On August 6, 2025, a unanimous New Jersey Supreme Court decided the Salem County case of State v. Delshon Taylor. The principal issue under N.J.S.A. 2C:43-6.2 concerned the standard of review of a prosecutor’s denial of a Graves Act waiver.
Justice Pierre-Louis, my former law school classmate, wrote for the Court in relevant part: It is evident from the statutory text that Graves Act waivers relate to sentencing and are therefore not akin to PTI determinations. We find no reason to depart from the substantial body of precedent in which we have held that separation of powers principles require that courts be able to review prosecutorial determinations about sentencing — an inherently judicial function — for ordinary abuse of discretion. In keeping with our precedent, we hold today that review of a denial of a Graves Act waiver will be for ordinary abuse of discretion.
We note that the additional core principles identified in A.T.C. — the promulgation of guidelines by the Attorney General and required statements of reasons to facilitate judicial review, are already in place for Graves Act waiver decisions. In 2008, the Attorney General issued a Directive “to ensure statewide uniformity in the exercise of prosecutorial discretion in implementing N.J.S.A. 2C:43-6.2.” Directive to Ensure Uniform Enforcement of the “Graves Act” 10 (amended Nov. 25, 2008). In addition to providing that guidance, the Directive mandates that a prosecuting agency “document in the case file its analysis of all of the relevant aggravating and mitigating circumstances” and requires the prosecuting agency to keep a copy of its case-specific memorialization in a separate cumulative file to facilitate audits the Attorney General may direct. In 2017, we further required prosecutors to provide defendants with a statement of reasons when denying waivers.
Although we hold that abuse of discretion is the proper standard of review, we reinforce that this standard is nonetheless deferential. It imposes a “heavy” burden on defendants, and defendants must “show clearly and convincingly that a prosecutor abused his or her discretion in order to secure relief.” Assignment judges must not substitute their judgment for that of the prosecutor. For the forgoing reasons, we reverse the Appellate Division’s judgment and remand the matter for the trial court to consider the waiver denial under the abuse of discretion standard.
Arguing over whether the proper standard is “abuse of discretion’ or ‘gross and patent abuse of being discretion’ tends to indicate that the State is being unreasonable in this case. Both are very deferential standards. If a prosecutor wants to deny a Graves Act waiver, they usually only need to be diligent in listing good reasons for denial. Here, the State is essentially arguing that they may have abused their discretion, but they did not grossly and patently abuse it. A tacit admission to an abuse of discretion is not consistent with a prosecutor’s role to do justice.
