Judge Sumners continued in relevant part: Turning to the legislative history and language of the PTI statute and Rule 3:28, there is nothing that specifically addresses whether a prosecutor can impose the condition of jail time for a defendant’s admittance into PTI. That said, in examining the statutory language and policy goals of PTI, we are convinced defendants’ PTI admission should not have been conditioned on serving jail time.
N.J.S.A. 2C:43-12(a) sets forth the public policy goals of PTI:
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with “victimless” offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or
(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or
(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.
The same policy goals are expressed in PTI Guideline 1. Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 1, following R. 3:28 at 1233 (2017). Guideline 1(b) mirrored the language of N.J.S.A. 2C:43-12(a)(2), and its commentary, “recognizes that diversion in appropriate circumstances can serve as sufficient sanction to deter future criminal conduct.”
Logic dictates that if P.T.I is supposed to be available as a means to avoid a criminal record via a probationary sentence, it should be available as a means to avoid jail. The hierarchy of criminal penalties from least severe to most severe, involves: fines, probation, county jail incarceration, and state prison incarceration.