offenses should be both prospective and retroactive.

My decision not to sign Senate Bill No. 3456 is made easier by the Attorney General’s decision to issue a directive pursuant to his supervisory authority that will allow the sentences of those currently incarcerated for non-violent drug offenses to be revised to what they would have been absent mandatory minimums, meaning hundreds and potentially thousands of non-violent offenders will face shorter prison terms.  I am advised that the directive will also take mandatory minimum sentences off the table for future non-violent drug offenses.  As a result of the Attorney General’s actions, non-violent drug offenders who are in prison now or who will face the prospect of prison in the future will receive the relief envisioned by the Commission – sentencing without being subjected to a mandatory term of imprisonment without parole eligibility.  This relief far exceeds that provided by Senate Bill No. 3456, which only applies to those who have yet to be sentenced. 

I am cognizant of the fact that Attorney General directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute.  I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.  And should the Commission recommend changes to sentencing laws for additional crimes, those recommendations will be entitled to considerable weight.”

     Therefore, I herewith return Senate Bill No. 3658 and recommend that it be amended as follows:

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                                     “16. (New section) a.  The Supreme Court may issue an order to retroactively modify the judgment of conviction, in accordance with the provisions of subsection m. of section 7 of P.L.1979, c.441 (C.30:4-123.51), to rescind the mandatory minimum period of parole ineligibility of any inmate convicted prior to, and who is in the custody of the Department of Corrections on, the effective date of P.L.    , c.   (C.        ) (pending before the Legislature as this bill) who was sentenced in accordance with:

 

(1)  leader of a cargo theft network pursuant to subsection e. of section 4 of P.L.2013, c.58 (C.2C:20-2.4);

                                     (2)  crimes involving theft from a cargo carrier pursuant to subsection c. of section 6 of P.L.2013, c.58 (C.2C:20-2.6);

 

                                     (3)  shoplifting pursuant to paragraph (4) of subsection c. of N.J.S.2C:20-11;

 

                                     (4)  computer criminal activity pursuant to subsections g. or h. of section 4 of P.L.1984, c.184 (C.2C:20-25);

 

                                     (5) wrongful access, disclosure of information pursuant to subsection b. of section 10 of P.L.1984, c.184 (C.2C:20-31);

 

                                     (6)  leader of narcotics trafficking network pursuant to N.J.S.2C:35-3;

 

                                     (7)  maintaining or operating a controlled dangerous substance production facility pursuant to N.J.S.2C:35-4;

 

                                     (8)  manufacturing, distributing, or dispensing a controlled dangerous substance or controlled substance analog pursuant to N.J.S.2C:35-5;

 


 

                                     (9)  employing a juvenile in a drug distribution scheme pursuant to N.J.S.2C:35-6;

 

                                     (10) distribution on or within 1,000 feet of school property pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7);

 

                                     (11) distribution to persons under age 18 pursuant to section 1 of N.J.S.2C:35-8; or

 

                                     (12) a mandatory term for being a repeat drug offender pursuant to subsection f. of N.J.S.2C:43-6 unless the prosecutor objects in the case of an inmate so sentenced in accordance with any of those paragraphs.

 

b.   The Commissioner of Corrections shall identify, from a list of defendants sentenced for the enumerated crimes provided by the Administrative Office of the Courts, those inmates in the custody of the Department of Corrections who are eligible for resentencing under an order issued pursuant to subsection a. of this section, and provide a list of eligible inmates to the Supreme Court, the Attorney General and county prosecutors.  No later than 60 days after receipt of the list, the State shall determine whether there is a basis to file an objection in any inmate’s case.

 

                                     c.   A prosecutor shall not file an objection to the retroactive modification of an inmate’s judgment of conviction pursuant to this section without the prior approval of the Attorney General.

 

                                     d.   The Attorney General shall provide to the Administrative Director of the Courts and to the Department of Corrections notice as to the identity of each inmate for whom a determination is made to file an objection.  The Department of Corrections shall promptly notify the inmate and the inmate’s attorney or, if the inmate does not have an attorney, the Public Defender of the determination to file an objection with respect to that individual.

 

                                     e.   (1) In any case in which a determination is made to file an objection to the retroactive modification of a judgment of conviction for an inmate, the prosecutor shall file any such objection with the Superior Court in the county where the conviction occurred.  Any such objection shall be filed no later than 60 days following receipt of the list from the Department of Corrections pursuant to subsection c. of this section, or within 30 days of providing notice of a determination to file an objection pursuant to subsection e. of this section, whichever date is later.

 

                                     (2)  For those eligible inmates as to whom the prosecutor does not file an objection, the court may order the retroactive modification of those inmates’ judgments of conviction in accordance with the provisions of subsection m. of section 7 of P.L.1979, c.441 (C.30:4-123.51), without conducting a hearing.

 

                                     f.   In the event the prosecutor files an objection, the inmate’s judgment of conviction shall be retroactively modified in accordance with the provisions of subsection m. of section 7 of P.L.1979, c.441 (C.30:4-123.51) unless the court, after a hearing, finds by clear and convincing evidence that rescinding the term of parole ineligibility imposed upon the inmate would likely pose a substantial risk to public safety or that the aggravating factors associated with rescinding or reducing, as the case may be, the term of parole ineligibility substantially outweigh the mitigating factors of doing so.

 

                                     g.   A court that finds that an inmate’s sentence applies to subsection m. of section 7 of P.L.1979, c.441 (C.30:4-123.51) may issue an order denying the retroactive modification of the judgment of conviction, or in the alternative the court may modify the judgment of conviction by rescinding the mandatory period of parole ineligibility and sentencing the inmate to a period of discretionary parole ineligibility.

 


 

                                     h.   Any period of parole ineligibility imposed pursuant to subsection f. of this section shall not result in a period of parole ineligibility in excess of the period that otherwise would have applied under the judgment of conviction prior to modification.

 

                                     i.   An inmate who is afforded a hearing pursuant to subsection f, of this section shall be represented by the Public Defender, unless the inmate retains other counsel.

 

                                     j.   Nothing in this section shall be construed to authorize the court to modify or in any way affect any mandatory minimum term of parole ineligibility imposed pursuant to a law other than those subject to subsection m. of section 7 of P.L.1979, c.441 (C.30:4-123.51).

 

                                     17.  Section 7 of P.L.1979, c.441 (C.30:4-123.51) is amended to read as follows:

                                    

                                        7.  a. Each adult inmate sentenced to a term of incarceration in a county penal institution, or to a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or one-third of the sentence imposed where no mandatory minimum term has been imposed less commutation time for good behavior pursuant to N.J.S.2A:164-24 or R.S.30:4-140 and credits for diligent application to work and other institutional assignments pursuant to P.L.1972, c.115 (C.30:8-28.1 et seq.) or R.S.30:4-92.  Consistent with the provisions of the New Jersey Code of Criminal Justice (N.J.S.2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term.

 

                                     b.   Each adult inmate sentenced to a term of life imprisonment shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or 25 years where no mandatory minimum term has been imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments.  If an inmate sentenced to a specific term or terms of years is eligible for parole on a date later than the date upon which he would be eligible if a life sentence had been imposed, then in such case the inmate shall be eligible for parole after having served 25 years, less commutation time for good behavior and credits for diligent application to work and other institutional assignments.  Consistent with the provisions of the New Jersey Code of Criminal Justice (N.J.S.2C:11-3, 2C:14-6, 2C:43-6, 2C:43-7), commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term.

 

                                     c.   Each adult inmate sentenced to a specific term of years pursuant to the "Controlled Dangerous Substances Act," P.L.1970, c.226 (C.24:21-1 et al.) shall become primarily eligible for parole after having served one-third of the sentence imposed less commutation time for good behavior and credits for diligent application to work and other institutional assignments.

 

                                     d.   Each adult inmate sentenced to an indeterminate term of years as a young adult offender pursuant to N.J.S.2C:43-5 shall become primarily eligible for parole consideration pursuant to a schedule of primary eligibility dates developed by the board, less adjustment for program participation.  In no case shall the board schedule require that the primary parole eligibility date for a young adult offender be greater than the primary parole eligibility date required pursuant to this section for the presumptive term for the crime authorized pursuant to subsection f. of N.J.S.2C:44-1.

 


 

                                     e.   Each adult inmate sentenced for an offense specified in N.J.S.2C:47-1 shall become primarily eligible for parole as follows:

 

                                     (1)  If the court finds that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior or finds that the offender is not amenable to sex offender treatment, or if after sentencing the Department of Corrections in its most recent examination determines that the offender is not amenable to sex offender treatment, the offender shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term or one-third of the sentence imposed where no mandatory minimum term has been imposed.  Neither such term shall be reduced by commutation time for good behavior pursuant to R.S.30:4-140 or credits for diligent application to work and other institutional assignments pursuant to R.S.30:4-92.

 

                                     (2)  Young adult offenders shall be eligible for parole pursuant to the provisions of N.J.S.2C:47-5, except no offender shall become primarily eligible for parole prior to the expiration of any judicial or statutory mandatory minimum term.

 

                                     f.   (Deleted by amendment, P.L.2019, c.363)

 

                                     g.   Each adult inmate of a county jail, workhouse, or penitentiary shall become primarily eligible for parole upon service of 60 days of his aggregate sentence or as provided for in subsection a. of this section, whichever is greater.  Whenever any such inmate's parole eligibility is within six months of the date of such sentence, the judge shall state such eligibility on the record which shall satisfy all public and inmate notice requirements.  The chief executive officer of the institution in which county inmates are held shall generate all reports pursuant to subsection d. of section 10 of P.L.1979, c.441 (C.30:4-123.54).  The parole board shall have the authority to promulgate time periods applicable to the parole processing of inmates of county penal institutions, except that no inmate may be released prior to the primary eligibility date established by this subsection, unless consented to by the sentencing judge.  No inmate sentenced to a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole until service of a full nine months of his aggregate sentence.

 

                                     h.   When an inmate is sentenced to more than one term of imprisonment, the primary parole eligibility terms calculated pursuant to this section shall be aggregated by the board for the purpose of determining the primary parole eligibility date.  The board shall promulgate rules and regulations to govern aggregation under this subsection.

 

                                     i.   The primary eligibility date shall be computed by a designated representative of the board and made known to the inmate in writing not later than 90 days following the commencement of the sentence.  In the case of an inmate sentenced to a county penal institution such notice shall be made pursuant to subsection g. of this section.  Each inmate shall be given the opportunity to acknowledge in writing the receipt of such computation.  Failure or refusal by the inmate to acknowledge the receipt of such computation shall be recorded by the board but shall not constitute a violation of this subsection.

 

                                     j.   Except as provided in this subsection, each inmate sentenced pursuant to N.J.S.2A:113-4 for a term of life imprisonment, N.J.S.2A:164-17 for a fixed minimum and maximum term or subsection b. of N.J.S.2C:1-1 shall not be primarily eligible for parole on a date computed pursuant to this section, but shall be primarily eligible on a date computed pursuant to P.L.1948, c.84 (C.30:4-123.1 et seq.), which is continued in effect for this purpose.  Inmates classified as second, third or fourth offenders pursuant to section 12 of P.L.1948, c.84 (C.30:4-123.12) shall become primarily eligible for parole after serving one-third, one-half, or two-thirds of the maximum sentence imposed, respectively, less in each instance commutation time for good behavior and credits for diligent application to work and other institutional assignments; provided, however, that if the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence imposed on such inmates will not have been fulfilled by the time of parole eligibility calculated pursuant to this subsection, then the inmate shall not become primarily eligible for parole until serving an additional period which shall be one-half of the difference between the primary parole eligibility date calculated pursuant to this subsection and the parole eligibility date calculated pursuant to section 12 of P.L.1948, c.84 (C.30:4-123.12).  If the prosecuting attorney or the sentencing court advises the board that the punitive aspects of the sentence have not been fulfilled, such advice need not be supported by reasons and will be deemed conclusive and final.  Any such decision shall not be subject to judicial review except to the extent mandated by the New Jersey and United States Constitutions.  The board shall, reasonably prior to considering any such case, advise the prosecuting attorney and the sentencing court of all information relevant to such inmate's parole eligibility.

 

                                     k.   Notwithstanding any provisions of this section to the contrary, a person sentenced to imprisonment pursuant to paragraph (2), (3), or (4) of subsection b. of N.J.S.2C:11-3 shall not be eligible for parole.

 

                                     l.   A person serving a custodial sentence on the effective date of P.L.     , c.     (C.     )(pending before the Legislature as this bill) and subject to a mandatory minimum term of parole ineligibility pursuant to subsection e. of section 4 of P.L.2013, c.58 (C.2C:20-2.4), subsection c. of section 6 of P.L.2013, c.58 (C.2C:20-2.6), paragraph (4) of subsection c. of N.J.S.2C:20-11, subsections g. or h. of section 4 of P.L.1984, c.184 (C.2C:20-25), subsection b. of section 10 of P.L.1984, c.184 (C.2C:20-31), N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), N.J.S.2C:35-8, or subsection f. of N.J.S.2C:43-6 shall be eligible for parole after the effective date of P.L.    , c.   (C.        ) (pending before the Legislature as this bill) in accordance with subsection a. of section 16 of P.L.   , c.   (C.       ) (pending before the Legislature as this bill).

 

18.  Section 5 of P.L.1967, c.43 (C.2A:158A-5) is amended to read as follows:

 

5.  It shall be the duty of the Public Defender to provide for the legal representation of any indigent defendant who is formally charged with the commission of an indictable offense.

 

All necessary services and facilities of representation (including investigation and other preparation) shall be provided in every case.  The factors of need and real value to a defense may be weighed against the financial constraints of the Public Defender's office in determining what are the necessary services and facilities of representation.

 

Representation as herein provided for shall include any direct appeal from conviction and such post-conviction proceedings as would warrant the assignment of counsel pursuant to the court rules.

 

Representation for indigent defendants (a) may be provided in any federal court in any matter arising out of or relating to an action pending or recently pending in a court of criminal jurisdiction of this State and (b) may be provided in any federal court in this State where indigent defendants are charged with the commission of a federal criminal offense and where the representation is under a plan adopted pursuant to the Criminal Justice Act of 1964 (18 U.S.C. s. 3006A).

 

The Public Defender also shall provide for the legal representation of any eligible inmate who is serving a custodial prison sentence and requests assistance in petitioning the Superior Court for compassionate release in accordance with section 1 of P.L.2020, c.106 (C.30:4-123.51e).

 

The Public Defender also shall provide for the legal representation of any eligible inmate who is serving a custodial prison sentence in matters in which a prosecutor objects to the retroactive modification of a judgment of conviction in accordance with section 16 of P.L.    , c.    (C.    )(pending before the Legislature as this bill).

 

19.  (New section) The Commissioner of Corrections shall conduct a study on the anticipated expenses to upgrade the department’s existing data infrastructure in order to improve its ability to collect, track, and analyze data related to the criminal justice system.  The commissioner shall within six months of the effective date of P.L.    , c.       (pending before the Legislature as this bill) submit a report to the Governor, and the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) with recommendations for additional funding necessary for the department to invest in upgrades to its data infrastructure.”

 

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                                     Respectfully,

[seal]

                                     /s/ Philip D. Murphy

 

                                     Governor

 

 

Attest:

 

/s/ Parimal Garg

 

Chief Counsel to the Governor

 


 [BL(1]Didn’t this already happen????