The question that often arises when faced with mandatory imprisonment is whether a labor program can be substituted for jail. The short answer is “no”.
N.J.S.A. 2B:19-5 is the law that requires the sheriff “or other authorized officer” of each county in New Jersey to establish a labor assistance program as an alternative to direct incarceration. Alternatively, the probation services division must establish an enforced community service program.
Still, there are a handful of counties with no such programs. This begs the question: how can the county authorities avoid doing what is required by law? They avoid doing what is required by law because our courts have taken such a narrow view of who can be eligible for the programs that almost no one is interested in them. The people who most desire the programs are those facing mandatory jail sentences, meaning that if they are convicted of certain offenses, the judge is required by law to sentence them to jail. A third D.W.I. or Driving While Suspended due to a D.W.I. conviction are two common offenses requiring mandatory jail time upon conviction, 180 days and 10 days of jail respectively. Note that most of the mandatory jail sentences from municipal courts are related to D.U.I.s and that prosecutors and judges are prohibited from amending these charges as part of a plea bargain.
The effect of our courts’ narrow view regarding S.L.A.P. eligibility is that the people who want the labor assistance programs are ineligible and those that are technically “eligible” for the program are almost never facing actual jail time. Therefore, they don’t want it as an alternative to jail because they are not really faced with jail. In light of this, counties get away with not establishing the required work programs because almost no one is interested in the programs and no one is interested in lobbying for establishment of the programs.
In 2005 a published law division case, the Court held that the purpose of S.L.A.P. is to effectuate enforcement of community service and fines imposed by the courts, not as a sentence in D.W.I. cases.
In 2010, a published municipal court decision relied on the plain language of our D.W.I. and Driving while suspended for D.W.I. statutes. Each states that persons convicted shall be imprisoned “in a county jail.”
In a 2011 unpublished Appellate Division opinion, a panel of judges again focused on the plain language of the driving while suspended for D.W.I. statute, namely that persons convicted “shall be imprisoned in the county jail for not less than 10 days or more than 90 days.” Note that the fact that this opinion was “unpublished” means that it can only be cited as law because it is persuasive, as opposed to binding. This leaves open the possibility that a subsequent published (binding) decision might overrule it. The possibility of an overrule appears to be very slim in light of the general consensus of the courts in favor of the current state of the law.
In a 2011 unpublished municipal court opinion, a court carved out a narrow S.L.A.P. program exception despite the plain language of the statute mandating what would otherwise appear to be mandatory imprisonment. In so doing, the court drew a distinction between statutory language calling for a mandatory “period of imprisonment” and mandatory “”imprisonment in the county jail.” The Court held that the penalty for driving under suspension while in an accident that injures another did not contain the phrase “in the county jail,” and therefore gave court’s discretion to sentence offenders to the S.L.A.P. program as their “period of imprisonment”. The practical effect of the distinction is that persons convicted of driving under suspension while in an accident that injures another are not facing mandatory jail time. Due to the fact that so many counties do not even offer a S.L.A.P. program, they are not facing mandatory labor or jail time, despite the statutory language calling for a “period of imprisonment.” Thus, we see our courts’ overly narrow interpretation of S.L.A.P. eligibility has the unintended practical effect of helping a particular class of offenders avoid what would otherwise be considered mandatory jail or labor.
Note that the same court affirmed that persons convicted of a third driving while suspended were ineligible for S.L.A.P. because the statutory penalty for that offense used the words “in the county jail.” The ironic result here is that those convicted of causing an accident and injury while under suspension can participate in a labor program to avoid jail , whereas those who cause no harm, but repeatedly drive under suspension must be sentenced to jail. Similarly, a person who causes no harm and is convicted of their first driving while suspended must be sentenced to jail if their license suspension was due to D.W.I.
Finally, in 2014, the Appellate Division issued another unpublished opinion confirming that a person convicted of their first driving while suspended, if their license suspension was due to D.W.I., are ineligible for S.L.A.P. The court again relied on the penalty statute’s reference to imprisonment “in a county jail or workhouse” as evidence of S.L.A.P. ineligibility.
With all of this ineligibility, it begs the question: what kind of defendants are actually participating in these work programs. Since the programs are alternatives to discretionary municipal court jail sentences (as opposed to mandatory), the participants are few and far between. It is very rare for a judge to impose a discretionary jail sentence for a municipal court offense. No attorney worth their salt would accept such a sentence on behalf of their client. Even fewer courts would insist on jail for a very minor offender in the face of having to conduct motions and/or a trial because a plea agreement could not be reached. Thus, work programs are by and large reserved for defendants who (1) are unwilling to apply for a public defender and/or pay a private attorney; (2) who run in to a judge who is bent on handing out the harshest of penalties to a very minor offender; and (3) are unable or unwilling to accept successfully appeal their jail sentence to a higher court. Those rare, unfortunate souls accept work programs not because it is their only alternative to jail, but because it is their only alternative to hiring a qualified attorney.