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ISSUE No. 18
July 5 , 2007

CALENDAR: The next meeting will take place on Tuesday, July 17, 2007 at 10:00 a.m. in the first floor conference room of 44 South Clinton Avenue (3 Station Plaza).  The meeting will be open.

Commission News

July 1, 2007
Palm Beach Post

Drug-Free Zones Target Blacks Unfairly, Critics Say

June 24, 2007
Star Ledger
Booker Redirects His Anger At The War on Drugs

May 8, 2007
Home News Tribune

Editorial: Expand Drug Rehab In Lieu of Prison

May 7, 2007
New Jersey Law Journal

Commission Urging Expansion of Drug Courts To Repeat Offenders

May 6, 2007   
Bergen Record

Op-Ed:  State Panel Says Drug Courts Work

May 5, 2007   
Home News Tribute

NJ Commission Pushes Expanded Drug Treatment

May 3, 2007
New York Times

Expansion of New Jersey’s Drug Treatment Courts Is Encouraged

National Sentencing News

June 21, 2007
Washington Post

Sentencing Guidelines ‘Reasonable’, Justices Rule

June 12, 2007
Washington Post

High Court to Review Sentencing In Crack Cocaine Cases

May 2, 2007
Associated Press

Commission Recommends Lighter Minimum Sentences for Crack Cocaine Convictions

Document Library

Drug Policy

Cocaine and Federal Sentencing Policy
United States Sentencing Commission

Death Penalty

Evaluating Fairness and Accuracy In State Death Penalty Systems:  The Tennessee Death Penalty Assessment Report
American Bar Association


A Roadmap for Effective Offender Programming In California
California Department of Corrections and Rehabilitation Expert Panel on Adult Offender and Recidivism Programming


Facts about Prisons and Prisoners
The Sentencing Project

Prison and Jail Inmates at Mid-year 2006
Bureau of Justice Statistics


Recent Sentencing Decisions

New Jersey

State v. Porfirio Jiminez III, N.J.(2007)
Docket No. A-75-2006

Held : In Atkins v. Virginia, 536 U.S. 304 (2002), the U.S. Supreme Court held that the Eighth Amendment prohibits the execution of a mentally retarded defendant. However, the Atkins court left it to the states to adopt procedures for determining whether a defendant is mentally retarded. Thus, in State v. Jimenez, 188 N.J. 390 (2006), which is also known as Jimenez II, the New Jersey Supreme Court set forth the procedure to be used in New Jersey when determining whether a capital defendant is mentally retarded and thus is not eligible for the death penalty. The Jimenez II court held that the defendant has the burden of proving that he or she is mentally retarded by a preponderance of the evidence after the guilt phase but before the penalty phase. However, the Jimenez II court did not state whether there had to be a unanimous jury finding or whether only one juror had to find that the defendant is mentally retarded. Thus, Jimenez moved for clarification of the Supreme Court's opinion. The Supreme Court granted Jimenez's motion for clarification. The court concluded that a finding of mental retardation "is like a dispositive mitigating factor." Thus, the court determined that, if a single juror finds that the defendant has met his or her burden of proving mental retardation by a preponderance of the evidence, the defendant is not eligible to receive the death penalty.

State v. Jeffrey Drury, N.J. (2007)
Docket No. A-110-2005

Held: In this appeal, the Supreme Court held that carjacking is not a predicate offense elevating a second degree sexual assault to a first degree aggravated sexual assault. Because N.J.S.A. 2C:14-2a(3) does not include carjacking as an enumerated predicate offense, the plain language of the statute does not support a conclusion that committing a sexual assault during a carjacking is a first degree crime. The Court rejected the State’s argument that carjacking is simply a form of robbery, which is a listed predicate, finding the similarities between the two offenses insufficient for such a conclusion. The Court further observed that legislative history also supported its ruling. Finally, the Court remanded the matter for resentencing on defendant’s kidnapping and terroristic threats convictions pursuant to State v. Natale, 184 N.J. 458 (2005).

State v. Abdul Webster, N.J. (2007)
Docket No. A-37-06

Held: In a unanimous per curiam opinion, the Supreme Court held that commutation and work credits do not reduce a NERA parole ineligibility period.  The Court affirmed the Appellate Division for substantially the same reasons set forth in its reported decision (383 N.J. Super. 432 (App. Div. 2006)).  The Appellate Division had held that under N.J.S.A. 30:4-123.51a, commutation and work credits could not reduce a mandatory minimum term but could only be awarded after the term’s expiration.  The Appellate Division also rejected defendant’s argument that the deprivation of commutation and work credits violated his due process rights under the state and federal constitutions.

State v. Brett Kearns, __ N.J. Super. __(App. Div. 2007)
Docket No. A-5034-04T4

Held: In this appeal, the Appellate Division, on the State’s appeal from defendant’s sentence following a revocation of probation, agreed that the trial judge erred in failing to impose a mandatory NERA parole disqualifier. Defendant pleaded guilty to second degree robbery, and was sentenced to a minimum five year term with an 85% period of parole ineligibility. Defendant succeeded in moving to reduce his sentence to probation, but later pleaded guilty to violating that probation. The trial judge rejected the State’s request to reinstate the original sentence, and imposed a four and a half year sentence with a 50% period of parole ineligibility. Reducing defendant’s sentence under Rule 3:21-10(a) resulted only in a suspension of his original sentence pending successful completion of his probationary term. Once he violated probation and was resentenced, a NERA sentence was required. State v. Vasquez, 129 N.J. 189 (1992), does not allow trial judges to impose a shorter parole bar than that required by NERA, and N.J.S.A. 2C:43-7.2a manifest a clear and unmistakable legislative intent that courts shall fix a minimum term of 85% for enumerated first and second degree crimes. Parole ineligibility under NERA is not waivable, and it does not matter that the term of incarceration is imposed following a revocation of probation on a NERA-mandated crime. Because the NERA parole disqualifier was compulsory, defendant’s sentence was illegal and therefore subject to correction at any time.

United States Supreme Court

Rita v. United States, U.S. (2007)

Held: In this appeal, the United States Supreme Court ruled that a prison sentence falling within the federal sentencing guidelines may be presumed to be a reasonable sentence on appeal, but the presumption of reasonableness is not binding.

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NJ Commission to Review Criminal Sentencing | PO Box 095 | Trenton, NJ 08625-0095
Tel: 609.341.2813 | Fax: 609.341.2816 | Email: bennett.barlyn@lps.state.nj.us