Parole Ineligibility and Intermittent Jail Sentences (Part 2)

The Appellate Division continued: Furthermore, the State’s and the Attorney General’s intermittent-release-is-like-parole argument fails because an intermittent sentence does not subject a defendant to parole-like conditions or supervision. Nor does N.J.S.A. 2C:43-2(b)(7) authorize a court to modify an intermittent sentence, based on an offender’s behavior during periods of release.

We also reject the contention that implicit in the mandate of a 180-day sentence is the requirement that the days be served without interruption. The statute does not say so expressly. By contrast, in multiple other provisions, the Legislature expressly stated when a period of days shall be “consecutive days.” See, e.g., N.J.S.A. 2C:7-2(a)(2); N.J.S.A. 2C:46-2(a)(2); N.J.S.A. 2C:43-8.1; see also N.J.S.A. 2A:4A-43(c)(1) (disposition of delinquency cases).

According to the State, “term of imprisonment” implies uninterrupted service. The State’s argument proves too much. If “term” were read to mean an uninterrupted period of time, then even the general provision that fourth-degree offenders shall receive a “specific term” not more than “18 months,” would preclude intermittent sentences. Thus, not even the least serious criminal offender would be eligible for an intermittent sentence under the Code. We reject such an interpretation.

We are persuaded that “term of imprisonment” means simply a period of imprisonment, which does not preclude an intermittent period. See Silva, (holding, based on the dictionary definition of “term,” that “term of imprisonment” refers to “the length or duration of confinement rather than the manner in which it is to be served”).

Nor does the use of the word “fixed” imply an uninterrupted sentence. As the past participle of the verb “to fix,” “fixed” evidently means that the 180-day minimum is set, and cannot be reduced, either by the court, or by application of commutation time or work credits. In that respect, a “fixed minimum sentence” is not substantively different from a “mandatory minimum sentence.”

When arguing against an “implicit” statutory interpretation, it is effective to note examples of the Legislature expressly providing for the interpretation. Then, you argue that if the Legislature intended the “implication” it would have expressly provided for it as it has in past instances.